22 May

From: Charles Cox []
Sent: Friday, May 18, 2012 8:16 AM
To: Charles Cox

May 18th, 2012 | Author: Matthew D. Weidner, Esq.

Hat tip to Nye Lavalle and Jackie Mack!

In my mind, JPMorgan ranks among the very top of the most aggressive and abusive litigators in the whole fraudclosure arena. They surround themselves with monster paid lawyers then attack the whistleblowers and those who dare to challenge with the ferocity of an out of control criminal street gang.

And so I love seeing them get a few shots thrown back their direction.

Understand, the position we are in around this nation is the banks do whatever they want. They engage in whatever abusive and violent and bullying conduct they care to, then they just cloak themselves behind the highest priced lawyers and navigate their way through whatever court system they need to in order to walk away with no consequence.

In this case and so many others, you see them slithering and bashing and beating a homeowner in a federal case. I’ve read pleadings after pleadings and the legal position they assert is,


(and then just as a kicker they throw in)


But one judge dared to keep the scales of justice balanced equally, a quite extraordinary fact, frankly. Read the opinion: (order is attached)

Defendants, JP Morgan Chase & Co., a foreign corporation, JPMorgan Chase

Bank, N.A., individually and as successor to (collectively “Chase”), Washington Mutual

Bank, a dissolved federal bank (“WaMu”), and Federal National Mortgage Corporation, a

federally-chartered corporation (“FNMA”), (collectively, the “Defendants”), pursuant to

Rule 12(b)(6), Federal Rule of Civil Procedure, move to dismiss Plaintiff’s First

Amended Complaint. Defendants seek dismissal on grounds that (1) Plaintiff waived her

claims by failing to assert them in a 2006 mortgage foreclosure case; (2) Plaintiff fails to

state any causes of action in the various counts of the First Amended Complaint inasmuch

as she fails to differentiate among Defendants in her allegations; (3) Count I fails to state

a cause of action because the Florida Deceptive and Unfair Trade Practices Act

(“FDUTPA”), section 501.201, et seq., Florida Statutes, does not apply to Defendants; (4)

Count II fails to state a cause of action because Defendants are not debt collectors as

defined by the Fair Debt Collection Practices Act (“FDCPA”) and initiating a mortgage

foreclosure action does not constitute a debt collection; (5) Plaintiff fails to state a claim

under the Florida Consumer Collection Practices Act (“FCCPA”), section 559.72, Florida

Statutes, in Count II; (6) Plaintiff fails to state a cause of action for civil conspiracy in

Count III; (7) Plaintiff failed to state a cause of action for abuse of legal process in Count

IV; and (8) Count V, alleging violations of the RICO statute,18 U.S.C. § 1962, fails to

state a cause of action.

With respect to the asserted waiver of Plaintiff’s claims for her failure to assert

them in the 2006 foreclosure case, the Court is not convinced, at this stage of the

proceedings, that Plaintiff waived her claims because the complaint includes allegations

based on conduct that occurred after her alleged breach of the mortgage loan agreement.

She asserts that the facts supporting her claims were not brought to light until revelations

of fraud in the mortgage industry began to unfold in the fall of 2010. Additionally, the

Court cannot base a dismissal on matters outside the four corners of the complaint. See

Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). While JPMC claims it is

not liable for any conduct of WaMu that occurred prior to September 25, 2008, the date

on which the Purchase and Assumption Agreement (“PAA”) was executed between

JPMC and WaMu, the PAA has not even been filed with the Court. Furthermore,

Plaintiff asserts that her claims against Defendant JPMC are predicated on its alleged

servicing of the loan, conduct that occurred after September 25, 2008.

Defendants claim exemption from FDUTPA as banking corporations regulated by

a federal agency; however, application of the exemption cannot be determined with

certainty from the four corners of the First Amended Complaint. The Court is not

convinced that the exemption would apply to Defendants who, as Plaintiff alleges, acted

as loan servicers, and the exemption clearly would not apply to non-banks such as

JPMCC and FNMA. Also, although Defendants assert that they are not “debt collectors”

within the meaning of the FDCPA because they were not attempting to collect a debt due

another, there remains a question of fact as to whether 15 U.S.C. § 1692(f) applies to

activities by JPMCC, JPMC, WaMu, and FNMA, as alleged by Plaintiff, to enforce a

security interest via mortgage foreclosure. See 15 U.S.C. § 1692a(6).

Questions of fact preclude dismissal of Plaintiff’s FCCPA claim as well, because

she plainly alleges that Defendants knew they did not have the legal right to collect the

alleged debt and knew that Plaintiff was not in default. See Fla. Stat § 559.72(9).

Likewise, Plaintiff is able to overcome dismissal of her common law claims for civil

conspiracy and abuse of process through her factual allegations that Defendants acted

unlawfully, and in agreement, with the intent to defraud her through the use of sham

documents and fabricated evidence, and that their actions caused her damages. Finally,

her civil RICO claims under 18 U.S.C. § 1962 adequately allege facts, at least for this

stage of the proceedings, to support each of the statutory elements for the predicate acts

that allegedly divested her of her homestead. Plaintiff is able to avoid the time-bar of her

civil RICO claim inasmuch as she alleges she was prevented from discovering that she

was the victim of fraud by Defendants’ concealment of the alleged fraud.


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