Multi-State Settlement Revisited

Last year, a big deal was made when 49 state attorneys general and the federal government announced a historic joint state-federal settlement with the country’s five largest mortgage servicers.  The settlement provided for as much as $25 billion in relief to distressed borrowers and direct payments to states and the federal government.

Unfortunately, even though Bank of America was one of the banks who agreed to the settlement, even though BofA agreed to pay almost $9 Billion to settle charges against it, and even though BofA agreed to stop their abusive foreclosure practices, they didn’t change their behavior in our case.

So, on September 20th, 2012, we sent a letter to numerous state and federal departments and regulators complaining that BofA was continuing their illegal practices in violation of the settlement.  And we heard nothing back …

Turns out, unsurprisingly, that we were not alone.  This week, New York state’s attorney general announced plans to sue Wells Fargo and Bank of America over alleged violations of a national mortgage settlement reached last year.  Atty. Gen. Eric Schneiderman’s office said Monday it intends to sue the banks for “repeatedly violating the terms” of the settlement.

Other state attorney generals are considering the same.  Hopefully, the era of “too big to jail” is coming to an end.  Stay tuned …

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It’s YOUR Law That Matters

To bring everyone up-to-date, this blog is about my experiences (as a non-attorney) suing Bank of America in court.   While mostly a history, I’ve just recently started to write about the things I’ve learned about our legal system along the way.

In my first “lesson,” I described how laws vary by jurisdiction, and how appellate courts determine what a law means in your area.  You may be wondering why this should matter to you.  Today, I’ll share one example from my case that illuminates this topic.

Most of the letters I received from Bank of America leading up to my case, included a clause that read “Under the federal Fair Debt Collections Practices Act and certain state laws, Bank of America is considered a debt collector.

So you’d think they’d be considered a debt collector under the Act, correct?

Well in my circuit, you’d be wrong.

In my case at least, the judge has found (so far) that sending a letter like this does not mean that Bank of America is a debt collector under the Act.  You see, the Act has a very specific definition of the term “debt collector,” and certain loan servicers can be exempted.

We’ve argued that the loan servicing industry has changed substantially since the law was written, and that the actions of Bank of America are clearly as a debt collector in this case.  Three other circuits, it turns out, have begun to agree with us on piercing these protections.

We are currently waiting on a ruling on this (and other) issues.

If we lose, we will need to appeal to get a ruling on this at the circuit court level.  If we win that one, we can change the way this law is applied throughout the three-state area.

In either case, this issue highlights the importance of understanding what a law means in your jurisdiction.  It also highlights how all legal progress is made at the appellate level … and how it can take years to accomplish.

As always, comments welcome.

Until next time.

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Response to BofA’s Opposition to Reconsideration

On Friday, we filed our response to Bank of America’s Opposition to our Motion to Reconsider.   You can read the filing here, or you can review all of the major filings on our Case History page.  It’s now in the Judge’s hands.  More soon.

As always, comments welcome …

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Bank of America’s Responds to Motion to Reconsider

As expected, Bank of America has responded to our Motion to Reconsider.  You can read the filing here, or you can review all of the major filings on our Case History page.  I’m working on a response now.

As always, comments welcome …

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The Law is Not Uniform

With Today’s post, I’m starting a new category called “Lessons Learned.”  You’ll be
able to access these types of postings via the “Categories” links in the right hand column.

The Law is Not Uniform

  • What a law says, is not what a law means
  • Laws are interpreted based on decisions made on similar cases at the “Court of Appeals” or “Supreme Court” level.
  • Each state has one or more Court of Appeals.  They decide what a states’ laws mean.  These decisions are binding on all state and federal courts in their jurisdiction.
  • Each state belongs to one of 13 federal districts, each having its own Court of Appeals.  They decide what federal law means, subject to federal and state law.  Their decisions are binding on all federal and state courts in their jurisdiction.
  • The vast majority of lawsuits are filed in state court:
    – State Court: 30,000,0000 cases filed
    – Federal Court: 1,000,000 cases filed
    (From the Federal Judicial Center)
  • A federal law can have as many as 13 different interpretations that are binding on lower courts at the same time.
  • A state law can have multiple interpretations that are binding on lower courts at the same time.
  • All legal progress is made on appeal.

To learn more about binding decisions, “Stare Decisis,” and how they apply, please see Legal Precendent.

As always, comments welcome …

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Motion to Reconsider Filed

Well, we made the deadline, and filed our Motion to Reconsider.  I got everything I wanted in there, in case an appeal is required.  You can read the latest on our Case History page.

Also important, with this filing, I will now start to share what I’ve learned about our legal system, and how pro se litigants can use it to help fix what’s going on in our country.  For a good overview of where I’m going with this, please check out my blog post “For the Love of God, Guns, and Governance.”

More soon, and as always, comments welcome …

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The Verdict is In !!! (and it’s not good)

Well, after a very long wait, the judge has ruled that we do not have the right to amend our complaint, and has even reversed his prior indications and ruled that we do not have a claim in our FDCPA cause of action. It almost looks like he didn’t even read our filings.

You can read the latest rulings here:

Another interesting tidbit.  While this case has dragged on, Bank of America has transferred the servicing of the note to Select Portfolio Services.  This means two things:  1) That the new servicer will have to start the foreclosure process over, and 2) they will not be exempted from the FDCPA like Bank of America was.

Next, we have 28 days to file a Motion to Reconsider.  Then if necessary, we have 30 days from that ruling to file an Appeal.

As always, comments welcome, and more soon  …

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Still Waiting …

Well, it’s been over three months since the last filing in our case, and we are still waiting to see if our case is allowed to go forward.  Thank you for all of your words of support, and please check back here often (or subscribe to this blog) to find out the judge’s decision.

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A Flurry of Motions, Round 2

Since I filed my first amended complaint, we have been subjected to another flurry of motions designed to get this case dismissed before trial.  Here’s an update:

As always, the complete history of major filings in this case is publicly available on our Case History page, with a selection also available in my Scribd page.

Now it’s in the Judge’s hands.  More soon, and comments welcome …

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1st Amended Complaint Filed

As per the judge’s instructions, I filed an amended complaint that restated my FDCPA claim, and did not revisit any of the causes that were previously dismissed.  I did, however, add two new causes of action that were not previously pled.

Failure to State a Claim

After doing additional research, it appears that my major mistake with my prior complaint was not including the requisite “elements” for each of my causes of action.  Hopefully, this has been fixed in this version.  (I’ll be writing more about this in future postings).

Added Causes

When going through this exercise, turns out that the two causes I added had elements that were relatively easy to prove.  In Georgia, “Attempted Wrongful Foreclosure” was pretty easy, and “Negligence” was especially easy.   [Negligence appears to be a cause that could be added to just about any complaint, especially if you are suing a large company for any tort.]

Anyway, more soon, and comments welcome.

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