It’s either RICO Act or Control Fraud.

We are entering the Age of Rage.

It is presently most visible in Europe as austerity programs that potentially could shred a half century of social entitlement advances are met with increasingly violent street demonstrations.  It is seen in the US Tea Party rallies with their fury that the very fabric which the US capitalist system is based on is being destroyed and discarded. Unfortunately these demonstrations of rage are focusing on the effects and not the cause. The cause is a systemic plaque of unenforced financial control fraud.

Americans witnessed CEOs arrested during the nightly news coverage of the S&L Crisis of the early 90’s. They were placated as they heard the details of over 1000 indictments of the perpetrators of fraud. In the aftermath of the tech bubble implosion ten years later, injured investors once again witnessed the most senior executives at Enron, WorldCom, Tyco, Qwest and others being led off in handcuffs and disgrace to waiting police cruisers. Retirees with decimated retirement plans felt that some level of restitution had been made when 25 year sentences were meted out to these formerly high-flying felons.

After nearly two years since the greatest financial malfeasants in history and ten years since the last public example of financial crime, the public haven’t seen a single CEO sentenced to hard time for the financial meltdown. They have not had their thirst for revenge quenched by a single high level court case. Instead, the public infuriatingly witnesses politically crafted theater in congressional hearings that go nowhere, read watered down legislation that is replete with even richer lobbyist-authored loopholes and only occasionally see small headlines of quiet settlements with insulting token amends payments. Why? Were there no crimes committed? No laws broken?

The public is forced to accept excuses that we have enforcement agencies not enforcing, regulators not regulating and legislators not equipped to legislate properly in our modern fast moving financial world.  The public is left with the gnawing concern of whether it is incompetence or something much deeper, more troubling, and more sinister.  Confidence and trust in government and our democratically elected politicians continue to worsen from already pathetic levels.

The taxpayer while standing in long unemployment lines, reads in the newspapers of financial institutions that were making mind-numbing profits and paying horrendous executive bonuses suddenly being insolvent and needing taxpayer bailouts. Then as their unemployment benefits near exhaustion, they read of the banks’ profits soaring once again. These are the foundations of the emerging new age of public rage.

We have much more than a crisis of integrity. We have fraud that is so pervasive that it is now unknowingly institutionalized into our business and political culture. The sickening part is that it a like a cancer; if it’s not detected early, it will be too late to fight. We need to fully understand and prosecute the tenets of fraud before it is too late.

FRAUD

Fraud is the act of creating trust then betraying it. Fraud is deceit.

If I was to articulate this definition to the average person,  I believe the vast majority (without formal legal training) would immediately respond that this is exactly how they’d describe the financial crisis!  So why are there no indictments?  Is the fraud of liar’s loans, NINJA (No income, No Job, No Assets) loans, false housing appraisals, false AAA credit ratings and false contingent liability reporting so hard to prove? Not really. It takes an indictment and that’s often a much too political process in America.

Some would argue it was not intentional and therefore can’t be seen as a felony. They‘d say it is more a matter of civil damages. Again, wrong.

CONTROL FRAUD

What emerged from the S&P debacle was the concept of control fraud. At the core of financial control fraud is the notion that a CEO would deliberately use the S&L as a camouflage to make bad loans, thereby gutting the underwriting process while knowing full well that the loans would statistically fail over the long run. By doing this, money is made in the initial stages, exactly in the fashion of a Bernie Madoff Ponzi scheme. Profits are declared and rich bonuses are paid. Stocks soar and rich stock options are executed. Then when the inevitable day arrives as the defaults emerge, the CEO takes the company into bankruptcy with no claw-back provisions, or an even newer and richer approach – the CEO seeks government bailouts to replace the pillaged balance sheet.

Corporate Control Fraud might be viewed as having four tell-tales:

1.     Deliberately making bad loans or investments.

2.     Exceptionally High Growth (because improperly accounted profits are being booked today).

3.     The use of extraordinary leverage to maximize profits while profits are artificially available.

4.     False representation of actuarial appropriate loss reserves.

Sound eerily familiar?

The S&L debacle prompted the Prompt Corrective Action (PCA) Law (US Code: Title 12,1831o). William K Black the author of “ The Best Way to Rob a Bank is to Own: How Corporate Executives and Politicians Looted the S&L Industry, “ argues that this law is presently being broken through the misrepresentation of bank asset positions.  Additionally, because the Prompt Corrective Action Law is not being enforced, the felony of accounting control fraud is being committed.

Control fraud theory was developed in the savings and loan debacle. It explained that the person controlling the S&L (typically the CEO) posed a unique risk because he could use it as a weapon.  The theory synthesized criminology (Wheeler and Rothman 1982), economics (Akerlof 1970), accounting, law, finance, and political science. It explained how a CEO optimized “his” S&L as a weapon to loot creditors and shareholders.

The weapon of choice was accounting fraud. The company is the perpetrator and a victim. Control frauds are optimal looters because the CEO has four unique advantages. He uses his ability to hire and fire to suborn internal and external controls and make them allies. Control frauds consistently get “clean” opinions for financial statements that show record profitability when the company is insolvent and unprofitable. CEOs choose top-tier auditors. Their reputation helps deceive creditors and shareholders.

Only the CEO can optimize the company for fraud. He has it invest in assets that have no clear market value. Professionals evaluate such assets-allowing the CEO to hire ones who will inflate values. Rapid growth (as in a Ponzi scheme) extends the fraud and increases the “take.” S&Ls optimized accounting fraud by loaning to uncreditworthy and criminal borrowers (who promised to pay the highest rates and fees because they did not intend to repay, but the promise sufficed for the auditors to permit booking the profits). The CEO extends the fraud through “sales” of the troubled assets to “straws” that transmute losses into profits. Accounting fraud produced guaranteed record profits-and losses.

CEOs have the unique ability to convert company assets into personal funds through normal corporate mechanisms. Accounting fraud causes stock prices to rise. The CEO sells shares and profits. The successful CEO receives raises, bonuses, perks, and options and gains in status and reputation. Audacious CEOs use political contributions to influence the external environment to aid fraud by fending off the regulators. Charitable contributions aid the firm’s legitimacy and the CEO’s status. S&L CEOs were able to loot the assets of large, rapidly growing organizations for many years. They used accounting fraud to mimic legitimate firms, and the markets did not spot the fraud. The steps that maximized their accounting profits maximized their losses, which dwarfed all other forms of property crimes combined. (1)

I have written extensively about the degree to which the banks 10K and 10Q balance sheets do not represent current fair market value of their assets. When the FDIC continuously takes over banks and declares that asset values are 25- 35% overvalued, there’s no further proof required. The banks, which are sold as part of the regular FDIC  “Friday night bank lottery” continuously see no CEOs indicted for falsely representing FDIC-insured assets. We the taxpayers are then unwittingly presented with the tab.

Secretaries Paulson and Geithner subverted the PCA law by allowing failed banks to engage in massive accounting fraud (which also means they are engaged in securities fraud). Treasury is telling the world that resolving the failed banks will require roughly $2 trillion dollars. That has to mean that the failed banks are insolvent by roughly $2 trillion. The failed banks, however, are reporting that they are not simply solvent, but “well capitalized.” The regulators flout PCA by permitting this massive accounting and securities fraud. (Note that by countenancing this fraud they make it extremely difficult to ever prosecute these elite white-collar frauds.)  (5)

Above, I made the assertion that indictments are too political a process in America. Control Fraud isn’t unique to just CEOs. Heads of sovereign governments and their empowered representatives also fall within this type of fraud. We once again see ourselves moving upwards hierarchically towards people in authority, who are charged with a fiduciary and judiciary responsibility, taking positions that enrich or politically benefit themselves at the expense of the innocent. This is fraud. Though we find ourselves asking, where are they when we most need them, we should be asking, who will bring them to justice?

If you think this is not widespread, how do you rationalize that it was recently reported that Goldman Sachs never had a trading day loss in April yet its clients in eight out of ten cases lost money.  Incompetence? Stupidity? The Financial Times reports “The trading operations of Goldman Sachs and JPMorgan Chase made money every single business day in the first quarter … Goldman’s trading desk recorded a profit of at least $25m(£16.8) on each of the quarter’s 63 working days, making more than $100m a day on 35 occasions, according to a regulatory filing issued on Monday …  JPMorgan also achieved a loss-free quarter in its trading unit – making an average of $118m a day, nearly $5m an hour”. Morgan Stanley reported trading profits on a mere 93% of the first quarter trading days. This defies any sort of logic in a freely trading markets, unless the markets are controlled and the game fixed. These are better odds than owning a casino.

As A frustrated Tyler Durden at Zero Hedge observes: “if you ever wanted to see what a monopoly looks like in chart form:

The firm did not record a loss of even $0.01 on even one day in the last quarter,” Durden says. “The statistic probability of this event is itself statistically undefined. Goldman is now the market – or, in keeping with modern market reality, Goldman is the ‘house,’ it controls the casino, and always wins. Congratulations America: you now have far, far better odds in Las Vegas that you have making money with your E-Trade account.” (7)

The famous Barnum & Bailey carnival barkers used to snidely boast “there’s a sucker born every minute”. The carnival games were notoriously fixed so the ‘sucker’ almost certainly lost. I’m not indicting anyone here (I will leave that to our alarmingly incompetent regulatory and enforcement agencies), but rather I’m only reinforcing why we have entered an age of public rage and why I felt compelled to write the Extend & Pretend series of articles.

GRESHAM’S LAW

As the concept of control fraud emerged from the S&L crisis, an expansion of Gresham’s Law — has begun to be sketched out by Bill Black —

It will no doubt emerge out of this depression.

Gresham’s Law describes how “bad money drives out good.” Expanding on that idea, what Black calls “A Gresham’s Dynamic” operates similarly, when cheaters profit and “the dishonest drive out the honest.”

CLICK FOR VIDEO

Dr. William Black, University of Missouri-Kansas City.
Thursday, Feb. 18th, 2010, 7:30-9:00 PM, at the Council Chamber.
The title of Dr. Black’s talk is: Why Elite Frauds Cause Recurrent, Intensifying Economic, Political and Moral Crises.


RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (RICO) ACT

Under RICO, a person who is a member of an enterprise that has committed any two of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period can be charged with racketeering.   Racketeering activity includes:

In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of “racketeering activity.” 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.

It seems it is the same names I continue to read about in the press. Do these financial institutions settle to avoid the magic ‘2 committed felony’ threshold qualification for a RICO indictment?

On March 29, 1989, financier Michael Milken was indicted on 98 counts of racketeering and fraud relating to an investigation into insider trading and other offenses. Milken was accused of using a wide-ranging network of contacts to manipulate stock and bond prices. It was one of the first occasions that a RICO indictment was brought against an individual with no ties to organized crime. Milken pled guilty to six lesser offenses rather than face spending the rest of his life in prison. On September 7, 1988, Milken’s employer, Drexel Burnham Lambert, was also threatened with a RICO indictment under the legal doctrine that corporations are responsible for their employees’ crimes. Drexel avoided RICO charges by pleading no contest to lesser felonies. While many sources say that Drexel pleaded guilty, in truth the firm only admitted it was “not in a position to dispute the allegations.” If Drexel had been indicted, it would have had to post a performance bond of up to $1 billion to avoid having its assets frozen. This would have taken precedence over all of the firm’s other obligations—including the loans that provided 96 percent of its capital. If the bond ever had to be paid, its shareholders would have been practically wiped out. Since banks will not extend credit to a firm indicted under RICO, an indictment would have likely put Drexel out of business. Is this really what is behind too big to fail prosecution? (6)

You don’t need a fancy high priced Philadelphia lawyer to tell you that “when the glove fits you can’t acquit!”  – A little old fashion common sense is all that is required.

CONCLUSION

The Age of Rage during the French revolution cost people their heads when the guillotine administered public justice daily for the angry masses. Political and bureaucratic heads will also roll in the future if justice is not soon administered. As Marie Antoinette learned too late, it may be much worse than merely the loss of an elected position with all its trappings.

It takes public rage for someone to spend the time to create expressions of frustration like the above graphic represents!

SOURCES:

(1) 08-30-08 The Control Fraud Theory Bizcovering

(2) US Code: Title 12, 1831o. Prompt Corrective Action

(3) April 2009 William K. Black on The Prompt Corrective Action Law Bill Moyers Journal

(4) Accounting Control Fraud Google Scholar

(5) 02-23-09 Why Is Geithner Continuing Paulson’s Policy of Violating the Law? The Huffington Post

(6) RICO – Wikipedia

(7) 05-12-10 Goldman’s Perfect Quarter Eric Fry The Daily Reckoning

C

Gordon T Long

Tipping Points

Mr. Long is a former senior group executive with IBM & Motorola, a principle in a high tech public start-up and founder of a private venture capital fund. He is presently involved in private equity placements internationally along with proprietary trading involving the development & application of Chaos Theory and Mandelbrot Generator algorithms.

Gordon T Long is not a registered advisor and does not give investment advice. His comments are an expression of opinion only and should not be construed in any manner whatsoever as recommendations to buy or sell a stock, option, future, bond, commodity or any other financial instrument at any time. While he believes his statements to be true, they always depend on the reliability of his own credible sources. Of course, he recommends that you consult with a qualified investment advisor, one licensed by appropriate regulatory agencies in your legal jurisdiction, before making any investment decisions, and barring that, you are encouraged to confirm the facts on your own before making important investment commitments.

© Copyright 2010 Gordon T Long. The information herein was obtained from sources which Mr. Long believes reliable, but he does not guarantee its accuracy. None of the information, advertisements, website links, or any opinions expressed constitutes a solicitation of the purchase or sale of any securities or commodities. Please note that Mr. Long may already have invested or may from time to time invest in securities that are recommended or otherwise covered on this website. Mr. Long does not intend to disclose the extent of any current holdings or future transactions with respect to any particular security. You should consider this possibility before investing in any security based upon statements and information contained in any report, post, comment or recommendation you receive from him.

Banks Have Recognized 60% of Expected Loan Charge-Offs: Moody’s

Gee, and here I thought that the Federal Reserve bought $1.4-$2 *trillion* of them! Let alone Lehman and its 50 billion in subprime mortgages that it “hid” (and what about all the other TARP/Federal Reserve member banks??)

BY: CARRIE BAY 6/3/2010 DSNEWS

n its latest quarterly report on credit conditions of the U.S. banking system, Moody’s Investors Service says banks’ asset quality issues are “past the peak” butcharge-offs and non-performers continue to eat away at profitability and sheer fundamentals.

Based on Moody’s market data, banks’ non-performing loans stood at 5.0 percent of total loan assets at March 31, 2010.

Moody’s says U.S. rated banks have already charged off or written-down $436 billion of loans in 2008, 2009, and the first quarter of 2010. That leaves another $307 billion to reach the rating agency’s full estimate of $744 billion of loan charge-offs from 2008 through 2011.

In aggregate, the banks have recognized 60 percent of Moody’s estimated total charge-offs and 65 percent of estimated residential mortgage losses, but only 45 percent of projected commercial real estate losses.

In the first quarter of this year, the banking industry’s collective annualized net charge-offs came to 3.3 percent of loans, versus 3.6 percent of loans in the fourth quarter

of 2009, Moody’s said. Despite two consecutive quarters of improvement in charge-offs, the ratings agency notes that the figures still remain near historic highs, dating back to the Great Depression.

According to Moody’s analysts, the decline in aggregate charge-offs was driven by commercial real estate improvement, which “we believe is likely to reverse in coming quarters,” they said in the report. A similar commercial real estate decline was experienced in the first quarter of 2009 before charge-offs accelerated through the rest of the year.

“The return to ‘normal’ levels of asset quality will be slow and uneven over the next 12 to 18 months,” said Moody’sSVP Craig Emrick.

But Emrick added that “Although remaining losses are sizable, they are beginning to look manageable in relation to bank’s loan loss allowances and tangible common equity.”

U.S. banks’ allowances for loan losses stood at $221 billion as of March 31, 2010, which is equal to 4.1 percent of loans, Moody’s reported. Although this can be used to offset a sizable portion of remaining charge-offs, banks will still require substantial provisions in 2010, the agency said.

Moody’s says its negative outlook for the U.S. banking system is driven by asset quality concerns and effects on profitability and capital. The agency’s ratings outlook is also influenced by the potential for a worse-than-expected macroeconomic environment, Moody’s said.

“More severe macroeconomic developments, the probability of which we place at 10 percent to 20 percent, would significantly strain U.S. bank fundamental credit quality,” Moody’s analysts wrote in their report.

TRYING TO FORECLOSE on HOMEOWNER MORTGAGE with a “BORROWERS PROTECTION PLAN”: JONES v. BANK OF AMERICA, N.A.

JONES v. BANK OF AMERICA, N.A.

Kevin R. Jones, Plaintiff,

v.

Bank of America, N.A., Defendant.

No. CV-09-2129-PHX-JAT.

United States District Court, D. Arizona.

June 1, 2010.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before the Court is Defendant Bank of America’s Partial Motion to Dismiss (Doc. #39). The Court has reviewed the parties’ filings and now rules on the Motion. For the reasons that follow, the Motion is denied as to Counts Three, Five, and Six, and granted as to Counts Two and Four. Count Four is dismissed without prejudice.

I. Background

Plaintiff alleges the following facts in support of his claims. In June and July 2006, Plaintiff Kevin Jones took out two mortgage loans on his residence located in Phoenix, Arizona. (Doc. #22, ¶¶7-8). At the time Plaintiff entered into the loan agreements with Defendant Bank of America, he also enrolled in the optional “Borrowers Protection Plan” (“the Plan”). (Id. at ¶9). The Plan provided that Defendant would cover Plaintiff’s monthly mortgage payments in the event that Plaintiff became disabled or involuntarily unemployed, in exchange for monthly premiums. (Id. at ¶10). On February 2, 2008, Plaintiff was in a car accident which caused him severe permanent injury and disability. (Id. at ¶13). As a result of his disability, Plaintiff was unable to continue working and making his mortgage payments. (Id. at ¶¶14-16). Plaintiff did, however, continue to make his premium payments and the Plan covered Plaintiff’s mortgage payments until “some point in the latter part of 2008 or in 2009.”1 ] (Id. at ¶¶17, 23). Defendant originally scheduled a Trustee sale for Plaintiff’s residence for November 9, 2009. (Id. at 1).

Plaintiff filed his First Amended Complaint on November 16, 2009, alleging breach of contract and tort claims. (Doc. #22). Defendant filed the instant motion on December 14, 2009, seeking to dismiss the tort claims pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. #39).

II. Legal Standard

To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. at 556, n.3 (citing 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE §1202, at 94-95 (3d ed. 2004)).

“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss.” Schneider v. Cal. Dept. Of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). “The focus of any Rule 12(b)(6) dismissal—both in the trial court and on appeal—is the complaint.” Id.

In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader’s obligation to provide the grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Dismissal is appropriate where the complaint lacks either a cognizable legal theory or facts sufficient to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997).

III. Count Two: Negligence

In Plaintiff’s Amended Complaint, Plaintiff alleges that Defendant owed a duty “to ensure that plaintiff’s contractual rights would be protected, and specifically that the Borrowers Protection Plan contractual benefits be honored.” (Doc. #22, ¶29). Plaintiff alleges that Defendant breached this duty and that Plaintiff was emotionally injured when the Defendant breached the Borrowers Protection Plan agreement. (Id. at ¶7). Plaintiff appears to be alleging that Defendant was negligent in breaching the contract. However, Plaintiff does not cite any legal authority indicating that Arizona recognizes a claim for negligent breach of contract, nor is the Court aware of any such authority. Seeing no cognizable legal theory to support this claim, the Motion to Dismiss Count two is granted.2 ] See Balistreri, 901 F.2d at 699; Weisbuch, 119 F.3d at 783 n.1.

IV. Count Three: “Bad Faith/Breach of Contract”

Plaintiff alleges that Defendant breached the duty of good faith and fair dealing (“bad faith”). “Arizona law implies a covenant of good faith and fair dealing in every contract.” Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 28 (Ariz. 2020). In the context of insurance contracts, “the insurance company must act in good faith in dealing with its insured on a claim.” Noble v. Nat’l Amer. Life Ins. Co., 624 P.2d 866, 868 (Ariz. 1981). “The tort of bad faith can be alleged only if the facts pleaded would, on the basis of an objective standard, show the absence of a reasonable basis for denying the claim.” Id.

1. Defendant as Insurer

Defendant is an insurer with respect to the Borrowers Protection Plan. “Tort actions for breach of covenants implied in certain types of contractual relationships are most often recognized where the type of contract involved is one in which the plaintiff seeks something more than commercial advantage or profit from the defendant. When dealing with . . . an insurer, the client/customer seeks service, security, peace of mind, protection or some other intangible.” Rawlings v. Apodaca, 726 P.2d 565, 575 (Ariz. 1986).

Defendant argues that it is a lender and not an insurer. (Doc. #39, 6). This is true with respect to the mortgage loan agreements between Plaintiff and Defendant. However, Defendant created an insurer/insured relationship with Plaintiff, when the parties entered into the Borrowers Protection Plan agreements. Plaintiff alleges that in the Plan Defendant agreed, in exchange for premium payments, to indemnify Plaintiff by making his mortgage and interest payments in the event of certain covered events. (Doc. #22, ¶10). Defendant was thus offering precisely the type of protection and peace of mind described in Rawlings.3 ] Therefore, Defendant acted as an insurer and is subject to the duty of good faith and fair dealing imposed on insurers for purposes of the Borrowers Protection Plan.

2. Analysis of the Bad Faith Claim

Plaintiff has presented sufficient facts for his claim of bad faith to survive a Rule 12(b)(6) analysis. To state a claim for bad faith a plaintiff must offer facts to show “the absence of a reasonable basis for denying benefits of the policy and the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.” Noble, 624 P.2d at 868.

In his Complaint, Plaintiff alleges that on or about June 15, 2006 and July 17, 2006, he and Defendant entered into the Borrowers Protection Plan agreements, which required him to pay monthly premiums in exchange for Defendant’s promise to pay his monthly loan and interest payments in the event of involuntary unemployment or disability. (Doc. #22, ¶¶7-11). Plaintiff further alleges that he made his premium payments as required and that he was in a car accident on February 2, 2008, which made him disabled and unable to work. (Id. at ¶11, 13-15). Plaintiff further alleges that Defendant stopped making his mortgage payments “[a]t some point in the latter part of 2008 or in 2009,” and that Defendant “should have used the Plan to pay all of the principal and interest payments from March, 2008 to the present pursuant to the contract.” (Id. at ¶¶17, 22).

Because Plaintiff alleges that he paid his premiums and became disabled while protected under the Plan, Plaintiff has met the requirement that he plead an absence of a reasonable basis for the denial of his benefits. Furthermore, because Plaintiff alleges that he initially received benefits under the Plan, he has shown that Defendant had knowledge of his disability and unemployment. These facts meet the threshold standard of giving the defendant “fair notice of what the . . . claim is and the grounds upon which it rests.”Twombly, 550 U.S. at 555. Therefore, Defendant’s Motion to Dismiss is denied as to Plaintiff’s bad faith claim.

V. Count Four: Wrongful Foreclosure

The Arizona state courts have not addressed whether they recognize the tort of wrongful foreclosure.4 ] Assuming for purposes of this Order that such a claim exists under Arizona law, for the claim to be ripe, a foreclosure sale must have occurred. See Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989) (“A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.”). Here, no foreclosure sale has yet taken place. Therefore, this claim is not ripe for adjudication and Plaintiff’s claim for wrongful foreclosure is dismissed. Should the foreclosure sale occur, Plaintiff may move to amend the complaint to re-assert this claim.

VI. Count Five: Negligent Infliction of Mental Anguish

Arizona law recognizes two types of negligent infliction of emotional distress. The first type “requires plaintiff to: (1) witness an injury to a closely related person, (2) suffer mental anguish manifested as physical injury, and (3) be within the zone of danger so as to be subject to an unreasonable risk of bodily harm created by the defendant.” Pierce v. Casas Adobes Baptist Bhurch, 782 P.2d 1162, 1165 (Ariz. 1989) (en banc).

The second type of claim for negligent infliction of emotional distress arises when the distress results from an injury to the claimant themself. See Monaco v. HealthPartners of S. Arizona, 995 P.2d 735, 738-39 ¶¶ 7-8 (Ariz. App.1999) (holding negligent injection of radioactive material into plaintiff was sufficient to support a claim for negligent infliction of emotional distress). To sustain this type of negligent infliction of emotional distress claim, a plaintiff must show:

(a) [the tortfeasor] should have realized that his conduct involved an unreasonable risk of causing the distress . . ., and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Restatement (Second) of Torts, §§ 313 (adopted by Ball v. Prentice, 162 Ariz. 150, 781 P.2d 628, 630 (Ariz. Ct. App.1989)).

Carboun v. City of Chandler, 2005 WL 2408294 at 12.

Moreover, “the Arizona cases and Restatement § 436A make clear that a physical injury, as well as a long-term physical illness or mental disturbance, constitutes sufficient bodily harm to support a claim of negligent infliction of emotional distress.” Monaco, 995 P.2d at 739.

Plaintiff has not alleged the first type of negligent infliction of emotional distress because he has not alleged that he witnessed the injury of another person. However, Plaintiff does allege that he “has been in a state of emotional panic for over one-half year” as a result of Defendant’s threats to foreclose on [his] home loan. (Doc. #22 at ¶41). Plaintiff further alleges facts that show Defendant knew of Plaintiff’s physical disability5 ] and was indifferent to Plaintiff’s “rights and peace of mind” (Id. at ¶50). Construing the facts pleaded in Plaintiff’s Amended Complaint liberally, this claim is sufficiently pleaded to survive a Rule 12(b)(6) motion to dismiss. Defendant’s Motion is thus denied as to Plaintiff’s claim of negligent infliction of emotional distress (labeled “mental anguish”).

VII. Count Six: Intentional Infliction of Mental Anguish

To prove a claim of intentional infliction of emotional distress under Arizona law, Plaintiff must show that: 1) Defendant engaged in extreme and outrageous conduct; 2) Defendant either intended to cause emotional distress or recklessly disregarded the near certainty that emotional distress would result from the conduct; and 3) Plaintiff actually suffered emotional distress because of Defendant’s conduct. Nelson v. Phoenix Resort Corp., 888 P.2d 1375, 1386 (Ariz. Ct. App. 1994).

Plaintiff has alleged that Defendant attempted to foreclose on his home after failing to honor its obligations under the Borrowers Protection Plan. (Doc. #22, ¶¶46-47). Plaintiff also claims that Defendant continued to contact Plaintiff through threatening letters and phone calls after Plaintiff’s counsel asked Defendant to direct communications to him instead. (Doc. #22, ¶¶41-42). Plaintiff asserts that these actions were in “conscious disregard of [his] rights and . . . peace of mind.” (Doc. #22, ¶50). Plaintiff further alleges that Defendant’s conduct has caused him to be “in a state of emotional panic for over one-half year.” (Doc. #22, ¶48). Since Plaintiff is only required to provide a “short and plain statement of the claim,” and need not provide detailed factual allegations, these facts are sufficient to give Defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” See Twombly, 550 U.S. 544, 555 (2007). Defendant’s Motion to Dismiss is thus denied as to Plaintiff’s claim of intentional infliction of emotional distress (labeled “mental anguish”).

Accordingly,

IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. #39) is GRANTED as to Counts Two and Four of the Complaint, and that Count Four is dismissed without prejudice.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. #39) is DENIED as to Counts Three, Five, and Six of the Complaint.

This copy provided by Leagle, Inc.

FINALLY!!! Supreme Court of Florida DENIES FORECLOSURE MILLS Ben-Ezra and Katz, P.A.’s Motion for Rehearing and Shapiro and Fishman, LLP’s Motion for Rehearing

via 4ClosureFraud

RE: Verification of Complaints

NO MORE EXCUSES

Supreme Court of Florida

THURSDAY, JUNE 3, 2010
CASE NOS.: SC09-1460 AND SC09-1579
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE IN
RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE – FORM 1.996
(FINAL JUDGMENT OF FORECLOSURE)

In light of the revised opinion, Ben-Ezra and Katz, P.A.’s Motion for Rehearing and Shapiro and Fishman, LLP’s Motion for Rehearing or Clarification are hereby

DENIED

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE

REVISED

U.S. Banks WILL BE ‘Toast’ If Struggling Homeowners Keep Walking Away (VIDEO)

Huffington Post | Sherry Shen First Posted: 06- 2-10 05:11 PM | Updated: 06- 2-10 05:11 PM

Felix Salmon

click for video

Reuters blogger Felix Salmon believes that if more and more struggling homeowners continue walking away from their homes, U.S. banks could be “toast.”

As strategically defaults continue to rise, some homeowners are using their inability to pay their mortgage to live rent free — often for more than a year, the New York Times reported.

“Trying to renegotiate your mortgage is not a morally reprehensible thing to do,” Salmon said, pointing out that mainstream media organization’s like the New York Times magazine has been publishing columns about this trend and how it makes so much “financial sense.” Corporations walk away from commercial mortgages, Salmon said. “It’s not clear to me why an individual should behave any different,” Salmon said.

Wells Fargo is most exposed to the trend, affecting the bank’s livelihood. “Sand state” banks such as those in Florida and California are also far more exposed. Here’s more from Salmon:

“From the bank’s point of view, if this catches on, there’s a very large number of banks in this country who are just toast. And in hindsight they were just much better off dealing in a realistic way with these borrowers a year ago or two years ago when the problem first reeled its head instead of extending and pretending. Now they are in a pickle.”

“If this trend continues, then the banking system is probably insolvent,” he said.

Mandelman on LPS, DJSP Ent. & Altisource – Nina Easton’s HOT Stocks for Homeowners Losing Homes

Via: Mandelman Matters

(Only in America… Nina Easton.  More on that in a moment.)

The New York Post is reporting that a new gold rush is sweeping the country and it’s all about… are you ready for this… “people looking to get fat off of the $4 billion home foreclosure industry”.

Apparently, in the last two years four companies have either gone public or are about to go public, and each is looking to raise the cash they need to become a “national powerhouse” in the business of providing “streamlined and low-cost methods” for kicking people out of their homes.

According to the Post, “there are currently 6 million homeowners 60 days or more delinquent on their mortgage,” which makes these companies very attractive to investors.

These companies, DJSP Enterprises, whose revenues have increased by 31% over the last year, Altisource Portfolio Solutions, with its 182 percent increase in profits last year, and of course, Lender Processing Services, a company with $2.4 billion in revenue up 29 percent last year — all offer technology linking lenders with law firms in order to reduce the cost and streamline the process of foreclosing on homes and evicting their ex-owners.

Oh, and let’s not forget Prommis Solutions, which turned a $7.9 million profit in 2009 and has filed to go public.

Now, Lender Processing Services is the parent company of DocX, a company that one of the companies under investigation by the Florida Attorney General’s office for being in the business of creating fraudulent documents used in foreclosure proceedings when the servicer doesn’t have any paperwork showing that the trust actually holds the mortgage.

But, LPS doesn’t seem terribly concerned about that investigation, or any of the others that threaten to expose this company for wrongdoing.  They say it’s all just a mix-up… funny story, that sort of thing.  Here’s the company’s CEO on May 20th:

LPS’ CEO Jeffrey Carbiener said “our earnings are quality earnings. They translate into cash flow.  LPS generated $349 million in cash last year.”

LPS provides all levels of mortgage default services services for when a loan goes bad.  “Because we have a strong business model, we’re able to weather economic challenges,” Carbiener said.  LPS’s growth is continuing into 2010, with first-quarter revenue up 11.8 percent and adjusted earnings up 26.5 percent.

“We’ve had good success and we expect that success to continue into the future,” Carbiener said.

These types of companies get fees from the lenders on each property, and from the law firms that file the foreclosure actions. So, their prospectuses warn investors:

“A turnaround in the housing market or additional mortgage-modification plans from Washington may negatively impact our profits.”

Well, there’s not much to worry about in either of those regards, at this point anyway.  But, I suppose there is always the risk that there could be an outbreak of competence in Washington.  Still… I’d probably go long at this point.

As long as our economy continues to sink into an abyss, any of these companies is poised to become the next Microsoft, but God forbid our elected representatives actually figure something out and we start to see stabilization in the housing market, leading to a real recovery, well… better sell these stocks short and fast, ‘cause the better things get the worse they’ll do.

The whole thing got me to thinking… this must be awfully confusing to John Paulsen and the guys at Goldman.  They want to short the housing market in every possible way, but to do that in this case, they have to go long.  I’ll bet some traders have become dizzy and maybe even passed out just thinking about that.

A Goldman Trader: “What do I do again?  I need 3.5 million shares short… no, long… no, short… no, damnit!”

So, if you’re a homeowner at risk of losing your home to foreclosure, or even if you’re not looking at foreclosure, but just can’t stand the thought of watching another hundred grand in equity go up in smoke, I have some important investment advice for 2010 and 2011 that you’ll want to hear.

Why not consider strategically defaulting on your underwater mortgage in order to start dollar cost averaging into this brand new and exciting offering:

Nina Easton’s

Empty Homes Hi-Yield Bond Fund

To learn more about Nina’s role in the foreclosure crisis, click where her name appears in orange above.

The fund’s objective is to acquire significant positions in bonds issued by growth companies that are positioned to capitalize on the emerging and exciting multi-billion dollar foreclosure industry.  The fund’s investment strategy focuses on:

  • Technologies that enable faster, high-quality document forgeries.
  • Property preservation companies that throw people out first time, every time.
  • Title insurance companies that don’t care who owns the property.
  • Lock-Box and REO-FOR-SALE sign manufacturers.
  • Home auction companies.
  • Firms that lobby on behalf of the banking industry.
  • And, of course, the makers of Xanax and Ativan.

People, this is a once in a lifetime investment opportunity to place a bet on our growing foreclosure industry, supported by the total and ongoing incompetence of our government!  And that’s not all…

In order to hedge your position in Nina’s Empty Homes Hi-Yield Bond Fund, or for those of you who think the administration and other branches government may at some point actually start getting something right, I’m also working on getting the Obama Administration to agree to be a counterparty in credit default swaps related to certificate holders in Nina Easton’s Empty Homes Hi-Yield Bond Fund.

Nothing is definite at this point, but I think it’s important that dumb money be able to short our multi-billion dollar foreclosure industry, so for those that think the foreclosure crisis will be ending soon, stand by because my soon to be available Obama Competence Credit Default Swaps should be available soon.  That’s right, you can sell the foreclosure industry short when you invest in Obama Competence Credit Default Swaps.

Plenty of Upside Remaining…

Some have said…

“But Nina… we’ve already lost 7 million homes to foreclosure.  Haven’t I already missed out on my chance to profit from this exciting opportunity?”

No, no… silly human… there’s plenty of upside remaining in the foreclosure market.  Housing prices are still in a free fall, foreclosures are still coming in at over 300,000 a month, and we’re on the fifteenth straight month at those levels.

There are 6 million people more than 60 days delinquent on their mortgages right now, and Goldman Sachs forecasts 14 million more foreclosures in the next five years!  And don’t forget… the good news is that the ALT-A and Option ARM loans that haven’t even started adjusting yet!

Unemployment?  Fuggetaboutit!  I mean, no one is even trying to fix that anymore!  We’ve got more people unemployed for more than 30 weeks than since before I was born, and at this point our only strategy is to report made up numbers generated by the Bureau of Labor Statistics.  I think it’s pretty safe to say that it’s all downhill from here!

So, worry not.  It’s not at all too late for you to get involved and make your fortune in the fast-paced and exciting foreclosure industry, because there’s plenty of upside left in the American foreclosure market.  Let’s see the Chinese beat us at this!  No chance… they won’t even try.

And the people trying to stop this foreclosure thing… please.  Here’s what Nina Easton wrote in her blog about a demonstration near her home:

Now this event would accurately be called a “protest”; if it were taking place at, say, a bank or the U.S. Capitol. But when hundreds of loud and angry strangers are descending on your family, your children, and your home, a more apt description of this assemblage would be ‘mob.’

You tell ‘em Nina!

Others ask…

“Nina, I heard HAMP was doing better at modifying loans lately.  Is this something I should be concerned about?”

I wouldn’t be the least bit concerned, and here’s why…

First of all, you’d have to believe that the government’s program will actually continue to show improvement, and at this point, there’s very little evidence upon which to base that sort of assumption.

As of right now, there have been about the same number of homeowners kicked out of HAMP as have received permanent modifications, and don’t forget there are still more than 600,000 homeowners stuck in the purgatory that the government refers to as a “trial modification,” so look for at least a few hundred thousand more foreclosures there, for sure!

It really is an exciting time to be investing in the foreclosure industry in this country, and there’s no better way than through Nina Easton’s Empty Homes Hi-Yield Bond Fund.

Now, it is true that HAMP, as of June 1st, will start requiring homeowners to verify their incomes prior to being placed into a trial modification, and the early indications are that a much higher percentage of homeowners will ultimately be granted permanent modifications in future months as a result of this new requirement.

Big deal… The numbers of homeowners entering the program declined dramatically as soon as the servicers started asking for proof of income in advance of being granted a trial modification, so even if this does make HAMP incrementally better, it won’t come close to touching the more than 300,000 new foreclosures occurring each month in this country!  How could you ask for better fundamentals than that?

And the best part is… you can still rely on the fact that HAMP is “VOLUNTARY” as far as the banks and servicers are concerned!

So, relax… you don’t think the banks and servicers are going to do anything to stop foreclosures, do you?  Of course not!  And it’s still… ALL UP TO THEM!

If there’s one thing you can depend on, it’s that the banks and servicers will continue to fuel the foreclosure industry’s growth, so with the government allowing the banks total discretion on all foreclosure decisions, investing in Nina Easton’s Empty Homes Hi-Yield Bond Fund is a safe bet and a sure winner.  It’s like we’ve got Colonel Sanders guarding the chickens, if you know what I mean.

Barring some totally unforeseen change in the administration, like Paul Volker being taken seriously, Bernanke allowing us to audit the Fed, Tim Geithner turning on his banking buddies on Wall Street, or Liz Warren being given teeth, there’s no way Obama’s Making Home Affordable program is going to address the millions more homes that will be lost as a result of the foreclosure crisis.

And come on… I understand that past performance is no assurance of future results, but Volker taken seriously?  Geithner turning on Wall Street?  Liz Warren being given teeth?  Bernanke letting anyone inside the Fed?  HAHAHAHAHA… I know… anything can happen, but come on… it’s like thinking that maybe the banksters are going to wake up one morning afraid of Obama.  Come on… you’re killing me… not in this lifetime, baby!

No, folks… the good news for our emerging foreclosure industry, and for Nina Easton’s new Empty Homes Hi-Yield Bond Fund, is that our government has failed at every single turn in trying to stem the tide of foreclosures in this country, and there’s no reason to believe they’re going to be any more competent in the future!

Some say that America has lost its leadership position in the world, but I don’t believe that for a second, and I think we’re already proving it with our clear dominance in the foreclosure industry.  There’s no other country on the globe that has anywhere near as vibrant a foreclosure industry as we do here in the good old U.S.A.

We’re the dominant world leader in foreclosure production, and with nothing in place to stimulate economic growth, nothing even on the drawing board to reverse the trends in unemployment, and all of our money and then some going to prop up failed financial institutions that remain insolvent, how can anyone not think that we will maintain our leadership position as the foreclosure capital of the free world?

And don’t worry about all these pesky demonstrations by homeowners.  Like Nina wrote in her blog last week about the unwashed masses that were demonstrating in front of her house, just because her neighbor works for some bank:

Waving signs denouncing bank ‘greed,’ hordes of invaders poured out of 14 school buses,” childishly putting “greed” in quotes as if referring to unicorns, hobbits, or some other imaginary entity.

Ooooh, snap!  We love you Nina!

So, don’t miss out on the opportunity to go long on the promise of our government’s ongoing incompetence by investing in Nina Easton’s Empty Homes Hi-Yield Bond Fund today!

Disclaimer: Past incompetence is no assurance of continued ineptitude, or future ineffectiveness.

Don’t worry about not having any money left in your IRA or 401(k), many of our investors simply stop making mortgage payments and then invest those amounts in the fund each month.  We even offer direct deposit, so you can just call your bank where your mortgage payments are automatically going now, and have them redirected toNina Easton’s Empty Homes Hi-Yield Bond Fund!

It’s that simple!  Why not start rooting for more foreclosures today?

Isn’t it time to get on the right side of this foreclosure crisis thing, by investing on the winning side!  Sure you may lose a house or two, but so what?  You’re so far underwater that the only difference between you and a renter is that a renter has more rights and can’t be evicted as quickly.

Besides with the money you’ll make investing in my new Empty Homes Hi-Yield Bond Fund, soon you’ll not only be able to buy the home across the street for half the price, you’ll be able to pay  cash!

For more information, call:

1-800-4-EMPTY-HOMES

Or send email to:

invest@throwthemouttoday.com

Operators are standing by to take your call.


~~~~~~~~~~~~

IMPORTANT DISCLAIMERS:

The Empty Homes Hi-Yield Bond Fund is not registered with FINRA or the SIPC, but so what, neither are trillions in derivatives.

Although current personnel working for the administration can be counted on as entirely lacking in ability or skill, theEmpty Homes Hi-Yield Bond Fund makes no assurances pertaining to the stupidity or utter uselessness of those who may work for the administration in the future.

In the event of an outbreak of competence in Washington D.C. investors should recognize that they could lose their investment in the Empty Homes Hi-Yield Bond Fund, although at this point, the FUND’s management believes that statistically this risk falls somewhere between the risk of shark attack in Indiana, and being killed by falling airplane parts while shopping at an indoor mall.

Nina Easton’s

Empty Homes Hi-Yield Bond Fund

Your Ticket to Winning Our Nation’s Race to the Bottom

Fictional Securities Not Offered by Mandelman Matters.  This, of course, was a joke.  Except for the stuff at the top about the companies like Lender Processing Services… that stuff is real, and should make you want to throw up.  Oh, and the stuff about Nina Easton was real too, and I can’t decide whether to ignore her, or write something about her every single day for the rest of my life.

Bank of America RECORDED CALL regarding FORECLOSURE FRAUD *MUST LISTEN*

I think this is what WE all go through!

jwerner79 — April 25, 2009 — This call happened 4/24/09 whereas a Countrywide representative called me, Jason Werner, literally while I was driving home from a pre-mediation conference. The loan amount is less than $50,000. This is a good example of a crime trying to be covered by the Treasury. Please see my comments to follow. Thank you.

BANK OF AMERICA channels BRITNEY SPEARS “OOPS I DID IT AGAIN”: Foreclosing AGAIN on a MORTGAGE FREE HOME!

ARE YOU NEXT?

"Oops I did it Again"

Tuolumne Woman Owns Home Outright

POSTED: 3:58 pm PDT May 26, 2010
UPDATED: 5:53 pm PDT May 26, 2010

TUOLUMNE, Calif. — Nancy Willmes paid cash for her Tuolumne home in 2001. So she was quite surprised when Bank of America send her a notice of default on the property in February.

“I honestly felt like Bank of America was trying to steal my property,” Willmes said.

She contacted Bank of America to try to find out why the bank believed it could foreclose on property she had purchased outright.

Willmes has chain-of-ownership records, which show Bank of America had sold the property to Fannie Mae years earlier. Fannie Mae foreclosed on the previous owner, and Willmes purchased the property with cash from Fannie Mae.

But Willmes said Bank of America did not care about the documentation.

The bank proceeded with the foreclosure, placing ads in the local paper and nailing a foreclosure notice to her door.

“I called the title company, the title company called B of A, and they refused to rescind it,” Willmes said.
Fearful she would lose her home to the bank, Willmes called KCRA Call 3, and a Call 3 volunteer contacted Bank of America.

Willmes said that’s when Bank of America began returning her phone calls.

The bank rescinded the notice of trustee sale, stopping the foreclosure.

In a statement to KCRA 3, Bank of America said the problem was a system error. It said it updated its records and canceled the sale.

“This is my whole life. This is my future,” Willmes said. “I’ve got to thank you guys for basically giving me back my home. That is a big relief.”

Copyright 2010 by KCRA.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

FORECLOSURE…THE NEW “IT” THING? OWNERS STOP PAYING THE MORTGAGE…FANTASTIC!

Can you imagine if everyone just stopped paying that thing called mortgage but kept up with homeowners/condo associations (because these can foreclose faster than you can blink) Oh what a wonderful world!

This article really does not portray the majority. Some don’t have a job period! If you can… get a great attorney, a loan audit and the lender to the table!

Owners Stop Paying Mortgage … and Stop Fretting About It

Chip Litherland for The New York Times Wendy Pemberton, a barber in Florida, with a customer, Howard Cook. She stopped paying her mortgage two years ago.

By DAVID STREITFELD NYTIMES
Published: May 31, 2010

ST. PETERSBURG, Fla. — For Alex Pemberton and Susan Reboyras, foreclosure is becoming a way of life — something they did not want but are in no hurry to get out of.

Foreclosure has allowed them to stabilize the family business. Go to Outback occasionally for a steak. Take their gas-guzzling airboat out for the weekend. Visit the Hard Rock Casino.

Chip Litherland for The New York Times Alex Pemberton and Susan Reboyras stopped paying the mortgage on their house in St. Petersburg, Fla., last summer.

“Instead of the house dragging us down, it’s become a life raft,” said Mr. Pemberton, who stopped paying themortgage on their house here last summer. “It’s really been a blessing.”

A growing number of the people whose homes are in foreclosure are refusing to slink away in shame. They are fashioning a sort of homemade mortgage modification, one that brings their payments all the way down to zero. They use the money they save to get back on their feet or just get by.

This type of modification does not beg for a lender’s permission but is delivered as an ultimatum: Force me out if you can. Any moral qualms are overshadowed by a conviction that the banks created the crisis by snookering homeowners with loans that got them in over their heads.

“I tried to explain my situation to the lender, but they wouldn’t help,” said Mr. Pemberton’s mother, Wendy Pemberton, herself in foreclosure on a small house a few blocks away from her son’s. She stopped paying her mortgage two years ago after a bout with lung cancer. “They’re all crooks.”

Foreclosure procedures have been initiated against 1.7 million of the nation’s households. The pace of resolving these problem loans is slow and getting slower because of legal challenges, foreclosure moratoriums, government pressure to offer modifications and the inability of the lenders to cope with so many souring mortgages.

The average borrower in foreclosure has been delinquent for 438 days before actually being evicted, up from 251 days in January 2008, according to LPS Applied Analytics.

While there are no firm figures on how many households are following the Pemberton-Reboyras path of passive resistance, real estate agents and other experts say the number of overextended borrowers taking the “free rent” approach is on the rise.

There is no question, though, that for some borrowers in default, foreclosure is only a theoretical threat for a long time.

More than 650,000 households had not paid in 18 months, LPS calculated earlier this year. With 19 percent of those homes, the lender had not even begun to take action to repossess the property — double the rate of a year earlier.

In some states, including California and Texas, lenders can pursue foreclosures outside of the courts. With the lender in control, the pace can be brisk. But in Florida, New York and 19 other states, judicial foreclosure is the rule, which slows the process substantially.

In Pinellas and Pasco counties, which include St. Petersburg and the suburbs to the north, there are 34,000 open foreclosure cases, said J. Thomas McGrady, chief judge of the Pinellas-Pasco Circuit. Ten years ago, the average was about 4,000. “The volume is killing us,” Judge McGrady said.

Mr. Pemberton and Ms. Reboyras decided to stop paying because their business, which restores attics that have been invaded by pests, was on the verge of failing. Scrambling to get by, their credit already shot, they had little to lose.

“We could pay the mortgage company way more than the house is worth and starve to death,” said Mr. Pemberton, 43. “Or we could pay ourselves so our business could sustain us and people who work for us over a long period of time. It may sound very horrible, but it comes down to a self-preservation thing.”

They used the $1,837 a month that they were not paying their lender to publicize A Plus Restorations, first with print ads, then local television. Word apparently got around, because the business is recovering.

The couple owe $280,000 on the house, where they live with Ms. Reboyras’s two daughters, their two dogs and a very round pet raccoon named Roxanne. The house is worth less than half that amount — which they say would be their starting point in future negotiations with their lender.

“If they took the house from us, that’s all they would end up getting for it anyway,” said Ms. Reboyras, 46.

One reason the house is worth so much less than the debt is because of the real estate crash. But the couple also refinanced at the height of the market, taking out cash to buy a truck they used as a contest prize for their hired animal trappers.

Chip Litherland for The New York Times Mark P. Stopa is a lawyer who says he has 350 clients in foreclosure, each paying him $1,500 a year in fees.

It was a stupid move by their lender, according to Mr. Pemberton. “They went outside their own guidelines on debt to income,” he said. “And when they did, they put themselves in jeopardy.”

His mother, Wendy Pemberton, who has been cutting hair at the same barber shop for 30 years, has been in default since spring 2008. Mrs. Pemberton, 68, refinanced several times during the boom but says she benefited only once, when she got enough money for a new roof. The other times, she said, unscrupulous salesmen promised her lower rates but simply charged her high fees.

Even without the burden of paying $938 a month for her decaying house, Mrs. Pemberton is having a tough time. Most of her customers are senior citizens who pay only $8 for a cut, and they are spacing out their visits.

“The longer I’m in foreclosure, the better,” she said.

In Florida, the average property spends 518 days in foreclosure, second only to New York’s 561 days. Defense attorneys stress they can keep this number high.

Both generations of Pembertons have hired a local lawyer, Mark P. Stopa. He sends out letters — 1,700 in a recent week — to Floridians who have had a foreclosure suit filed against them by a lender.

Even if you have “no defenses,” the form letter says, “you may be able to keep living in your home for weeks, months or even years without paying your mortgage.”

About 10 new clients a week sign up, according to Mr. Stopa, who says he now has 350 clients in foreclosure, each of whom pays $1,500 a year for a maximum of six hours of attorney time. “I just do as much as needs to be done to force the bank to prove its case,” Mr. Stopa said.

Many mortgages were sold by the original lender, a circumstance that homeowners’ lawyers try to exploit by asking them to prove they own the loan. In Mrs. Pemberton’s case, Mr. Stopa filed a motion to dismiss on March 17, 2009, and the case has not moved since then. He filed a similar motion in her son’s case last December.

From the lenders’ standpoint, people who stay in their homes without paying the mortgage or actively trying to work out some other solution, like selling it, are “milking the process,” said Kyle Lundstedt, managing director of Lender Processing Service’s analytics group. LPS provides technology, services and data to the mortgage industry.  DinSFLA: WHAT AN IDIOTIC THING TO SAY! Who is exactly milking what??

These “free riders” are “the unintended and unfortunate consequence” of lenders struggling to work out a solution, Mr. Lundstedt said. “These people are playing a dangerous game. There are processes in many states to go after folks who have substantial assets postforeclosure.” DinSFLA: I invite you Mr. Lundstedt to look over this blog and see your “Free Riders”. SIR!

But for borrowers like Jim Tsiogas, the benefits of not paying now outweigh any worries about the future.

“I stopped paying in August 2008,” said Mr. Tsiogas, who is in foreclosure on his house and two rental properties. “I told the lady at the bank, ‘I can’t afford $2,500. I can only afford $1,300.’ ”

Mr. Tsiogas, who lives on the coast south of St. Petersburg, blames his lenders for being unwilling to help when the crash began and his properties needed shoring up.

Their attitude seems to have changed since he went into foreclosure. Now their letters say things like “we’re willing to work with you.” But Mr. Tsiogas feels little urge to respond.

“I need another year,” he said, “and I’m going to be pretty comfortable.”

“Cat Out Of the Bag” (Trade Secrets) in CAPITAL ONE, NA v. Forbes, Fla: Dist. Court of Appeal, 2nd Dist. 2010

CAPITAL ONE, N.A., as successor by merger to Chevy Chase Bank, F.S.B., Petitioner,
v.
DOUGLAS R. FORBES, Respondent.

Case No. 2D09-4735.

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2010.

Carrie Ann Wozniak of Akerman Senterfitt, Orlando, for Petitioner.

Nicole E. Durkin of Deeb & Durkin, P.A., St. Petersburg, for Respondent.

LaROSE, Judge.

Capital One, N.A. (the Bank), seeks a writ of certiorari to quash a protective order that allows the disclosure of trade secrets to Mr. Forbes’s consultants and experts. The Bank also asks us to quash the trial court’s order because it did not sufficiently limit the scope of discovery.

Factual Background

The Bank filed a mortgage foreclosure action against Mr. Forbes. Allegedly, Mr. Forbes breached a construction loan agreement. Mr. Forbes filed a counterclaim alleging breach of contract, anticipatory breach of contract, and fraud in the inducement.

Mr. Forbes requested documents from the Bank. It produced responsive documents except, as relevant here, for requests ten and thirteen:

10. All technical and administrative manuals used in the internal communications system of Lender, or through which Lender policies, practices and procedures were communicated to its bank officers, employees, agents, partners, managers and/or “staff,” effective during the period from January 1, 2006 through the present, including, but not limited to, those manuals relating to construction or developer financing.

. . . .

13. All complaints, claims or protests brought in any judicial forum, arbitration proceeding, or industry dispute resolution forum by Lender clients or third parties against Lender alleging any breach of obligations, terms, conditions, or responsibilities by Lender in the conduct or exercise of its responsibilities and obligations with respect to or arising from engaging in the business of banking within the preceding five (5) years.

The Bank sought a protective order. The Bank argued that its construction-lending manual is a trade secret requiring adequate measures to protect against improper dissemination. There appears to be no dispute that the manual is a trade secret. The Bank also argued that other complaints, claims, or protests made against the Bank in any forum in the past five years were irrelevant, not reasonably calculated to lead to the discovery of any admissible evidence, and intended solely to harass the Bank. See generally, Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999) (holding that there is an exception to the rule of complete discovery where it may be harassing or embarrassing).

After a hearing, the trial court denied the Bank’s motion as to request 13, except it narrowed the time frame to three years. The trial court concluded that the requested documents “may potentially lead to admissible evidence just based upon the counter plaintiff’s theory of policy written or potentially otherwise as to the lender’s motive to pull out of the project.”

As for the manual, the Bank’s counsel brought the document to the hearing for an in-camera inspection. The trial court did not inspect the materials but accepted counsel’s explanation that the materials contained the Bank’s lending guidelines and practices. The Bank’s counsel argued that the Bank would produce the materials if the trial court entered an adequate confidentiality order. The trial court denied the motion for a protective order, but agreed to grant a “confidentiality agreement between the parties for the protection of [the Bank].”

The trial court asked Mr. Forbes’s counsel to take the Bank’s proposed confidentiality order from the hearing and draft an order satisfactory to both sides. The Bank and Mr. Forbes could not agree. Each submitted a proposed order to the trial court. To center the dispute, we note that Mr. Forbes’s proposed order had no provision requiring consultants, experts, or their employees retained for the litigation to consent to the confidentiality provisions before viewing the manual.

The trial court adopted Mr. Forbes’s proposed order. The order provided that documents marked “Confidential” shall not be disclosed to any persons, except for counsel actively engaged in the litigation along with their employees and staff, parties and employees of the parties, persons with prior knowledge of the documents or the confidential information contained therein, and court officials involved in the litigation. Other relevant portions of the order provide as follows:

3. Plaintiff shall produce the documents requested, however the time period shall be limited to three (3) years prior to the date of this Order.

4. That the documents being produced pursuant to Paragraph 10 of Defendant’s First Request for Production of Documents which are marked “Confidential” by Plaintiff’s counsel shall not be disclosed to any persons, except that such documents may be disclosed or otherwise utilized as follows:

. . . .

(B) Such documents may also be disclosed to persons noticed for depositions during the course of such depositions, including retained outside consultants or experts and their employees retained for the purpose of assisting counsel in the litigation;

. . . .

5. Within 30 days after final conclusion of all aspects of this litigation, stamped confidential documents and all copies of same . . . shall be returned to the party or person which produced such documents or, at the option of the producer, destroyed.

(Emphasis added.)

Certiorari Jurisdiction

We may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. We examine prongs two and three first to determine our certiorari jurisdiction.” DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d DCA 2007)(citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d DCA 1995)). If jurisdictional prongs two and three are not fulfilled, then we dismiss the petition rather than deny it. Id.

Analysis

Other Claims Specified in Request 13

The trial court denied, in part, and granted, in part, the Bank’s motion for a protective order as to these materials. The trial court narrowed Mr. Forbes’s request from five years to three years but did not otherwise narrow its breadth.

Discovery allows the parties to find potentially relevant evidence. The conduct of discovery is left to the trial court’s sound discretion. Fla. R. Civ. P. 1.280(b)(1); Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 193 (Fla. 2003). The order on review does not necessarily cause irreparable harm by allowing discovery of what the Bank claims to be irrelevant materials. See Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008) (citingFirst Paradee, Ltd. v. Jones, 828 So. 2d 483, 485 (Fla. 2d DCA 2002)). Thus, certiorari jurisdiction is improper. We dismiss this portion of the Bank’s petition.

Manuals Specified in Request 10

The Bank argues that the trial court departed from the essential requirements of law by requiring the disclosure of trade secrets without providing adequate protective measures. An order requiring disclosure of trade secrets may cause irreparable injury that cannot be corrected on appeal; the disclosure lets the “cat out of the bag.” Id. Here, the trial court did not err. Its order sufficiently protects the Bank. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). The Bank is concerned that experts or consultants retained by Mr. Forbes will misuse the materials. The order does not ignore that concern; only specified individuals may have access to the materials for the stated and limited purposes of assisting counsel in the litigation. No other use is contemplated. Further, the order requires that designated confidential materials, and any copies, be returned or destroyed at the end of the litigation.

Perhaps the order could have been clearer. However, we understand it to limit experts’ and consultants’ access to confidential information. Paragraph 4 of the order provides a blanket protection that documents may not be disclosed to “any person,” with enumerated exceptions. Importantly, the identification of people to whom access is granted is drawn narrowly to include only the parties and their employees, court employees, and outside consultants and experts. As for the consultants and experts, the order allows access only for a limited time and for the limited purposes of assisting counsel in this litigation.[1] The trial court did not depart from the essential requirements of law by entering the order proposed by Mr. Forbes’s counsel. As to this issue, the petition for certiorari is denied.

Dismissed in part; denied in part.

SILBERMAN and CRENSHAW, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] We do not decide who would be liable should a consultant or expert violate the protective order. See, e.g.,Quinter v. Volkswagen of Am., 676 F.2d 969, 973 (3d Cir. 1982) (holding a nonparty liable for civil contempt where the nonparty had knowledge of the protective order.)