Borrowers in foreclosure can be highly creative in bringing claims they think will help protect their homes. In one recent case, after foreclosure counsel had obtained a foreclosure judgment against a borrower in state Supreme Court, the borrower filed a federal action against the current loan servicer, the original lender, and several other parties hoping to disrupt the foreclosure sale. Adam Leitman Bailey, P.C. was brought in to defend the loan servicer in the federal case.
The borrower, sought to void his mortgage, vacate the foreclosure judgment, and obtain treble damages. He alleged that the loan servicer, in conjunction with many participants in the sub-prime loan industry, were in a conspiracy to defraud him in violation of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) and state fraud law. The borrower based his claim on his discovery of a real estate tax assessment of his home, which was lower than the purchase price. This lead him to allege his loan was illegally inflated by the original lender on the borrower’s purchase of the property in 2008 – claiming it was a “liar’s loan.”
Since the borrower’s complaint touched on multiple areas of potential liability, Adam Leitman Bailey, P.C. comprehensively researched the history of the borrower and the loan, determining that the borrower had gone through bankruptcy twice, and that he had refinanced the original loan. With this information, the firm filed a multi-pronged motion to dismiss, arguing that: the borrower’s claims violated the applicable statutes of limitations because he should have discovered any alleged misconduct no later than his first bankruptcy; the action was barred by the Rooker-Feldman doctrine, which prohibits federal courts from collaterally attacking state court judgments; the borrower lacked standing because the claim could only be asserted by his bankruptcy trustee; and the borrower did not state a claim for a RICO violation or common law fraud.
Based on the briefing of Adam Leitman Bailey, P.C., the U.S. District Court for the Eastern District of New York not only dismissed the complaint against its client, the loan servicer, but also dismissed the complaint as to all other defendants, and granted dismissal with prejudice and without leave to re-plead, barring the borrower from bringing such claims again.
William J. Geller and Jackie Halpern Weinstein of the litigation practice group of Adam Leitman Bailey, P.C. represented the loan servicer in its wholly successful defense of this action.