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Homeowner Beats Bank Of America In Small Claims Court

First Posted: 01- 4-11 04:40 PM   |   Updated: 01- 6-11 12:10 PM

A California homeowner sued Bank of America in small claims court and won $7,595 from the bank after it burned him on a mortgage modification.

“It was a good victory for me and I think for homeowners around the country,” Dave Graham told HuffPost.

Graham, who lives in Big Bear City, Calif., applied for a loan modification under the Obama administration’s Home Affordable Modification Program, which is supposed to give eligible borrowers a “permanent” five-year modification if they make reduced payments during a three-month trial period.

Graham said his trial dragged on for 18 months. He said he made every payment until Bank of America told him in May that he didn’t qualify for HAMP, and that he’d lose his home unless he paid about $7,000 to make up the difference between his normal monthly payments and the reduced payments he made during the trial period.

“Each month when I did talk to them I was informed it’s still under review — as long as you keep making this trial payment everything will be fine,” said Graham, 53. “At some point I started receiving notices from my credit cards that they were reducing my credit amount due to recent problems making my mortgage payment on time.”

Bank of America mortgage service specialist Anthony Lopez admitted during a Dec. 15 hearing that the bank continued taking Graham’s payments even after Graham had no chance of getting a modification, according a transcript of the hearing provided by Alan Sims, a forensic real estate specialist who helped Graham make his case.

“People that do take these calls arenʼt letʼs say experienced or certified negotiators. They are collectors,” Lopez said, according to the transcript. “They have minimal training in the modification process.”

Graham, who faces reduced income after retiring from his job as a shift foreman at a grocery distribution center, said he never would have bothered with HAMP had the bank not sent him a packet saying he should apply. “I would have found some way to [make my payments] if I had to,” he said. “It may even been that we’d have fallen behind a month or two. I certainly wouldn’t have been in this sort of shape.”

It’s the classic HAMP bait-and-switch: Homeowners are told they’re eligible for the program but eventually discover the foreclosure process, triggered by the reduced payments, moved faster than the modification process.

More people have been bounced from the program than have received permanent modifications, and federal auditors have even pointed out that the program sometimes causes the foreclosures it was created to prevent. Bank of America has stood out for its poor HAMP performance. The Obama administration has done almost nothing to hold servicers accountable and improve HAMP.

Big Bear Grizzly, which broke the news of Graham’s victory, reported that Bank of America is expected to appeal. A Bank of America spokesman couldn’t immediately confirm for HuffPost whether that will happen.

Lots of people have sued big banks for their bad faith HAMP efforts, but Graham may be the first to try it in small claims court. It won’t save his home — he expects the foreclosure to go through — but it gives him some dignity.

“Both small claims courts judges and juries often have a refreshing sense of justice that allows these sorts of bellwether decisions,” HAMP expert Alan White told HuffPost. “Judges are also less reticent to denounce unfair practices in small stakes individual cases than in government enforcement or class actions.”

The National Consumer Law Center is involved in several class-action lawsuits against banks and others over broken HAMP promises. (Those lawsuits, if successful, will prevent foreclosures.) The NCLC’s Charles Delbaum told HuffPost that Judge John Pacheco’s “terrific decision” in Graham’s case picked up on the same theme of more than a dozen actions against the likes of Bank of America, JPMorgan Chase, Wells Fargo, and CitiMortgage.

“[I]t is unconscionable to string homeowners along far beyond the three month trial periods they and their banks have agreed to,” Delbaum emailed, “allowing them to become more and more behind on the payments due under their original loan, making the hole they are in ever deeper and harder to dig out of, and then to tell them they weren’t eligibile for the program in the first place — something the banks are required to determine within the three month trial period.”

22 Responses

  1. Does anyone have any info on these two BOA Robosigners?: Yolanda Smith, Asst. VP, and Rhoena Rice, VP

  2. Bank of America recently requested that they be allowed to increase their dividend for all that owned Bank of America stock. They claimed they had a healthy balance sheet and wanted to attrack more investors into purchasing the BA stock because of the increased dividend. This is something that the gov’t has allowed most other banks to do. The gov’t denied this request by BA and no reason was publicly given. Something that the commentators on the stock channel said they did not really understand, because almost always a reason is given. The stock has continued to fall ever since they were denied. My quess is that something about the balance sheet or perhaps the fact that Bank of Destroying America is so hated by so many. Now a few months later they are running ads about “their great community involvement” and emails stating that they are transferring loans. My guess is that they are trying to address their horrible image which includes skrewing our military, crushing people in there loan modification scams AND there is somethibng fundamentally woring with their mortgages and or mortgage servicing. . I even received a call on my cell phone from BA rep wanting to tell me about BA new community improvement involvement program. When I told him I could not talk and was in a meeting he hung up on me. Typical rude BA behavior. While I do not completely understand alot of the legal things posted I do know that these actions do mean something is up with BA mortgages. It also speaks loudly that the gov’t is fully aware of BA tactics and short falls but they will not publicly say what is amiss because why would they destroy what they have just bailed out? They also know that the voting public would be enraged if BA stock soared after so many have been crushed. I beleive that with pending elections the best bet for everyone is to keep the pressure on Bank of Destroying America by making it part of the discussion. I know so many people that despise this bank and would love to let the gov’t know just how much damage it has done in our country. Perhaps a rally on Washington would be the answer. Aftering looking at the number of posts on the internet the number of people skrewed over by these banks is incredible. Keep writing your elected officials because while it may not directly help at least it is keeping Bank of Destroying America from adding more to its coffers by way of stock. Banks actions are always motivated by profit and greed. When their actions cease to be profitable they will change their behavior not because it is the right thing to do but because monitarily it makes sense. Gov’t officials are elected they generally vote and take action in such a way that is best for them. Can you imagine the outcry had BA been allowed to increase its dividend, have the stock soar while so many have been defrauded by their actiions. We are coming into elections and if the pressure is kept on change will happen not because it is right but because it is in the gov’t and banks best interest to do so.


  4. The non depository bank I am fighting is Deutsche Bank also. I paid an attorney over eight thousand to help me when she decided it was in my best interest to instead file bankruptcy, after she had my money. I begrudingly filled out the bankruptch chapter 13 paperwork, and waited from December 2009, to August of 2010 and nothing happened, she did not file, stating she was waiting for the foreclosure paperwork to be posted on my house. It has never come. Maybe because of the letter I had paid another attorney before her that sent out a letter of dispute afforded by the FDCPA they never answered. That attorney sent me to the second attorney, and nothing has been filed to date by her. so in August of 2010 i filed a lawsuit Pro Se. I have gone to multiple attorneys for help and consultation. None of them believe in fighting the banks. The second attorney above told me bankruptcy was a better way because the judges in Washington State will not rule for the homeowner. If I had known about the small claims court case I would have tried that in a flash. The attorney is correct , the judges in Washington are partial to the banks. The records departments will not make a move either. i was told by the department of Records in King County, they follow the lead of Rob McKenna, whom has sat by without publicly making a stand for homeowners. Which means the department of records in King County is still willing to except fraud documents. I sent a pile of proof of fraud signers in Washington state, including Chrystal Moore, a mis-spelt Krystal Moore, Krystal Hall, and Linda Green, Leticia Quintana, and G. Hernandez and they are not going to do anything about it unless Rob McKenna does. I sent them in hard copy and e-mail to Rob McKenna.

  5. A smart person told us to use the doctrine of Laches!

    The Doctrine of Laches consists of the following elements:
    1. Unreasonable lapse of time.
    2. Neglect to assert a right or claim.
    3. To the detriment of another.
    If these three elements are met, then the Doctrine of Laches will act as a bar in court.

    If an adverse party unreasonably delays informing you of a right or claim and this results in permanent damage to your ability to defend your self then such a claim may be barred from court.
    Black’s Law Dictionary 6th Edition.

    Laches/laechaz/leychez/laeshez/. “Doctrine of laches” is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in court of equity. Wooded Shores Property Owners Ass’n Inc. v. Mathews, 37 Ill. App.3d 334, 345 N.E.2d. 186, 189. The neglect for an unreasonable and unexpained length of time under circumstances permitting diligence, to do what in law, should have been done. Lake Development Enterprises, Inc. v. Kojetinsky, Mo.App. 410 S.W.2d 361, 367.

    Neglect or omission to assert right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to adverse party, People ex rel. Mulvey v. City of Chicago, 292 Ill.App. 589, 12 N.E.2d 13, 16; neglect or omission to do what one should do as warrants presumption that one has abandoned right or claim, Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781, 784; negligence by which another has been led into changing his condition with respect to property or right, Heyburn Bldg. Co. v. Highland Motor Transfer Co., 245 Ky. 514, 53 S.W.2d 944, 946; negligence or omission seasonably to assert a right, Davidson v. Grady, C.C.AFla., 105 F.2d 405, 408; omission of something which a party might do and might reasonably be expected to do towards vindication or enforcement of his rights, McCauley v. Northern Texas Traction Co. Tex.Civ.App., 21 S.W.2d 309, 313; omission to do what law requires to protect one’s rights under circumstances misleading or prejudicing adverse party; unconscionable, undue, unexcused, unexplained or unreasonable delay in assertion of right, Loveland Camp No. 83, W. O. W., v. Woodmen Bldg. & Benev. Ass’n, 108 Colo. 297, 116 P.2d 195, 199; unreasonable or unexplained delay in asserting right which works disadvantage to another, Kennedy v. Denny, 237 Ky. 649, 36 S.W.2d 41, 42.

    Conduct of party which has placed other party in a situation where his rights will be imperiled and his defenses embarassed is a basis of laches. State v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17, 19. Knowledge, unreasonable delay, and change of position are essential elements. Shanik v. White Sewing Mach. Corporation, 25 Del.Ch. 371, 19 A.2d 831, 837. Laches requires an element of estoppel or neglect which has operated to prejudice of defendant. Scarbrough v. Pickens, 26 Tenn.App. 213, 170 S.W.2d 585, 588. See also Equitable estoppel.

  6. Carie, I did my loan mod in 2008, before the scam was out of the bag. I have bee n fighting for my home ever since. I have warned many clients and friends and not to do it. Only if you are trying to bide time, and never sign or start paying mod payments. It is a total con to steal your house. i somehow believe it was a set up from the government down to get people into foreclosure that would have found every way possible to come up with the money to stop foreclosure. Once you are in their grips it is hell.

  7. Section 6 of RESPA also provides for damages and costs for individuals Or CLASSES OF INDIVIDUALS in circumstances where servicers are shown to have violated the requirements of the Section. You should seek legal advice if you believe your rights have been violated. notification is a requirement of Section 6 of the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. 2605)
    Section 6 of RESPA also provides for damages and costs for individuals or CLASSES OF INDIVIDUALS in circumstances where servicers are shown to have violated the requirements of that Section.

  8. oops, I meant Deutsche Bank…

  9. I feel like a broken record…everyone out there trying to get a loan mod: IT’S A SCAM!!! DON”T DO IT! Look at the “loan” number on your statement (which is from a SERVICER),…it’s different from the one on your original loan docs…that’s your first clue that deception and fraud is afoot.
    It’s ALL CALCULATED (the lost documents, etc.), to steal your money as long as they can and then foreclose ANYWAY.
    If you get a “permanent” loan mod, it’s only a modification of FALSE DEFAULT DEBT. And they make you SIGN AWAY YOUR RIGHTS. They are not modifing for a “real” lender…the servicer bought “collection rights” on the “debt”…like they do with credit cards…
    The ONLY good thing about a “trial payment plan”, is that they delay a foreclosure sale…which gives you time to get your legal ducks in a row and plan your attack…

    I paid ONE trial payment and then told my servicer “Why the heck would I keep paying money to you when you can’t even prove to me that the “trust” you say my “loan” is in even exists? Where is proof of conveyance to the “trust”??? Deautsche Bank doesn’t OWN ANY LOANS!!!
    He has no answer…
    My credit report says “payment plan” on it…no sale date for my house…I’m fighting these bastards with everything I’ve got in me—’cause the “government” isn’t doing ANYTHING to help us!!!
    But they better do something soon, or this country is going to have rioting in the streets…but, that’s probably what they want…this country isn’t too different from the Middle East situation at this point…corrupt governments, disparity between rich and poor…hmmm…

  10. I raised all my issues in my Small Claims Court case inspired by the BofA customer cited in this story. I thought BofA would move the case into higher court but…our story…
    Being Offensive is hard after the foreclosure suit is filed. My wife and I would have gotten an attorney. Except I couldn’t afford $6,500 up front to pay a qualified New York City attorney to BEGIN the case.
    So, when we received our FIRST THREAT, “acceleration of the loan” I filed a Small Claims suit for $20.
    My wife and I had applied for a home modification, which of course, this led to a foreclosure action beginning some 10 months later. We didn’t know this was “the usual” when we applied, but after 9 months and 250 calls, we had become well informed.
    Even our little Small Claims SUIT got their attention. BofA started to respond! THEY called US!!! They stopped the Foreclosure actions. They fixed our credit rating that THEY had trashed when they reported us “late” on our payments.
    Understand that we didn’t “WIN” the case. BUT, eventually we got a cash settlement, indemnification of the deed of trust and original note (because we were pretty sure that none of the big banks could find either). We discovered that BofA didn’t want to go INTO ANY COURT. In a nutshell, I told them we would move for Quiet Title or they could settle.
    They settled. Why? I believe they don’t want to be in a position to explain themselves in an offensive court action of any kind and settling is their fallback position when the get into an action.
    BofA could have moved the case out of Small Claims in a heartbeat and at that point I would be forced to find an attorney to handle the arguments in the higher court. I warned them that they could move the case but, I would pursue the same arguments as I had shown them. Over a four month period, during which they repeatedly “continued” the case while negotiating with us mostly in good faith…for a change! We settled and dismissed the case in Small Claims.
    But TIMING is everything. You don’t want to be on the defensive without a real attorney who can do well in the courtroom…like our Hero Neal.
    Before I actually filed I talked with an assistant Attorney General. I put Small Claims “out on the table” and I paused. I waited for him to say something. He didn’t say anything to discourage me. I GOT the message.
    And, by the way, during the grueling 4 months of hammering out a settlement (after filing the Small Claims Suit) and getting all the “poison pills” out of their documents (i.e., refusing to sign the first modification), BofA’s management “higher ups” called the State Attorney General of New York’s office in Albany to whine about how mean, bad and unfair we were being to them!!! At the time, when an Assistant Attorney General called to ask my wife about their call to them, it gave us quite a lift to receive SUCH RELIABLE CONFIRMATION that we WERE being tough enough to make BofA’s key management people squeal!

  11. This is what happened to us and many of my friends and customers. I paid for five months, and was never told I was on a trial plan. I was told we were approved and to continue to pay until the paperwork came for the final. The only information about a trial payment was on the coupon page that came. It claimed after making three trial mod on time I would qualify for the final modification loan, then after the fifth payment came I receive a letter mid month telling me I was disqualified, and in foreclosure status, and had to come up with over twentyfive thousand or be foreclosed on. When I called to ask how they could do this and betray me? I was told due to the O’bama changes I was now unapproved. I find there is no such thing as so many other claims they have made. All made up and part of a huge heist and ponzie scheme to undermine Americans.

  12. Lets get a class action lawsuit agains WElls Fargo. Thier Hamp faliure speaks volumes about how much they love this country and the people that borrowed from them. If the President of the U.S. sees thier failure too, and he has, then the time is ripe to expose this Wells Fargo sham. We need to sue the pants off these goats.
    just how long can you lie to sooo many people and get away with it?

  13. Then you have the guy in Missouri who was jerked around as described here, so the day before the “foreclosure” he takes a bulldozer and levels the place. Or the folks who just go rent a cement mixer, remove the two bolts that hold down the toilets, and pour liquid cement down the pipes until it is plugged all the way to the septic tank (have fun ripping that one out, mortgage servicer!). Or the guy who takes a chain saw up into the attic, saws 1/2 way through all the rafters, then does the same to all the roof cross beams, then down into the cellar and cuts into the floor joists. The servicer has to jack up each individual cut beam, remove it, and replace it – the labor cost is much more than the house is worth. Don’t be surprised to see the war get taken to the doors of the fraudsters.

  14. One thing good about BOA, when they know they were wrong, they settle up right away. That’s why I still do business with them.
    Back in 2008, I discovered that they made a mistake in a mortgage payoff I did
    in 2003. They overcharged me about $3000. I sent them a 30 day letter which they
    did not answer. I then sued them in Small Claims and they defaulted. I got my
    judgment and presented it to them. They paid it off right away, no problems. In
    the whole process, they acted like gentlemen and ladies, not like some other
    banks I have dealt with.
    Their main problem now is all these fraudulent Countrywide loans they are stuck with, which isn’t really their fault. Hank Paulson forced them to buy Countrywide, now they are stuck with it. I hope they continue to do the right thing,
    even when it hurts. They will survive. For me to say something nice about a bank is rare, but the truth is the truth!

  15. if there is an attorney out their. There are sooooo many people getting the same treatment with wellsfargo lost papers, delays etc. there must be some way to file a class action suit against these thugs. I am currently going through the lost paper phase myself. HAMP if i wasn’t clear. If you need me to help with a class action lawsuit against WELLS FARGO contact me at Time for the jaugernaut to feel some fear.

  16. Dano, this is how they do it. They will jag you around and then schedule a sheriff’s sale while they’re telling you a modification is under consideration. There is no consideration. The only consideration is how much money they can extract from you to keep you in a deficit position. They drew our third payment on the 4th and posted the sheriffs sale inn the paper on the 6th. I called and MF’d this babe in Office of the president Servicing and a week later they had a bunch of unilateral agreements with notarizations on pages separate from my signature. I signed and sent them back un notarized. They never sent back the copies they said they would provide. made 4 payments, then I started with them again. Case is filed, will probably lose (according to the attorney I am speaking with) and they take the house. Even our state AG (Wisconsin) is sitting on their hands. Very frustrating. I think the best thing we can do is stay in the house as long as you can, and save your dough. Very few attorneys willing to give this a real push.

  17. i think the bigger issue is the banks cant legally modify something they have no interest in. in my case, the servicer modified our loan, and come to find out the servicer slipped language into the mod that pretty much stated they are now our lender and holder of our note. the entire time they told us they were acting on behalf of our lender, who they now call our “investor”. unbeknownst to us our real lender went belly up 3 years earlier and never legally conveyed anything to anyone. after we did the mod, the servicer claimed to be the holder of our mortgage and note, then assigned it to a securitized trust which closed almost 5 years earlier. we got scammed by the servicer, and we are in a civil suit over it. they make me sick. on a side note i find it interesting that when i ask my servicer who my lender is they tell me i have no lender, i have an investor. odd isnt it?

  18. Your right Dano…the longer the borrower is deliquent, the more fees the servicer gets to collect. its simple math. But if your going to file chapter 7 like I am when the smoke clears and I am left holding the bag. Then. Wells Fargo has wasted their time and I will be glad for it. I hate being vendictive. It hurts physically.

  19. This is my first try for hamp and all that i read is true.. The lost faxes, suddenly needing documents that werent need before even though we where told I had everything. At least 3 times this Gomez woman lied and said I had all the documents in that were needed. 3 times the lie. And not by accident, this Gomez lives in a time zone 3 hours behind mine and Gomez only works 4 days a week. What that 3 hour lag does is work in Wells Fargos favor. All transactions are delayed by an extra day, business here where i can do document work are closed when she starts work. Of all things she works 2nd shift. From 2 pm. That’s 5 pm my time. and she works Tuesday to Friday. Wells Fargo has set it all up against me from the beginning and it is no accident. I am supposeding waiting now for approval or disapproval. I bet by the time she finally calls back she will have drug here feet long enough i have to do it all over again. Oh, and speaking with someone with a heavy mexican accindent doesn’t make this any easier. I work with it however. I keep on her every night. Calling asking questions. She has stopped answereing my phone calls for the moment even though they are quite civil. My guess is she is afraid to..If you have any idea how i can defeat the jaguarnaut Wells Fargo please contact me at I lost my job to china, i can prove it, then had a massive heart attack, 4 way bypass fixed all that, had to do on dissability, My payment plan with Wells Fargo is 11 percent for 40 years on the house. Surely to god there is room to bring that into a payment i can afford. Just dropping the percent from 11 to 6 would make it so i could stay at home. I know there are people worse off than I .

  20. why would the lender tell them they dont qualify? the longer the borrower is deliquent, the more fees the servicer gets to collect. its simple math.

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