BOA LOSES BID TO DISMISS CASE FOR FRAUD AND BREACH OF DUTY OF GOOD FAITH

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EDITOR’S COMMENT: Inch by inch the judicial system is getting closer to unraveling the truth about mortgages, securitization, and foreclosures. The process is extremely painful for those whose homes have been or are sliding toward foreclosure (10.6 million more expected soon). On one hand we can say that is unacceptable because it is.

On the other hand, we must remember that virtually everything the Banks did was counter-intuitive, and that breaking through what appears to be “common sense” takes a while to digest. Why would anyone “loan” money that they knew would probably not be repaid? Why would anyone sell securities that they knew would fail and why would they make sure those securities failed? Why would the Banks be unconcerned about whether they were repaid, and unconcerned about whether they lose some foreclosure cases? How could losing a foreclosure case to a borrower not be a loss to the Bank?

There are answers to these questions that can be found in abundance on this Blog, other Blogs and many case decisions now, but it is difficult for even the victims to fathom how they were hoodwinked into thinking they owed a debt that they didn’t owe, to a creditor that didn’t exist.

See THIS CARTOON SAYS IT ALL

Think about it. If you were sitting in the Judges chair, wouldn’t you be skeptical about these claims by borrowers? Wouldn’t you take it slow?

as reported in STOPFORECLOSUREFRAUD.COM

Bank of America Loses Foreclosure Class Action Motion to Dismiss in New Jersey – BEALS v. BOA

Bank of America Loses Foreclosure Class Action Motion to Dismiss in New Jersey – BEALS v. BOA

NEWARK, NJ, November 7, 2011 – Today Judge Katherine S. Hayden of the United States District Court for the District of New Jersey denied a motion by Bank of America, N.A. to dismiss the proposed class action Beals v. Bank of America, N.A. This action, was filed by Lawrence Friscia of the New Jersey law firm of Friscia & Associates, a boutique firm concentrating on foreclosure defense, and makes numerous allegations against Bank of America in connection with allegedly fraudulent and procedurally defective foreclosure actions brought by Bank of America against homeowners in New Jersey.

For inquiries related to this matter contact Lawrence Friscia. Mr. Friscia can be reached at (973) 500-8024. Please visit www.friscialaw.com for additional information.

OPINION Excerpt:

VI. Conclusion
For the foregoing reasons, this Court will not abstain from this case. Defendants‘ motion to dismiss is granted as to all claims for negligent processing of a loan modification, as to all claims under the Fair Debt Collection Practices Act, and as to Grullon‘s claims for breach of contract and breach of the duty of good faith and fair dealing. The motion is denied as to the Beals plaintiffs‘ breach of contract claim, the Beals plaintiffs‘ claim for a breach of the duty of good faith and fair dealing, all claims for fraud and negligent misrepresentation, and all claims under the New Jersey Consumer Fraud Act.

20 Responses

  1. Enraged, on November 8, 2011 at 9:55 pm said:

    @cubed

    Congratulations! I was sued by a JDB last year. I answered and counterclaimed for violations of UCC and fdcpa and I threw in a Rico for good measure. Pleadings went on back and forth for a year. JDB filed a motion for judgment on the pleadings. The judge rejected it. I filed a motion for summary judgment on the grounds that they had violated state collection laws (they never provided the “consideration” paid for the purchase of the “alleged” debt. Actually, they produced 3 times the same blanket contract with the purchase price whited out). The judge has been sitting on my motion it for over six months. I think he really doesn’t know what to do with it. I’ll wait. Nothing to lose: they can’t come after anything.

    Mr. Enraged,
    Why don’t you file a motion to dismiss with prejudice, due to violations…
    ”this Court has the responsibility to assure itself that the foreclosure plaintiffs have standing and that subject matter jurisdiction requirements are met at the time the complaint is filed. Even without the concerns raised by the documents the plaintiffs have filed, there is reason to question the existence of standing and the jurisdictional amount”. Over 30 cases are covered by the BAR at:
    http://www.abanet.org/rpte/publications/ereport/2008/3/Ohioforeclosures.pdf

  2. […] BOA LOSES BID TO DISMISS CASE FOR FRAUD AND BREACH OF DUTY OF GOOD FAITH […]

  3. @Gary,

    Yes, the class action may proceed, although not on all counts. Understand that it is an extremely important ruling since, up until now, class actions against banks and/or servicers have pretty much been thrown out right off the bat. This ruling is going to open the door to more of the kind, everywhere.

    Keep in mind that people have been waiting for the “president of change” to address the issue. He did very little, listened to bad advice and abandoned hundreds of thousands people to their plight. The past 3 years have seen the emergence of defense attorneys but… not in every state. Class actions are necessary in place where too few attorneys understand foreclosure defenses.

  4. In Re-reading it appears…..correct me if I’m wrong, the following applies to the Defendants (BOA) Motion:

    “The motion is denied as to the Beals plaintiffs‘ breach of contract claim, the Beals plaintiffs‘ claim for a breach of the duty of good faith and fair dealing, all claims for fraud and negligent misrepresentation, and all claims under the New Jersey Consumer Fraud Act.”

    In all sorts, it appears the Plaintiff(s) in Beal, lost, but only on certain pleadings, yet at the same time prevailed respective to fraud etc.

  5. BOA…..”LOSES BID TO DISMISS”?????

    Who in the world is pretending to be the EDITOR here on LIVIINGLIES regarding this story? Did Neil fall asleep at the wheel on this one or has some alternate individual proclaiming to have knowledge been appointed by proxy to have a venue here to post who does NOT understand the difference between SUSTAIN and OVERRULE…..

    SUSTAIN…..Means the Court AGREES!

    OVERRULE…..Means the Court DISAGREES!

    So by the conclusion below in whoes favor DID THE COURT RULE? For petes sake, the author of this post went so far as high-lighting in BOLD said favor to the ruling. BOA did not LOSE, they WON and their MOTION TO DISMISS was GRANTED!

    “VI Conclusion”.

    “For the foregoing reasons, this Court will not abstain from this case. Defendants‘ motion to dismiss is granted as to all claims for negligent processing of a loan modification, as to all claims under the Fair Debt Collection Practices Act, and as to Grullon‘s claims for breach of contract and breach of the duty of good faith and fair dealing. The motion is denied as to the Beals plaintiffs‘ breach of contract claim, the Beals plaintiffs‘ claim for a breach of the duty of good faith and fair dealing, all claims for fraud and negligent misrepresentation, and all claims under the New Jersey Consumer Fraud Act.”

    THE KEYWORD(S) ARE DISMISS and GRANTED as in SUSTAIN!

    Albeit there is some “good” information in the Courts Conclusion, however the “title to this post is beyond misleading” considering the proposition for a positive outcome beneficial to the Complainant(s).

    Considering the Conclusion, “what did BOA Lose?????

  6. @cubed

    Congratulations! I was sued by a JDB last year. I answered and counterclaimed for violations of UCC and fdcpa and I threw in a Rico for good measure. Pleadings went on back and forth for a year. JDB filed a motion for judgment on the pleadings. The judge rejected it. I filed a motion for summary judgment on the grounds that they had violated state collection laws (they never provided the “consideration” paid for the purchase of the “alleged” debt. Actually, they produced 3 times the same blanket contract with the purchase price whited out). The judge has been sitting on my motion it for over six months. I think he really doesn’t know what to do with it. I’ll wait. Nothing to lose: they can’t come after anything.

  7. and believe,

    when Lehman went down in 2008,,,,,,,,,you think they went down because they were a bad apple in it all………..but believe me they all got together and figured it out,,,,,,,,,and lehman agreed to go down, being the bad apple,,,,,,,,,,,but those guys at lehman are well off, they had nothing to lose, and probably got new jobs in wall street somewhere, but they are millionaires already so they didn’t care,

    the rich get richer……………

  8. @ cubed….ever heard of the Credit River case? A guy successfully argued, to a degree, the argument that you’re talking about. Although they’ll never give in to that way of thinking no matter what, as it would mean their demise, the best way to deal with them is through the destruction of the central banks anyway. They are behind every problem we’re facing.

    If we can get rid of the central banks, there won’t be any more TBTF banks, it’ll spell the end of foreclosures, teen acne, herpes, DUI’s, Justin Bieber and a whole lot more.

    Go to Wikipedia and look up Credit River case. It’s informative.

  9. It is that simple step of “getting a check, depositing it, and withdrawing cash”,,,,,,,,,,,,,that is the system……….but behind it all is just book keeping entry,,,,,,,,,but it appears that you are borrowing others people money at a bank. Just that simple step is hidden but in plain sight.

    It is the hardest thing on earth to communicate but yet it happens everyday without people realizing what is happening.

    But the bottom line is this……..when you borrow money from a bank, or credit card,,,,,,,,,you are in fact not borrowing on a one for one basis or other people’s money,,,,,,,so the banks never loose. never, they only lose potential profits, that is all. And profits are called interest in actuality. Banks are never out money, never. Why did they give record bonus’s these last few years?

    Do not ever feel sorry because a bank lost money, they never lost money, they lost BONUS’s.

  10. look, when you get a loan from a bank, you do not get cash. You get a check. The check you get you must deposit in your bank account or if you got the loan from the same bank that you bank at, why they give you a check to deposit into your bank account. Then, and only then can you withdraw the check amount and get cash. You see that is the system, the Federal Reserve System of Banks.

    http://en.wikipedia.org/wiki/Credit_money

  11. Illinois rep gone wild Defends banksters and yells at his own constituents

    http://www.huffingtonpost.com/2011/11/08/joe-walsh-screams-at-cons_n_1083014.html

    NEVER AGAIN

  12. and editor from above-

    you state—-“Why would anyone “loan” money”

    First of all money from a bank is not loaned. They give CREDIT. Big difference and thus the confusion. Banks take in an IOU, a promise to pay, enter it as an asset and a liability, at the same time, double entry book keeping. Me and you cannot do this.

    Everybody still thinks they lend “money” or other people’s money. No they do not lend money, they give you credit. If they lent other people’s money, then why are reserves so low? Riddle me that?

  13. me wife got sued for defaulted credit card debt, $23,000.00 by JDB.

    I filed an answer last week.

    Today I look up the case on-line and it says “Status: Vacate-Vacated”

  14. Editors comment from above————this has been going on since 1913. Only takes 100 years for people to realize they have been hoodwinked.

    http://www.amazon.com/Hoodwinked-Economic-Reveals-Financial-Imploded/dp/0307589927

    “On the other hand, we must remember that virtually everything the Banks did was counter-intuitive, and that breaking through what appears to be “common sense” takes a while to digest. Why would anyone “loan” money that they knew would probably not be repaid? Why would anyone sell securities that they knew would fail and why would they make sure those securities failed? Why would the Banks be unconcerned about whether they were repaid, and unconcerned about whether they lose some foreclosure cases? How could losing a foreclosure case to a borrower not be a loss to the Bank?”

  15. Well, let’s face it: we allowed the banks to concoct their scheme and we did… nothing, for years. Ignorance, I will concede but as late as 6 months ago, still fewer than 8% of the homeowners being kicked out defended themselves, and that after 60 minutes had spent an hour telling us everything about the fraud committed and more and more TV stations were reporting on it. I would have expected 95% lawsuits overnight, or even around 50%. Nope. People still left their houses even though they knew a hell of a lot more than a year ago.

    It took 15 years for that scheme to come apart. We ought to give another 15 years to the fixing of what was caused. I honestly doubt things will get as bad as what Tom Cox stated. Too many people aware.

    Getting a bit of soul back tonight.

  16. Outrageous!! Palm Beach County Court Hosts Free Seminar – For Foreclosure Mills !!!!!!!!!!!

    2011-11-07 13:43:57-05

    Via Foreclosure Hamlet- Received Today This is a notice for a free seminar, paid for by my tax dollars, for foreclosure mill staff. Where’s my free seminar on how to defend myself!!!!!!!!!!!!!! I urge everyone to email Melissa Sotillo msotillo@pbcgov.org [FORECLOSURE HAMLET] Scribd iPaper(71936194, ‘key-nzfs4mtlec1siuogdwm’, 600, 600); © 2010-11 FORECLOSURE FRAUD | by DinSFLA. […]

    http://stopforeclosurefraud.com/2011/11/07/outrageous-palm-beach-county-court-hosts-free-seminar-for-foreclosure-mills/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+%7C+by+DinSFLA%29

  17. found it, thanks

  18. That’s it, no more information???

  19. Comptroller of the Currency
    Administrator of National Banks
    1301 McKinney Street,
    Suite 3450.
    Houston, Texas
    77010-9050
    Fax: 713-336-4301

    October 14, 2011

    Re: Case No. 01751312
    WELLS FARGO BANK, NA

    BARRY S FAGAN- Complainant/Plaintiff
    Los Angeles Superior Court Case SC112044

    SUPPLEMENTAL EVIDENCE OF BANK DOCUMENT FRAUD

    A.VIOLATIONS OF THE OCC CONSENT ORDER DATED APRIL 2011

    Dear Mr. Chandler:

    I am in receipt of your letter dated September 6, 2011 and wish to further supplement my complaint (01751312) with additional evidence of document fraud.

    Attached hereto and made a part hereof are Exhibits A through C, all of which has been filed with the Superior Court of Los Angeles CASE NUMBER SC112044 and as a result has now become a public record.

    Barry Fagan v Wells Fargo Bank Re Supplemental Objection to Request for Judicial Notice With 3 Original Deeds of Trust With Different Page Fours. SEE ATTACHED!

    http://www.scribd.com/doc/68896185/Barry-Fagan-v-Wells-Fargo-Bank-Re-Supplemental-Objection-to-Request-for-Judicial-Notice-With-3-Original-Deeds-of-Trust-With-Different-Page-Fours

    Re: Link to Lis Pendens with Evidence of Deed of Trust alteration and fraud by Wells Fargo Bank.

    http://www.scribd.com/doc/71080695/Barry-Fagan-v-Wells-Fargo-Bank-LIS-PENDENS-With-Evidence-of-Deed-of-Trust-Alteration-and-Fraud

    And evidence of multiple authors of Wells Fargo Bank employee Rhonda Bernard Thomas

    http://www.scribd.com/doc/71082634/Barry-Fagan-v-Wells-Fargo-Declaration-of-Dr-Laurie-Hoeltzel-Re-Multiple-Authors-of-Rhonda-Bernard-Thomas-Signatures

    Contained within those exhibits, are 3 different versions of an ORIGINAL Deed of Trust, along with multiple fraudulent loan applications.

    Exhibit A is the Deed of Trust as filed with the Los Angeles County Registrar Recorders Office, while Exhibit B and Exhibit C were provided by Wells Fargo Bank as alleged original documents. The magnified version of page 4 all clearly show variations of the same hand written number and is an indication that the original Exhibit A as recorded in the Los Angeles County Recorders Office has been altered since it was originally recorded.

    Page 4 has been altered and it does not take a document expert to see that the magnified version of these pages show completely different versions of the hand written number 4.

    Kindly review the additional exhibits to see that Wells Fargo Bank’s entire loan file is wrought with errors and inconsistencies and quite frankly fraud!

    The Law Offices of KUTAK ROCK LLP in Irvine California currently has possession of this altered document and I ask that your agency issue a subpoena for this document so that you can prove that it is indeed different from the original that was recorded and copied in the Los Angeles County Registrar Office.

    This is blatant fraud and our National banks are acting as if they are above the law and this case gives our law enforcement agencies an opportunity to prove just how much harm these banks are causing our economy.

    Thank you.

    Barry S. Fagan Esq.

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