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,
SCREW YOU AMERICAN TAXPAYER, WE OWN THESE LAWS, WE DO WHAT WE WANT
(and then just as a kicker they throw in)
AND WE’RE COMING AFTER THE CONSUMER LAWYERS WHO DARED TO CHALLENGE US
But one judge dared to keep the scales of justice balanced equally, a quite extraordinary fact, frankly. Read the opinion:
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.
