Plaintiff's (Echeverria vs Bank of America, N.A.) Response in Opposition to Defendant's Motion to Dismiss Sept 2011

1IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ABDIEL ECHEVERRIA and ISABEL

SANTAMARIA

Plaintiffs,

v. Case No. 6:10-cv-01933-JA-DAB

BAC HOME LOANS SERVICING, LP and

BANK OF AMERICA, N.A.,

Defendants,

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S

MOTION TO DISMISS SECOND AMENDED VERIFIED COMPLAINT

COMES NOW Plaintiffs, pro se, and by and through the undersigned

counsel, and respectfully offer the following in response to the Defendants’

Motion to Dismiss, and further state as follows:

I. INTRODUCTION

Defendant’s “Motion to Dismiss Plaintiff’s Second Amended Verified Complaint”

advances numerous arguments, none of which meets the legal standard required to succeed on a

motion to dismiss. The Defendant argues that Plaintiff s filed their Second Amended Verified

Complaint in a purported attempt to remedy the shortcomings identified in Defendant’s initial

Motion to Dismiss. Defendant fails to understand that these pleadings were filed by “pro se”

litigants without counsel. In addition, Defendant’s counsel alleges that the Plaintiffs filed their

Amended Complaints “incomplete” (see footnote of Doc. 33, Defendant’s Motion to Dismiss,

page 2). Defendant fails to state what was “incomplete” or “missing” from the complaints. The

Plaintiffs have submitted via Priority Mail the Amended Complaints in its entirety and have

nothing to omit or hide from the Defendants. Furthermore, Defendants claim that the Plaintiff’s

Second Amended Verified Complaint once again completely failed to state a claim under any

legal theory. The Plaintiffs however, have submitted detailed accounts along with the related

exhibits to substantiate a legal claim.

Pleadings in this case were filed by Plaintiff in “Propria Persona” (Pro Se), wherein

pleadings are to be considered without regard to technicalities. Propria, pleadings are not to be

held to the same high standards of perfection as practicing lawyers. See Haines v. Kerner 92 Sct

594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir

1995) also See In Re: Hall v. Bellmon 935 F.2d 1106 (10th Cir. 1991)."

II. BACKGROUND

Defendant BAC is a wholly owned subsidiary of the well-known banking Institution,

Bank of America. Defendant BAC performs “servicing” of home loans for various parties that

own the right to receive payments on the loan (holders). These holders are often investors,

securitized trusts, or banking institutions that do not have the infrastructure to collect payments

from borrowers or, in their business judgment, have found it preferable to use a “servicer,” such

as Defendant BAC. The exact type of “servicing” that a “servicer” performs is often controlled

by private contract or government regulation, depending on the type of loan. However, servicing

generally includes such functions as collecting payments, communicating with borrowers on the

holder’s behalf, and in some cases, administering a foreclosure.

On February 29, 2008, Plaintiff, Abdiel Echeverria along with his spouse, Plaintiff Isabel

Santamaria, acquired a federally-insured home loan in the amount of $144,079.00 from Taylor,

Bean & Whitaker which included cash from Borrowers (Plaintiffs) of $23,998.24 for the total

purchase price of $167,000.00 for home located on 499 Cellini Ave NE, Palm Bay, Florida

32907. The Mortgage was registered with MERS (Mortgage Electronic Registration System).

In August 2009, Defendant BAC (“Bank of America”) acquired the Plaintiff’s Mortgage

from Taylor, Bean & Whitaker.

III. The Legal Standard for a Motion to Dismiss

There is legal sufficiency to show that Plaintiffs are entitled to relief under their

Complaint. “It is long settled that a complaint should not be dismissed unless it appears beyond

doubt that the plaintiff could prove no set of facts in support of his claim which would entitled

them to relief.” Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed. 2d 80 (1957) also Neitzke v.

Williams, 109 S. Ct. 1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on

a judge's disbelief of a complaint's factual allegations. In applying the Conley standard, the Court

will "accept the truth of the well-pleaded factual allegations of the Complaint." In Puckett v.

Cox, it was held that a pro-se pleading requires less stringent reading than one drafted by a

lawyer (456 F2d 233 (1972 Sixth Circuit USCA).

“The allegations of the claim must be taken as true and must be read to include any

theory on which the plaintiff may recover.” See Linder v. Portocarrero, 963 F.2d 332, 334-36

(11th Cir. 1992) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)). The issue for

consideration on a ‘motion to dismiss’ is not whether the plaintiff will ultimately prevail, but

“whether the claimant is entitled to offer evidence to support the claims.” Little v. City of North

Miami, 805 F.2d 962, 965 (11th Cir. 1986). “Motions to dismiss for failure to state a claim are

granted sparingly and with caution in order to make certain that plaintiff is not improperly

denied a right to have his claim adjudicated . . .” Agora, Inc. v. Axxess, Inc., 90 F.Supp. 2d 697,

699 (D.Md. 2000) (quoting 5A Charles A. Wright & Arthur R. Miller, FED. PRACTICE &

PROCEDURE, Civil 2d § 1349 at 192-93 (1990)). If a defect can be cured by amendment, a

leave to amend should be freely granted. Forman v. Davis, 371 U.S. 178, 182 (1962); Ferrell

Law, P.A. v. Crescent Miami Center, LLP, 313 Fed. Appx. 182, 186 (11th Cir. 2008); Fed. R.

Civ. P. 15(a)(2).

Judge Corrigan, in the Middle District of Florida, wrote: “Federal Rule of Civil Procedure

8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled

to relief”. Erickson v. Pardus,___ U.S. ___, ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081

(2007). “Specific facts are not necessary; the statement need only give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests”. Id. (quoting Bell Atlantic Corp. v.

Twombly), 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). “While a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . we do not

require heightened fact pleading of specifics, but only enough facts to state a claim to relief that

is plausible on its face”. Id. at 1964, 1974. (Bassler v. George Weston Bakeries Distribution,

Inc., 2008 WL 4724434 *1 (M.D. Fla. October 24, 2008)

In Alphamed Pharmaceuticals Corp., v. Arriva Pharmaceuticals, Inc., 391 F.Supp. 2d 1148

(S.D. Fla. 2005), Judge Altonaga set forth the standard that must be applied to succeed on a

motion to dismiss: “For purposes of a motion to dismiss, the court must accept the allegations of

the complaint as true”. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir.

1999) (en banc). “Moreover, the complaint must be viewed in the light most favorable to the

Plaintiff”. St. Joseph’s Hosp., Inc. v. Hosp. Corp. of America, 795 F. 2d 948, 953 (11th Cir.

1986). “To warrant a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it

must be “clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Blackstone v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994)

(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.

1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of

a complaint's factual allegations. In applying the Conley standard, it was stated that the Court

will "accept the truth of the well-pleaded factual allegations of the Complaint."

Applying these standards, the Defendant’s Motion to Dismiss should be denied.

1. Plaintiff’s Complaint States a Cause of Action for RESPA

In Defendant’s Motion to Dismiss Second Amended Verified Complaint, it asserts that

Plaintiffs must do more than merely state legal conclusions and they are required to allege some

specific factual basis for those conclusions or face dismissal of their claims. Plaintiffs provided

letters (QWR’s) that expressed their concerns which included their names, loan number and

other information required under RESPA. Plaintiff also acquired the assistance of an Attorney to

assist them with many issues including QWR’s that were sent to the Defendant. Plaintiff’s

Attorney forewarned the Defendant BAC of its practices as demonstrated by the “Demand

Letter” sent to BAC’s Craig Jernigan in the Office of the President which was submitted as

evidence with the Second Amended Verified Complaint. Plaintiff also rightfully alleges that the

Defendant did not advise them within the required time frame that their mortgage was transferred

to the Defendant in violation of 12 U.S.C. § 2605(c). (2nd Amend. Ver. Comp. ¶ 21, 47, 78).

Plaintiffs also submitted a QWR to the Defendant on July 10, 2010 (2nd Amend. Ver.

Comp. ¶ 58) in regards to their Promissory Note. Defendant did not provide the required

document as requested by the Plaintiffs until more than 90 days later in violation of 12 U.S.C. §

2605(e). The Defendants intentionally provided a document that looked like a statement with

loan information at first, knowing very well that the Plaintiffs had requested their Promissory

Note. These exhibits were filed with the Second Amended Verified Complaint and the

alternatives.

Defendants further allege that Plaintiffs made no “Qualified Written Requests”.

Defendant states that Plaintiffs allege that their hardship affidavit, written submissions of

financial information and written applications for a loan modification are QWR’s. Plaintiffs

submitted letters that request that the Defendant correct their account issues and those issues

were never resolved or explained within 60 days (¶ 78 and ¶ 79, 2nd Amended Verified Comp.):

“Plaintiffs’ letters dated March 11, 2010; March 19, 2010; April 19, 2010; June 15, 2010; two

(2) on July 19, 2010 (written letter to BAC & email sent to Mr. Moynihan); July 20, 2010;

August 10, 2010 (email); August 13, 2010 (email) and August 16, 2010 (Demand Letter by

Attorney Angela Sigman) were all written request for an investigation of misrepresentations

made by Defendant BAC with respect to their mortgage account was a “qualified written

request” within the meaning of RESPA.”(¶78, 2nd Amend. Ver. Comp.) and “Defendant BAC

failed to respond in a proper and timely way to Plaintiff’s “qualified written requests” for

information about their mortgage accounts by failing to provide Plaintiffs with the information

requested or explain why the information sought was unavailable, in violation of 12 U.S.C. §

2605(e).” (¶ 79, 2nd Amended Verified Complaint).

In addition, Plaintiffs recently acquired their case records from Enrique, Smith & Trent

P.L. On April 30, 2010, the Plaintiff’s Attorney at the time (Philip Healy Esq.) submitted a 12

page fax to Defendant BAC’s (“Bank of America”) Office of the President regarding an

Authorization Form and Qualified Written Requests. This request was also faxed to Ezila

Lutcher that same day which also requested that the Defendant send numerous documents

pertaining to the origination of the subject loan and a loan history including fees assessed.

Defendant finally replies to these requests with a letter dated May 14, 2010 and states: “Please

note that all other requests are declined as they seek documentation that goes beyond that which

is available through a Qualified Written Request made under 12 U.S.C. ¶2605(B)”.

The Defendant refused to submit all documents that were requested. For unknown reasons,

according to the Plaintiff’s attorney’s case records recently acquired, the Defendant did not

submit the “Note” and other documents that the Plaintiff’s attorney had initially requested.

Plaintiff’s attorney was eventually provided with “some” of the requested documents by Taylor,

Bean & Whitaker, except for the Promissory Note.

Defendant BAC, by its own admission has stated that it indeed received Qualified

Written Requests as per letters sent to the Plaintiff’s Attorney dated May 10, 2010 & May 14,

2010. These letters (exhibits) were submitted with the Second Amended Verified Complaint that

was filed as a separate docket.

Defendant’s Motion to Dismiss for No Cause of Action under RESPA for no Qualified Written

Requests should be denied.

2. Plaintiff’s Complaint States a Cause of Action for Breach of Contract of

Promissory Note & Mortgage

A breach of contract amounts to a broken promise to do or not do an act. Defendant

claims that Plaintiffs fail to state a cause of action for breach of contract. However, Housing and

Urban Development (HUD) foreclosure rights extend the promise of fair dealing, and timely

notification to homeowners. In addition, “This Security Instrument does not authorize

acceleration or foreclosure if not permitted by regulation of the Secretary [of Housing and

Urban Development].” The servicer is required to provide proper servicing under its contractual

obligations.

Mortgagee Letter 2009-42, dated October 19, 2009 says as follows: “Under FHA’s

regulations 24 CFR §203.502, “The mortgagee shall remain fully responsible to the Secretary

for proper servicing, and the actions of the servicer shall be considered to be the actions of the

mortgagee. The servicer shall also be fully responsible to the Secretary for its actions as a

servicer.” In turn, the holding mortgagee is responsible for the actions of the sub-servicer, and

the sub-servicer is responsible to the Secretary as an approved mortgagee for its actions in

servicing the FHA mortgages. “

Even though the Plaintiffs have not been foreclosed on yet, they have received

acceleration notices or “threats” in the mail which can also be considered as an act of extortion

by demanding erroneous amounts and indicating the dates of when those foreclosure

proceedings would commence if such erroneous full amount is not paid (2nd Amend. Ver. Comp.

¶ 67). Not once did the Defendant try to comply with FHA regulations or try to initiate a “face to

face” meeting with the Plaintiffs as stipulated on the Promissory Note C.F.R. §203.604.5.

Defendants’ intentions were clearly malicious and caused unnecessary harm to the

Plaintiffs. Plaintiffs must allege: “(1) the existence of a contract, (2) a breach of the contract, and

(3) damages resulting from the breach.” Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d

DCA 2006). If a mortgage breach occurs due to “unlawful” activity on the part of the lender, a

borrower has the “right” to take legal action.

The Defendant’s Motion to Dismiss for No Cause of Action for Breach of Contract of Note &

Mortgage should be denied.

3. Plaintiffs State a Claim for Intentional Misrepresentation

Defendants state that Plaintiffs assembled a number of different allegations, none of

which are plead with the requisite particularity under the Federal Rules of Civil Procedure.

Rule 9 of The Federal Rules of Procedure, for example, requires that allegations of fraud

or mistake be stated with particularity. Furthermore, even though the Federal Rules allow fairly

general and non-specific pleadings, more particular allegations are allowed.

Even though the Defendant “alleges” that the Plaintiffs were aware that the amounts

owed were false, Plaintiffs relied on the Defendants as their loan servicer that these corrections

would be made. The erroneous information on the Plaintiffs account occurred in October 2009

and the Plaintiff called BAC’s Customer Service Department and was at times told that the issue

would be corrected and at times they were provided with incorrect information. Nevertheless, the

Plaintiff then began to send written letters and emails requesting that these issues be corrected

months after the issue initially started. Plaintiff also called the HOPE Helpline in the hopes that

she can get help with a loan modification with BAC. The Plaintiff was told in June 2010 by

Misha Smith in the Office of the President that the investigation of her account would be

concluded the following week and the Plaintiff would have an answer. This never happened but

the Plaintiff did rely on this information. This call was recorded by the HOPE Helpline.

The Defendant BAC also states that the Plaintiffs have identified no representations made

regarding the loan modification and that they failed to allege “who” made the representations,

when they were made, the content, the details or the manner of the representations. Most of the

letters sent to the Plaintiffs by the Defendant BAC were never “signed” nor had someone’s name

on it so that they could not be held accountable for such misrepresentations. In the Second

Amended Verified Complaint, Plaintiffs have indeed stated some dates and names of those

involved and who they spoke to and also the misrepresentations made by the Defendant which

included letters which spanned many months and phone calls. Defendants provided documents

which contained false information or information that lead the Plaintiffs to believe that the loan

modification was being processed. Plaintiffs continued to make copies at times at Office Depot

and purchased costly printer ink, paper and postage multiple times just to send the documents

required relying on the Defendants representations for a loan modification. Plaintiffs also

continued to spend money to make necessary repairs and improvements to the home relying that

the Defendant would be fair and fulfill their obligations as a lender/servicer and correct the

issues. In addition, Plaintiffs initially had faith that they would receive assistance and tried faxing

over documents with their personal information and letters many times but were sometimes

provided with incorrect or non-working fax numbers.

The Defendants further allege that the Plaintiffs themselves stated that it was the loan

modification refusal not their reliance on promises to grant a loan modification that caused them

harm. The Plaintiff received letters and was told over the phone that they pre-qualified, that

documents were received and that the loan modification was being reviewed and relied upon this

information. The erroneous information that was eventually provided to the Plaintiffs (September

24, 2010 Denial Letter) of why their loan medication was denied (financial documents were not

received) was false and a mere excuse that the Defendant repeatedly uses against its customers

(2nd Amend. Ver. Comp.¶ 65). Consequently, the Defendant will then inform the OCC on

November 24, 2010, that the Plaintiffs are being considered for a “permanent” loan modification

and are in forbearance. Plaintiffs were never notified or even heard that they ever had a “trial”

modification or any trial payments that would then grant them to be considered for a

“permanent” one. These statements by the Defendant were maliciously false. Instead, the

Plaintiffs were already sent an official notice of denial dated September 24, 2010 via Fed Ex as

stated above.

The Defendant quotes the Plaintiff in footnotes of page 10 of their “Motion to Dismiss”

(Doc. 33) of Plaintiff’s Exhibit AX, July 19, 2010 email to Brian Moynihan in which the

Plaintiff stated: “I was never told that I was denied or approved”. The Defendant BAC fails to

acknowledge that Mrs. Santamaria was accurate in her statement and only confirms that she truly

did not know the status at that time. It was in early October 2010 that she received the loan

modification “denial” dated September 24, 2010, months after this email to Mr. Moynihan was

sent.

Plaintiffs continued to make mortgage payments that they could no longer afford in order

to receive assistance. The Plaintiffs were told to continue making payments during the loan

modification process and they complied with the Defendant’s instructions because they relied on

these statements. Furthermore, Plaintiff did not take notes of everyone she spoke to at first

because she relied on that information and never thought of a negative outcome. Nevertheless,

the Plaintiff (Isabel Santamaria) has kept a Timeline for many months which will be notarized

and submitted to the court and Defendant’s counsel during the discovery process. This document

will possibly give a more accurate explanation of the events and when they took place. Also, no

one at Bank of America ever takes responsibility for these actions. In October 2009, Plaintiff

(Isabel Santamaria) was told that she could not qualify for a loan modification because they were

not behind on their mortgage. Plaintiff relied on this request as true and this in turn caused the

Plaintiffs to not make a payment in November 2009 and therefore the loan was officially in

default for one month even though default is not required to qualify for a loan modification (¶ 24

of 2nd Amend. Comp).

Plaintiff’s Attorney at the time, Angela Sigman was also provided with false information

by the Defendant on many occasions. Furthermore, the Defendant refers to ¶ 25 & ¶28 of the

Second Amended Verified Complaint stating that the Plaintiffs were aware that the amounts

owed were false and continued to receive these erroneous statements. This allegation by the

Defendant in no way demonstrates that the Plaintiffs knew with “certainty” that these issues

would never be resolved. In addition, the Defendants act like this erroneous information on the

Plaintiff’s account is to be accepted and ignored. These are not innocent mistakes.

Defendant BAC advised the Plaintiffs, OCC, and Congressman Bill Posey that the

Plaintiff’s account was corrected and payments were applied in the correct months as a result of

the investigation on the Plaintiff’s account and everyone involved “relied” on this information.

This information about the account corrections provided to all parties was indeed false. More

recently, the Plaintiff received in the mail a notice dated 08/13/2011 from the Defendant

regarding their payment history. Every error on the account remained the same and was never

corrected even after their many admissions that the account was corrected more than a year ago

(2nd Amend. Ver. Comp. ¶ 68 (7)).

The Plaintiff would not have continued to call the Defendant’s Customer Service

Department and get upset with such frequency if she knew that these issues would not be

corrected (¶ 24 of 2nd Amend. Comp.). At first she thought that it was just “bad” customer

service and not a scheme to defraud them in such an egregious manner. The Plaintiffs never

imagined that this fraudulent behavior would continue and that they would end up in litigation

against the Defendant. The Plaintiffs in good faith gave the Defendant numerous opportunities to

make the appropriate corrections but the Defendant refused to comply.

Defendant BAC submitted a two page “questionnaire-type letter” addressed to the OCC

dated November 24, 2010 in response to the investigation being conducted regarding the

Plaintiffs allegations. This document was never submitted to the Plaintiffs by BAC but was

forwarded to the Plaintiff by Congressman Posey. It was never the Defendants intentions that the

Plaintiffs would see this questionnaire. The Defendant BAC clearly misrepresents statements

regarding the Plaintiffs account and loan modification and provides contradicting statements.

The Plaintiffs fraud claim establishes 1) false statements as a material fact; 2) that the

maker of the statement knew or should have known it was false; 3) that the representation was

made with the intention to induce another to act on it; and 4) that there was consequent injury by

the party acting in reliance on the representation. The written and oral statements that were made

against the Plaintiffs were submitted as evidence, and speak for itself in this regard.

The Defendant’s misrepresentations caused the Plaintiffs severe emotional distress and

health issues which resulted from the Defendants malicious acts. Plaintiff (Isabel Santamaria)

has been affected the most and Plaintiffs now have additional “long term” medical expenses due

to these issues. Plaintiff (Isabel Santamaria) has been seeing a Psychologist for many months and

will provide her expert witness report as part of the discovery process. Plaintiff has also missed

work so many times because her depression and stress was so bad that she could not control her

emotions long enough to perform her job over the phone. The Plaintiff is currently not working

since May 2011 due to health and emotional issues and her employers are aware of this. The

Plaintiff (Isabel Santamaria), as stated in ¶ 43 of the Second Amended Verified Complaint, is not

able to get out of bed at times and fulfill household duties, work, and other activities that she

would normally perform with her disabled children.

Recently, David Brash from Columbus, Georgia was awarded over 21 million dollars.

According to court documents, Brash sent letters to the mortgage company that went

unanswered, violating federal laws. In November 2009, PHH Mortgage sent him more late

payment notices, this time reporting Brash to three credit rating companies and seriously

damaging his credit score, according to court documents. Brash, based in Fort Benning, Ga.,

rightfully sued the mortgage company for breaching the federal “Real Estate Settlement and

Procedures Act”. He also sued under Georgia state loan servicing and breach of contract laws.

The case is David Brash v. PHH Mortgage Corp., doing business as Coldwell Banker; Case No:

4:2009cv00146; Georgia Middle District Court. It is well established that the Plaintiffs have

clearly endured this type of abuse and much more by the Defendant BAC and are entitled to

relief.

The Plaintiffs have provided enough information to identify economic injury and will

supply much more during the course of this litigation. Therefore, Defendant’s Motion to Dismiss

for No Cognizable Claim for Intentional Misrepresentation should be denied.

4. FDCPA is Applicable

Defendant states that Plaintiff failed to establish that BAC is a debt collector as defined

by the FDCPA stating that they could not have been acting as a “debt collector” with respect to

the Plaintiffs because it was collecting its own debt which was not in default at the time the debt

was obtained. This statement contradicts the fact that the Defendant has been harassing the

Plaintiffs by trying to collect the August 2009 payment which was sent to Taylor, Bean &

Whitaker. The Defendant became the new servicer/mortgage company shortly after payment was

submitted by the Plaintiffs. If the Defendant is not the “debt collector” for this debt than that

would mean that the Plaintiffs have been harassed without motive for that debt. If the Defendant

is indeed the “debt collector” because the loan was in default when they acquired it, than that

would confirm that Defendant is to be considered a “debt collector”.

On many of Bank of America’s Notices to their customers, it clearly states in bold letters:

“Bank of America, N.A. is required by law to inform you that this communication is from a debt

collector attempting to collect a debt, and any information obtained will be used for that

purpose”. Plaintiffs have these notices in their possession.

Under the FDCPA, debt collectors may not harass, oppress, or abuse anyone or any third

parties they contact. For example, they may not repeatedly use the phone to annoy someone.

Debt collectors may not lie when they are trying to collect a debt. For example, they may not

misrepresent the amount someone owes. The Defendant continued to harass the Plaintiffs by

calling repeatedly during the hours that the Plaintiff (Isabel Santamaria) was working from home

and was not able to answer those calls. The Defendant continued to repeatedly harass the

Plaintiffs with phone calls even after they were advised that the Plaintiffs had an attorney in

March 2010 and for many months after the Plaintiffs attorney made contact with the Defendant.

These telephone records will eventually be supplied as evidence.

In letter dated May 14, 2010 sent by the Defendant and addressed to Plaintiff’s attorney,

Bank of America states: “Please note that a credit block was placed while the issues in your

letter were addressed. However, as of the date of this letter, the block has been removed. Further

as a member of the credit granting community, Bank of America, like most creditors, relies on

the accuracy and validity of the information obtained from the various reporting agencies.

Therefore, we will not remove the negative credit reporting from our customer’s credit file.”

Even though Bank of America provided false information to the credit reporting agencies

and HUD by repeatedly stating that the Plaintiffs were four (4) months behind on their mortgage

at that time, they had no intention of correcting the Plaintiff’s credit as per this letter and they

never did. As a result, it would make it impossible for the Plaintiffs to ever purchase a home

again. The Defendant continued to threaten and pursue an erroneous amount from the Plaintiffs.

The Defendant’s Motion to Dismiss for FDCPA as Inapplicable should be denied.

5. Plaintiffs State a Claim Under RICO

The Defendant constitutes an illegal enterprise in acts or threat of acts in violation of

Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq. The following are particular

violations: 18 USC 1341: Mail fraud; 18 USC 1343: Wire fraud; 18 USC 1503: Obstruction of

justice; and 18 USC 1001: Fraud. Other counts were included. All RICO cases are tried in

Federal Courts and the Prosecutor or Plaintiff only needs to prove a “preponderance of the

evidence”(the lowest level of proof) which typically means more likely than not. Rather than the

usual criminal standard of “beyond a reasonable doubt”, U.S. attorneys prosecuting a RICO case

only need to prove to the judge and jury that the defendant “appears” to have engaged in those

criminal activities as defined in RICO. Effectively, the standard is satisfied if there is greater

than fifty (50) percent chance that the proposition is true.

As stated in the complaint, The U.S. Supreme Court has instructed federal courts to

follow the continuity-plus-relationship test in order to determine whether the facts of a specific

case give rise to an established pattern. Predicate acts are related if they "have the same or

similar purposes, results, participants, victims, or methods of commission, or otherwise are

interrelated by distinguishing characteristics and are not isolated events." (H.J. Inc. v.

Northwestern Bell Telephone Co.) Continuity is both a closed and open ended concept, referring

to either a closed period of conduct, or to past conduct that by its nature projects into the future

with a threat of repetition. Defendant’s illegal and deceptive business practices are nationally

known.

At all relevant times, Defendant BAC (“Bank of America”) and its various contractors

were “persons” within the meaning of RICO, 18 U.S.C. §§1961(3) and 1962 (c).

RICO was enacted by section 901(a) of the Organized Crime Control Act of 1970 (Pub. L.

91-452, 84 Stat. 922, enacted October 15, 1970). RICO is codified as Chapter 96 of Title 18 of

the United States Code, 18 U.S.C. § 1961–1968. While its intended use was to prosecute the

Mafia as well as others who were actively engaged in organized crime, its application has been

more widespread. RICO also permits a private individual harmed by the actions of such an

enterprise to file a civil suit; if successful, the individual can collect treble damages. A civil

RICO action, like many lawsuits based on federal law, can be filed in state or federal court.

On a Motion to Dismiss on a RICO claim, allegations of the claim must be accepted as

“true” (see e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993)). “All reasonable inferences from a

complaint are to be drawn in favour of the Plaintiff” (Walker v. City of N.Y., 974 F. 2d. 293, 298

(2d Cir. 1992), cert. denied, 113 S. Ct. 1387, 122 L. Ed. 762 (1993)) “On a motion to dismiss we

must accept all allegation in the complaint as true….and draw all reasonable inferences in favour

of the Plaintiff.” (Volmar Distribs. v. New York Post Co., 899 F. Supp. 1187, 1189, (S.D.N.Y.

1995). As a result of these acts, Plaintiffs have directly been injured emotionally by the

Defendant’s conduct ( 2nd Amend. Ver. Comp. ¶ 43). Plaintiffs have satisfied a federal RICO

violation under § 1962 (c) by establishing the four elements of proof: (1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity by establishing at least two acts of

distinct but related predicate acts of racketeering activity occurring within a prescribed time

period (Williams, 465 F. 3d at 1283-84).

Appropriately, the most common predicate acts are violations of 18 USC § 1341 (relating

to mail fraud) and "fraud in the sale of securities" generally under Section 10(b) and Rule 10(b)5

of the Securities and Exchange Act of 1934. Mail fraud provides an especially appealing basis

for the assertion of a RICO claim, since its proof requirements are more easily met than the

requirements for common law fraud. Section 18 USC Section 1341 provides that "whoever,

having devised . . . any scheme or artifice to defraud. . . for the purpose of executing such

scheme or artifice . . . places in any post office or authorized depository for mail matter, any

matter or thing whatever to be sent or delivered by the Postal Service . . . shall be fined . . . or

imprisoned. . .." Unlike common law fraud, it is not necessary that the mailing itself contain a

misrepresentation. United States v. McNeive, 536 F.2d 1245, 1249 (8th Cir. 1976). To establish

mail fraud, the plaintiff must show the existence of a plan or scheme to defraud, that it was

foreseeable that the defendant's scheme would cause the mails to be used, and that the use of the

mails was for the purpose of carrying out the fraudulent scheme. United States v. Leyden, 842

F.2d 1026, 1028 (8th Cir. 1988) and American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1292

(11th Cir. 2010). Defendant BAC (“Bank of America”) consistently schemes to defraud

homeowners by mailing misrepresentations and utilizes this service to carry out “loan servicing

fraud”. For example, Plaintiffs were constantly provided letters via U.S. Mail by the Defendant

telling them that the loan modification process would take no longer than “45 days”, that

documents were received, that documents were missing and that documents were never received

even though Plaintiffs can prove otherwise. The Plaintiffs relied on the Defendant BAC’s

misrepresentations and provided all the financial and personal documents needed repeatedly

hoping that the Defendant would act in a just manner.

In regards to loan servicing fraud, these scams are designed and deliberately

operated. These situations are not errors, mistakes or situations where a servicer’s managers or

employees failed to do their job. Their systems are well-designed and state-of-the-art in terms of

analytical technology that helps them choose and process their victims. The Defendant BAC,

participates in such activity and has used the Postal Service to carry out such fraudulent activities

and the Plaintiffs have fallen victim to such crimes on a regular basis.

 In addition, the Plaintiffs are not the only ones that have fallen victim to this “mail

fraud” scheme. Many other BAC mortgage customers have expressed their frustration with the

fraudulent information that they have been bombarded with by the Defendant. The Plaintiffs will

provide the court with Notarized Affidavits by other BAC (“Bank of America”) victims that will

include their negative experience with the Defendant along with their loan account information

and many victims will be available to testify in court. This will also authenticate: RICO

violations under § 1962 (c) by establishing the four elements of proof: (1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity by establishing at least two acts of

distinct but related predicate acts of racketeering activity occurring within a prescribed time

period.

The Defendant BAC has also participated in “wire fraud”. The crime of wire fraud is

codified at 18 U.S.C. §   1343 , and reads as follows:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for

obtaining money or property by means of false or fraudulent pretenses, representations, or

promises, transmits or causes to be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any writings, signs, signals, pictures, or

sounds for the purpose of executing such scheme or artifice, shall be fined under this title or

imprisoned not more than 20 years, or both. If the violation affects a financial institution, such

person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both”.

On April 3, 2011, CBS' 60 MINUTES aired a segment titled “The Next Housing Shock”

showing massive fraud by banks and mortgage-backed trusts in foreclosures. The segment

focused on one particular document mill, Docx, LLC, owned by Lender Processing Services,

Inc., a company that works for over 51 banks. One former employee confessed to forging 4,000

documents each day. Which bank/trustees most often used the “Docx” forged documents in

foreclosures and mortgage assignments? Deutsche Bank National Trust Company, U.S. Bank,

Wells Fargo, Citibank and Bank of America were the top five users of these forged documents,

but other banks were also involved. These forged documents were also “repeatedly” transmitted

and filed electronically in courts throughout the country by the Defendant and their attorneys to

illegally foreclose on homes. This constitutes in “wire fraud” which is a federal crime.

The Plaintiffs or their previous attorneys were never able to view a copy of their

“Assignment of Mortgage” after the loan transfer from Taylor, Bean & Whitaker to BAC (“Bank

of America”) because it was not recorded for almost two years. Recently, on July 20, 2011,

Defendant filed a MERS Assignment of Mortgage in the Brevard Clerk of Courts on the

Plaintiffs property after almost two years of the transfer. Apparently, the Defendant filed this

mortgage assignment after the Plaintiffs mentioned this suspicious detail in their previous

Response. Furthermore, this was a “robo-signed” document filed by the Defendant which also

substantiates the Plaintiffs allegation of “wire fraud”.

In regards to obstruction of justice, the Defendant hindered the investigation initiated by

the Office of the Comptroller of the Currency and HUD. The Defendant “intentionally” supplied

erroneous information regarding the Plaintiff’s loan modification and their mortgage account.

Due to these false and inconsistent statements, the OCC, which is a regulatory agency, initially

dropped the Plaintiff’s investigation against the Defendant BAC believing that the information

provided was accurate.

In H.J. Inc., the Supreme Court ruled that the factors of "continuity" plus "relationship"

combine to form a pattern. A series of criminal acts satisfy the "continuity" requirement if they

last for a substantial period of time (generally a year or more) or if they threaten to continue

indefinitely. In addition to being sufficiently continuous, the criminal acts must also pass the

"relationship" test, i.e., have "the same or similar purposes, results, participants, victims, or

methods of commission, or otherwise [be] interrelated by distinguishing characteristics and are

not isolated events." If the defendant's racketeering activities satisfy the factors of "continuity"

and "relatedness," then the defendant will be found to have engaged in a "pattern of

racketeering."

Courts have applied a multifactor test to determine whether a pattern of racketeering

activity has been pleaded or proved. The factors considered typically include the nature, number,

and variety of predicate acts; the duration or time span involved; the number of victims; the

number of separate transactions involving unlawful conduct; and the presence of distinct injuries.

In Walsh Chiropractic, Ltd. v. StrataCare, Inc., No. 09-1061-MJR (S.D.Ill. Sept. 30, 2010),

District Judge Reagan of the United States District Court for the Southern District of Illinois

denied the defendant’s motion to dismiss and held that the plaintiff had adequately pled that the

“mail fraud” predicates were a part of the enterprise’s regular way of doing business, and it was

reasonable to assume that this regular business conduct may be repeated.

The Defendant BAC further states that the “corporation” cannot be an “enterprise” and

the “person” must be distinct. However, an enterprise may be an illegitimate enterprise, such as a

Mafia family, or a wholly legitimate enterprise, such as a corporation. United States v. Turkette,

452 U.S. 576, 580-81 (1981). Although an enterprise can be a legal entity, such as a partnership,

corporation or association, it can also be an individual or simply a relatively loose-knit group of

people or legal entities. These latter groups are referred to as "association-in-fact" enterprises

under the statute, 18 U.S.C., section 1961(4).

The Defendant BAC states that the Plaintiff failed to identify the economic injury they

attribute to Defendant BAC’s actions. Throughout the pleading, (¶ 13- 74, 2nd Amen. Ver.

Comp.) it is understood that Plaintiffs were abused by the Defendant by manner of threats,

misrepresentations, embezzlement, harassment, and other violations. In regards to “punitive

damages” under RICO, it can be argued that they should not be precluded, relying on Dicta in

Sedima that suggests that RICO’s multiple damage award is not a “punitive” award. However, in

viewing the issues in various contexts, several courts have awarded both treble damages on a

RICO claim and punitive damages as a form of punishment (Ross v. Jackie Fine Arts, Inc., No.

2-85-2425, 1991 U.S. Dist. LEXIS 13535 (D.S.C. September 4, 1991). In addition to “treble”

damages, the court awarded $14.9 million in punitive damages in light of the “reprehensibility”

of the defendant’s scheme. The Defendant BAC, is currently being investigated by all 50 states

for fraudulent activities towards homeowners and some lawsuits have been filed in this respect.

In September 2011, the Department of Labor ordered that an ex-employee at Bank of

America named Eileen Foster be monetarily rewarded after being fired by the Defendant. Ms.

Foster was terminated by the Defendant after her investigation exposed that Countrywide and

Bank of America were guilty of mail fraud, wire fraud, and bank fraud which are all RICO

crimes. http://www.iwatchnews.org/2011/09/14/6467/mortgage-industry-whistleblower-wins-

case-against-bank-america.

The Defendant BAC (“Bank of America”) also conspired and endeavored to violate the

activities prohibited by Fla. Stat. Sec. 772.103(1), (2), and (3).

The Defendant’s Motion to Dismiss for No Cognizable Claim Under RICO should be denied.

6. Conclusion

Defendant BAC claims that Plaintiff’s Second Amended Verified Complaint is completely

devoid of facts establishing the elements of their claim. Although elaborate, the complaints have

been filed in accordance with the local rules to the best of their abilities and limited legal

knowledge, and have provided sufficient facts (exhibits) to substantiate their allegations.

Plaintiffs have complied with the Local Rules for Form of Pleadings, rules 1.05 and 1.06 and

with Fla. R. Civ. P. 1.190.

The Defendant should be held accountable to the same standards as anyone else who has

committed the crime of fraud, forgery, embezzlement, theft, and obstruction of justice just to

mention a few. In addition, the Defendant cannot provide an actual response to the Plaintiffs

allegations and therefore the Plaintiff’s Second Amended Verified Complaint is sufficient to

withstand dismissal and the Plaintiffs have submitted sufficient facts, not opinions of the events

that took place. The Defendant maliciously refused to correct the Plaintiff’s credit therefore

causing harm to the Plaintiffs. Furthermore, the Plaintiffs have substantial evidence to prove

harm by the Defendant by means of medical and psychological records which will be filed

accordingly. The Plaintiffs were harmed by “all” of the Defendants fraudulent actions. The abuse

became too overwhelming and unnecessary. There is also additional evidence that is still being

acquired and some will need to be acquired by subpoenas. In addition, Pro se litigants may be

entitled to Attorney fees and costs under the Civil Rights Attorney's Fee Award Act of 1976, 90

Stat. 2641, as amended 42 USC 1988.

The Plaintiffs would respectfully ask for the opportunity to have their case heard in court.

Accordingly, Plaintiffs respectfully request that Defendant’s Motion to Dismiss be denied.

Dated: September 26, 2011

_______________________________________

Abdiel Echeverria – Pro Se

_______________________________________

Isabel Santamaria – Pro Se

499 Cellini Ave NE

Palm Bay, Florida 32907

[email protected] or [email protected]

(321) 750-6697 or (321) 676-4198

State of Florida )

)

County of Brevard )

ABDIEL ECHEVERRIA and ISABEL SANTAMARIA, being duly sworn, depose and say that

they are the Plaintiffs in the above entitled action, that they have read the foregoing RESPONSE

IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND

AMENDED VERIFIED COMPLAINT and know the contents thereof, and that the same is true

of their own knowledge, except as to matters therein stated to be alleged on information and

belief, and as to those matters they believe them to be true.

____________________________________________

Abdiel Echeverria – Pro Se

_____________________________________________

Isabel Santamaria – Pro Se

Sworn before me this _________ day of ______________________, ________

______________________________________________

Notary Public

1IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 6:10-cv-01933-JA-DAB

CERTIFICATE OF SERVICE

We, do hereby CERTIFY that a true and correct copy of the RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS has been furnished to: Akerman Senterfitt c/o

William P. Gray, Esq, Attorney for Defendant BAC Home Loans Servicing, LP, and Bank of

America N.A. by ( X ) mail ( ) fax ( ) mail and fax ( ) email ( ) hand-delivery on this

________ day of September_, 20 11.

____________________________________

Abdiel Echeverria – Plaintiff

____________________________________

Isabel Santamaria – Plaintiff

499 Cellini Ave NE

Palm Bay, FL 32907

(321) 676-4198 or (321) 750-6697