Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
For seven months, at least, BOA's foreclosure mill has been trying to foreclose on me.     I've hit them with complaints to the Comptroller of the Currency, the Federal Reserve, the Attorney General of my State.   And although in foreclosure docs, BOA constantly masquerades as the note holder and the creditor to whom the debt is due; they are not.    BOA sent a letter saying some FNMA sub trust is the creditor.   I filed suit against them in Federal Court for wire fraud, mail fraud and wrongful foreclosure..  I have not yet served them with notice of the Fed lawsuit.

But today, I received a letter from their foreclosure mill saying the foreclosure has been cancelled.

By the way, three months ago in response to a qualified written request, the foreclosure mill The law firm of Hutchens, Senter & Britton in N.C. sent a copy of the promissory note to me with a mysterious allonge not stamped on the note itself, but attached as a separate paper.   The allonge is from HSBC to Countrywide, not dated... not notorized.      This is an exhibit I attached with the Fed lawsuit I filed.      However, one week ago the foreclosure mill now sends me the same allonge but magically, two more endorsements from a defunct organization Countrywide to Countrywide to Countrywide.     These people are so nailed, it isn't funny.     
Quote 0 0
Bill
 
Quote:
I filed suit against them in Federal Court for wire fraud, mail fraud and wrongful foreclosure..  I have not yet served them with notice of the Fed lawsuit.



I think you are going down a bad road with this one.  There is no private cause of action with wire fraud and mail fraud.  I'm also not sure how you can sue for wrongful foreclosure when you had your foreclosure canceled.  IF you fail to properly plead a cause of action your complaint will be dismissed and you will be required to pay SUBSTANTIAL attorney fees.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

SUSAN M. DESIMONE, )

)

Plaintiff, )

vs. ) No.1:09-cv-01421-WTL-MJD

)

QUICKEN LOANS, INC. et al., )

)

Defendants. )

Entry Discussing Motion to Dismiss of

Fannie Mae, Countrywide Home Loans Servicing, L.P.,

and BAC Home Loans Servicing, L.P.

Background

Susan Desimone (“Desimone”) initially filed this action in Decatur County Superior Court. The action was removed to this court on November 16, 2009. When the court granted the moving defendants’ motion for more definite statement, Desimone was directed to file a supplement to her complaint (“Supplemental Complaint”), which she filed on April 5, 2010.

Desimone brought this action against, among others, Fannie Mae, Countrywide Home Loans Servicing, L.P., and BAC Home Loans Servicing. These defendants seek dismissal of the claims asserted against them pursuant to Rules 12(b)(6) and 9(b).

 

Because Desimone’s allegations fail to state a claim against these defendants and fail to allege a fraud claim with sufficient particularity, the motion to dismiss [33] must be granted.

Legal Standard

The Supreme Court has stated that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In addition, although the requirements of notice pleading are minimal, "a plaintiff can plead himself out of court by alleging facts which show that he has no claim." Jackson v.  arion County, 66 F.3d 151, 153 (7th Cir. 1995). A plaintiff “pleads himself out of court when it would be necessary to contradict the complaint in order to prevail on the merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008)(citing Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006)).

1 In the “Background” section of the motion to dismiss, the defendants assert the following: “At closing, Countrywide Bank, F.S.B.’s lien was paid off. Quicken assigned the March 5, 2008 loan to Countrywide Home Loans Servicing, L.P. (“Countrywide”) n/k/a B.A.C. Home Loans Servicing, L.P. (“Bank of America”).” Defendants attribute these allegations to paragraph 46 of the Supplemental Complaint, however, paragraph 46 does not  contain those allegations.

The motion to dismiss also asserts that “Bank of America subsequently assigned the loan to Fannie May but remained the servicer for the loan following the transfer to Fannie Mae.” This allegation is not made in either the complaint or Supplemental Complaint.

2The court notes that the corporate disclosure statement filed by Countrywide Home Loans Servicing, L.P., asserts that it, improperly named as “Countrywide Mortgage,” is now known as BAC Home Loans Servicing, L.P., and that Bank of America Corporation is the parent company of BAC Home Loans Servicing, L.P. [Docket 12].

Allegations

On October 10, 2007, Desimone executed a promissory note and mortgage that granted Quicken Loans, Inc. (“Quicken”) a mortgage lien on real estate located at 413 N. Franklin Street in Greensburg, Indiana (the “Property”). [Complaint ¶ 1, 3, 6, 10]. The October 10, 2007, loan was subsequently assigned by Quicken to Countrywide Bank, F.S.B. (“Countrywide”) [Supplemental Complaint ¶ 46]. On March 5, 2008, Desimone refinanced the mortgage, again granting Quicken a mortgage lien on the Property. [Complaint at ¶16; Supplemental Complaint ¶ 48].1 The wiring instructions at closing of the refinanced loan indicated that the pay off funds were to be sent to Bank of America. [Supplemental Complaint at ¶ 48]. In her Supplemental Complaint, Desimone alleges that neither Countrywide nor Bank of America notified Desimone of the assignment of the first loan. [Supplemental Complaint, ¶ 48, ¶ 51].

She alleges that in June of 2009 she first realized that Bank of America also owned the refinanced loan.2 Id. at ¶ 52. The Supplemental Complaint also alleges that Fannie Mae ignored the bad portfolio and allowed this suspicious loan to go through their underwriting process. [Supplemental Complaint ¶ 41]. The Supplemental Complaint alleges that “Fannie Mae/lender” granted waivers, deferrals and over-rides to Quicken on a loan that had no income verification, no bank account documents or verifications and used “comp” homes 27 and 47 miles away. Id. at ¶ 44. It further alleges that Fannie Mae was not alarmed that the appraisal of the 140 year old Property came in as perfect. Id. at ¶ 40. Fannie May allegedly committed bank fraud by selling this fraudulently documented loan to Countrywide. Id. at ¶41.

The Supplemental Complaint further alleges that there was a scam at closing when a “second home rider” appeared, a rider which Desimone alleges meant that she could not live in the Property without being in violation of the terms of the note. Id. at ¶ 36.

 

Discussion

The claims asserted against Fannie Mae, Countrywide, and Bank of America are bank fraud, mail fraud, wire fraud, internet fraud, common law fraud, and RICO. These defendants argue that each of the claims should be dismissed for failure to state a claim upon which relief can be granted and/or for failure to allege fraud with specificity. The court will discuss each claim in turn.

Bank Fraud, Mail Fraud, Wire Fraud and Internet Fraud

As explained in the defendants' motion, there is no private cause of action for bank fraud under 18 U.S.C. §1344 or for mail fraud under 18 U.S.C. §1341. See Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408-09 (8th Cir. 1999) (no private right of action for mail and wire fraud); Federal Sav. and Loan Ins. Corp v. Reeves, 816 F.2d 130, 138 (4th Cir. 1987) (criminal code provisions dealing with fraud and misrepresentation provided no basis for civil cause of action where there was no affirmative indication of Congressional intent to furnish civil remedy); Griffin v. City of Milwaukee, No. 10-C-243, 2010 WL 4723420 at *7 (E.D.Wis. Nov. 15, 2010) (no private cause of action for mail, phone, and wire fraud); Park Nat'l Bank of Chicago v. Michael Oil Co., 702 F.Supp 703, 704 (N.D.Ill. 1989) (no private remedy under § 1344 for bank fraud). Although not addressed in the defendants’ motion, any claim for wire fraud under 18 U.S.C. §1343 or for internet fraud is also dismissed for the same reason. Id. Desimone does not have standing to assert causes of action based on federal criminal codes. Accordingly, these claims are dismissed for failure to state a claim upon which relief can be granted.

Common Law Fraud

Rule 9(b) provides that to allege a fraud claim, “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). “A complaint alleging fraud must provide the who, what, when, where, and how.” Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007) (internal quotation omitted).

The elements of a claim for fraudulent misrepresentation are that: 1) the defendants made false statements of past or existing material facts; 2) the defendants made such statements knowing them to be false or recklessly without knowledge as to their truth or falsity; 3) the defendants made the statements to induce the plaintiff to act upon them; 4) the plaintiff justifiably relied and acted upon the statements; and 5) the plaintiff suffered injury. Hizer v. Holt, 937 N.E.2d 1 (Ind. Ct. App. 2010).

Taking Desimone’s allegations as true, she has not identified any false material statements made by these defendants upon which Desimone relied to her detriment. Nor is there any allegation that any such statements were made to induce Desimone to take some action. The complaint and Supplemental Complaint fail to allege a fraud claim with sufficient particularity against these defendants.

Although Desimone sufficiently identified the parties who allegedly failed to give notice of the assignment of the loan, and when they failed to do so, there is no allegation 3Desimone asserted in her response to the motion to dismiss that the moving defendants have refused to provide responses to discovery requests and that the claims against them should not be dismissed before she has had adequate time to complete discovery. The basis of the motion to dismiss, however, is that even taking all of Desimone’s allegations as true, the claims cannot proceed as a matter of law. Because the complaint/Supplemental Complaint fails to state a claim upon which relief can be granted against these defendants, discovery is not warranted. that suggests that the assignment was “false” or procured by fraud. Moreover, there is no allegation that Desimone suffered any injury as a result of the failure to receive notice of the assignment of the mortgage or as a result of the assignment itself. In addition, the second home rider is not alleged to have contained any false statements.

For these reasons, the common law fraud claims asserted against these defendants are dismissed pursuant to Rule 9(b) for lack of specificity and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Racketeer Influenced and Corrupt Organizations Act (“RICO”) “Congress passed RICO in an effort to combat organized, long-term criminal activity.” Jennings v. Auto Meter Products, Inc., 495 F.3d 466, 472 (7th Cir. 2007). To establish a private civil action for RICO violations, a plaintiff must show four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Id. (internal quotation omitted). “In order to curb widespread attempts to turn routine commercial disputes into civil RICO actions, courts carefully scrutinize the pattern requirement to forestall RICO’s use against isolated or sporadic criminal activity, and to prevent RICO from becoming a surrogate for garden-variety fraud actions properly brought under state law.” Id. at 472-72 (internal quotations omitted). Desimone does not allege that the moving defendants participated in any long-term pattern of criminal activity. Rather, the allegations all center around a single purchase of real estate. Accordingly, any RICO claim against these defendants is dismissed for failure to state a claim upon which relief can be granted.3

 

Conclusion

For the above reasons, the motion to dismiss is granted [33] and the claims against defendants Fannie May, Countrywide and Bank of America are dismissed. This does not resolve all claims against all defendants. No final partial judgment shall issue at this time.

Quote 0 0
Floridapathy
A temporary victory perhaps, but a victory nonetheless!

I wonder, would now be the justification needed to seek quiet title? I don't see how you would appear to be seeking any unjust enrichment in doing so in light of them dropping the foreclosure. I'm just speculating, but maybe they cancelled because you happen to be in a district where they've recently lost a similar case. LOL

Keep up the good fight, and good luck to you.
Quote 0 0
Texas
If the wire and mail fraud is that of a RICO charge, there is a Private Right of Action under RICO

Racketeer Influenced and Corrupt Organizations Act, RICO is codified as Chapter 96 of Title 18 of the United States Code, 18 U.S.C. § 1961–1968.
Quote 0 0
Bill

Texas wrote:
If the wire and mail fraud is that of a RICO charge, there is a Private Right of Action under RICO

Racketeer Influenced and Corrupt Organizations Act, RICO is codified as Chapter 96 of Title 18 of the United States Code, 18 U.S.C. § 1961–1968.

The Court addressed that in their decision I posted.  The problem is that in the complaint at bar Desimone claimed RICO violations in regards to the purchase of HER property. 

All the pleadings are available in PACER if someone wants to read them. 

Dianne did not allege that there was a violation of the RICO act in her post. 

I just wanted to post this as a concern.  You don't just get to file lawsuits in federal court and then just say "oops, never mind" or that you made a "mistake".  You will be responsible for the legal fees of the opposing party and they will try to bill for every possible cost.   
Quote 0 0
George Burns
I wish good luck to nearly everyone who tries a RICO civil action in a case such as this. I doubt that any will be able prove an "enterprise" or to meet the conditions of relationship specified in the law:

"There is also a provision for private parties to sue. A "person damaged in his business or property" can sue one or more "racketeers". The plaintiff must prove the existence of an "enterprise". The defendant(s) are not the enterprise; in other words, the defendant(s) and the enterprise are not one and the same. There must be one of four specified relationships between the defendant(s) and the enterprise: either the defendant(s) invested the proceeds of the pattern of racketeering activity into the enterprise; or the defendant(s) acquired or maintained an interest in, or control over, the enterprise through the pattern of racketeering activity; or the defendant(s) conducted or participated in the affairs of the enterprise "through" the pattern of racketeering activity; or the defendant(s) conspired to do one of the above. In essence, the enterprise is the victim of the racketeers. A civil RICO action, like many lawsuits based on federal law, can be filed in state or federal court.[5]"
Quote 0 0
Texas
George Burns stated;"I doubt that any will be able prove an "enterprise" or to meet the conditions of relationship specified in the law:"

Not hard to prove at all.
Quote 0 0
Actually I filed my suit about two weeks ago, but have not yet served them with a copy.     I'm wondering if they found out about it, and decided to cancel the foreclosure.

I guess I need to withdraw the suit, since no longer an illegal foreclosure pending.
Quote 0 0

I wonder if I should amend my complaint, before I serve it; to include the RICO violations...... especially now they have sent another altered Promissory Note and Allonge.

Quote 0 0
I am not a lawyer, so this is not legal advice.  With that said, if you have filed your complaint you must serve it on the Defendant(s) as it was filed.  You can't change it then serve it.  if you want to add a RICO count you'll need to file an amended complaint and then serve it.

I strongly suggest you get a copy of the Rules for whatever jurisdiction you are filed in and read them over and over again.  There are rules for everything, even the construction and form for an amended complaint. Your opponent can win a MSJ on a technicality so fast you wouldn't know what hit you.

Quote 0 0
TheEquitableOne
It isn't my intention to be the bearer of bad news, but this is unavoidable.

Service rules are clear. Very clear. All parties to the action MUST be served with exact duplicates. And served timely.

If Dianne is already dropping the ball and violating rules this early and this obvious in her suit she is likely going to have her a** handed to her. She needs to either do some serious catching up, and that right soon, or consult with, and obtain, competent counsel.

Quote 0 0
Federal Rule 4(m):

(m) Time Limit for Service.

If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).



Quote 0 0
Anonymous
Be sure your loan is cancelled, not just the foreclosure. 
Quote 0 0
mn

Monday  19 December 2011

Congrats to you, Dianne!

For what it is worth, re your new motion, when I
filed a challenge to confirmation of sale, the
attorney firm withdrew from the case before I
could have the judge deal with my Notice and
Demand, the same day.


Her response to me was because the attys
withdrew, she cannot hear my Notice and
Demand, [a different way of presenting a motion].
This is in Illinois.  My pleading was damaging to
the attorneys' and the case, so it may have been
the judge's way of keeping the information out.

Let me add that two of my previous Notice and
Demands were "lost," and the judge never received
them, so she said.  In the first instance, when I
came to drop off a courtesy copy in her court room,
she was the one who directed me where to deliver
it.  In the next two circumstances, I personally
handed each one to her law clerk who assured me
the judge would receive them, yet at trial, she
claimed she never got them so would not deal with
them, and then the attorneys withdrew.

This is the kind of activity that goes on all the
time by judges, in support of the foreclosing plaintiffs.

I would go to the judge's chamber and speak to
the law clerk to see if your motion will be heard,
[not if the case were canceled], and/or do you
need to withdraw it? 

So what if the csae is refiled.  You have a much
better shot at responding to the initial complaint
and dmeanding proof of everything.  Do consider
quiet title.

Cheers to you!

Quote 0 0
Write a reply...