Today it’s official. Shuping, Morse & Ross, the law firm who had attempted to foreclose on our home, was released from the suit as agreed to by mutual assent of the parties. Now it’s just the Bank of America and the Bank of New York Mellon who remain. And since they are both using the same attorney, my notification costs should be much lower now.
Now that I’ve had a chance to review Bank of America and Mellon Bank’s joint Motion to Dismiss, I need to work on my reply. Since most of my allegations have previously been made by other litigants, my research begins by looking at similar cases in the PACER system, and finding case law that supports my case.
One of my Causes of Action, however, is novel, and not likely covered in any other lawsuit. It’s Cause of Action #10 – Failure to Prove Damages. The legal theory involved is that you can’t sue for more than the actual damages you’ve incurred. If your neighbor burns down your house, and your insurance company reimburses you for your loss, you can’t sue your neighbor for the same loss again. You’ve already “been made whole.”
Since I’ve never done any legal research before, I ask my contracted law firm to do the legal research on this one item. Looking forward to see what they come up with …
While I’ve found great research supporting most of my case in the PACER system, Cause of Action #10 is still lacking. The law firm that I contracted with in India responded that they couldn’t find any case law to support this action. Very disappointed in their follow through.
Instead of giving up, I decided to do a little research on my own. After spending the better part of day learning how to research case law using a combination of google and fastlaw, I was able to find this reference:
A cardinal principle of law is that in the absence of punitive damages a plaintiff can recover no more than the loss actually suffered. “When the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages.” Lovejoy v. Murray, 70 U.S.(3 Wall.) 1, 17, 18 L.Ed. 129 (1865).
Now, simply a matter of completing my motion, adhering to all of the formatting and procedural requirements of Federal Court, and filing my response.
Well, it took a little while and a little effort, but today I finished my response to the banks’ Motion to Dismiss. You can see a copy here. I’ve also moved all of the major filings to an easy-to-access directory which you can see below (no signup required):
http://ProSeAction.org/BoALawsuit/
As far as the question of biased judges is concerned, after consulting with several lawyers, I decided to put forward a motion asking the judges to disclose if they had ever spoken at an event attended by big banks, what was said, what money was exchanged, etc. I concluded with a request that if this has indeed happened, that the judges involved would recuse themselves from my case.
Today I received another response from the banks, this one to counter my response to their Motion to Dismiss. What I find unbelievable is, that they are arguing over points that directly contradict written documentation that they sent to us as their client.
Specifically, in several of their letters, they stated ““Under the federal Fair Debt Collection Practices Act and certain state laws, Bank of America N.A is considered a debt collector.” Now they are arguing that “simply sending a letter stating that one is a “debt collector” does not change one’s status to that of a “debt collector.””
Time to prepare another response to their response 🙂
You can see the rest of their motion here.
Can Bank of America foreclose on a homeowner, without showing any evidence that their client actually owns the promissory note?
Yesterday was the deadline to file responses to the Defendants’ Motion to Dismiss, and that is the question that I focused on in my reply. You can see a copy of my full response here.
Now it is in the judges hands. We should know shortly.
Yesterday, I received a new motion from Bank of America whereby they have asked the court to strike our latest response. According to their “Motion to Strike,” our most recent filing was “procedurally improper” and “without merit.”
This is despite the fact that Bank of America was responsible for extending the comment period with their prior Motion to Stay, and despite the fact that they also issued a surreply to our previous response.
When I ask myself, “why would BofA file this motion?,” I’m left with three possibilities:
If it’s the latter, maybe they didn’t like my references to the Nevada Attorney General’s lawsuit against them. Or maybe they didn’t like my references to the Judge Totenburg’s ruling that affirmed the legal claims in my case.
Either way, I now need to decide what to do next. I’ll let you know, as soon as I figure it out …
After doing a little research, it looks like a surreply is simply a reply to a reply. And while it’s not specifically allowed, it’s not automatically disallowed either. In other words, it’s up to the judge to decide whether to strictly limit replies or to allow them, based on their content and their relevance to the case.
For these reasons, I filed my Response to Motion to Strike last week. I argued that I was within my 14 day time limit to respond to the last motion, as well as within the extended response period that resulted from the Defendant’s own Motion to Stay Pretrial Deadlines.
I also argued that, should the judge choose to strictly enforce rules on surreplies, he should also strictly enforce the rule on the Defendants’ last filing, which was also a surreply. I also suggested that if they are to strictly enforce these rules, he should also strictly enforce the standing order on pages limits.
Once again, it’s in the judge’s hands. We’ll see if we get any decisions before the Defendants file any other motions …
After waiting in limbo for over three months, the judge has finally issued his first ruling in the Fenello vs Bank of America lawsuit.
The good news is, we’re still waiting for a decision on the only issue that matters: the Motion to Dismiss and the big question — “Can Bank of America foreclose on a homeowner, without showing any evidence that that their client actually owns the promissory note?”
The bad news is, the judge ruled in favor or BofA in all three of these motions (the Motion for Leave, Motion for Recusal, Motion to Strike). Ironically, we lost on the judicial recusal because we did not have any evidence of judicial bias. With this ruling, we are now building this evidence for our appeal, should one be necessary.
Below you can see the ruling in its entirety, which is also available on our newly created Case History page, where you can see all of the major filings organized by topic. As always, comments welcome …
Judge’s First Ruling in the Fenello vs Bank of America Lawsuit
Well, it took a little over 8 months, but we finally heard back on the defendants’ Motion to Dismiss. Of the 13 Causes of Action in our original lawsuit, the Judge dismissed 12 of them. While not the best results in the world, I’m extremely happy that we survived.
Next, we have until next Friday to amend our complaint to address deficiencies with our remaining cause of action. Obviously, I’m not very good at this yet, and still need to figure out what I did wrong that allowed the other causes to be dismissed. Almost all of the causes were dismissed due to my “failing to state a claim upon which relief could be granted.”
Like everything else in this case, I’ll post what I learn about this here. In the interim, here’s the court’s ruling (which is also available in the Case History summary link).
Until next time …
