Santamaria' BofA Motion To Dismiss

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF’ FLORIDA
ORLANDO DIVISION
CASE NO. 6: 10-CV-01933-JA-DAB
ABDIEL ECHDVERRIA &
ISABEL SANTAMARIA,

Plaintiffs,

vs.

BAC HOME LOANS SERVICING, LP, &

BANK OF AMERTCA, N.A.
Defendants.

BAC HOME LOANS SERVICING. LP &
BANK OF AMERICA. N.A.’S MOTION TO DISMISS ABDIEL BCHEVERRIA &
ISABEL SANTAMARIA’S F’IRST AMENDED COMPLAINT.
OR IN THE ALTERNATIVE. F’OR MORB DEFINITE STATBMBNT
Defendants, BAC Home Loans Servicing, LP (BAC) and Bank of America, N.A.

(collectively, Defendants), by and through their undersigned counsel, hereby move to dismiss
the First Amended Complaint filed by Plaintiffs, Abdiel Echeverria and Isabel Santamaria
(collectively Plaintiffs), or in the alternative, for a more definitive statement.

-I. INTRODUCTION Plaintiffs,
proceedingpro se, frled their First Amended Complaint against Defenclants on

February 3,2011 (Amended Complaint), which consists of 123 allegations and 199 pages,
including exhibits. Plaintiffs essentially argue that they should be excused from their failure to
pay the amount due under the mortgage agreement because “Bank of America was warned many
times” by Plaintiffs that they were in “dire straights” and that they “needed assistance.” (Am.
Compl. I76). Plaintiffs also attempt to evade their contractual obligations under the mortgage
Case 6:10-cv-01933-JA-DAB Document 19 Filed02118111 Page 2 of 15

agreement by asserting that their default on the loan was based on Defendants’ intent to hatch a
“callous and malicious” plot designed to prolong the loan modification process so that Plaintiffs
would “fall deeper and deeper in debt and continue to default again.” Id. Although these
arguments are creative, Plaintiffs have completely failed to state a claim under any legal theory.

For this reason, Plaintiffs’ Amended Complaint is meritless and should be dismissed with
prejudice.

BACKGROUND AND PITOCEDURAL HTSTONY
-II.
On or about January 28, 2008, Plaintiff received title to the property located at 499
Cellini Avenue NE, Palm Bay, Florida 32907 (the Property). The deed was recorded on March

6,2008, in the Official Records of Brevard County, Book 5848, Page 6517.

On February 29, 2008, Plaintiffs executed a promissory note in favor of the original
lender Taylor, Bean & Whitaker Mortgage Corporation, in the original principal amount of
$144,079.00 (the Note), which note was secured by a mortgage to Mortgage Elsctronic
Registration Systems, Inc. as nominee for Taylor, Bean & Whitaker Mortgage Corporation (the
Mortgage), dated February 29,2008. The Mortgage is recorded in the Official Records of

Brevard County, Book 5848, Page 6518. Plaintiffs defaulted under the terms of the Note and the
Mortgage; however, no foreclosure action is currently pending with respect to the Property.

Plaintiffs filed their Amended Complaint against Defendants on February 3, 2011.1 The
Amended Complaint asserts the following claims: (1) Count I -Violation of the Real Estate
Settlement Procedures Act (RESPA); (2) Count II -Breach of Contract -Promissory Note and
Mortgage; (3) Count III -Unreasonable Collection Efforts; (4) Count IV -Intentional

t

The original Complaint in this action was filed on December 27,2010. Plaintiffs emailed an
incomplete version of their Amended Complaint to counsel for Bank of America on January 30,2011′
Plaintiffs later filed an incomplete version of their Amended Complaint with the Court on February 2,
2017, and a complete version of their Amended Complaint with the Court on February 3,2011.
Case 6:1 0-cv-01 933-JA-DAB Document 19 Flled 02118111 Page 3 of 1 5

Misrepresentation; (5) Count V -Fair Debt Collection Practices Act (FDCPA); (6) Count VI Safeguards
Rule of the Gramm Leach Bliley Act; and (7) Count VII -Violations of Racketeering
Influenced and Corrupt Organizations Act (RICO).

-III. Lnc-q.L STANDARD-

Rule l2(b)(6) of the Federal Rules of Civil Procedure permits a court to dismiss a claim if
the allegations fail to state a claim against a defendant. Dismissal of a complaint is appropriate
in situations where there exists no construction of the factual allegations sufficient to suppoli the

cause of action. Florida Sofnuare Syst., Inc., v. Columbia/HcA Healthcare Corp.,46 F. Supp.
2d 1276,1280 (M.D. Fla. 1999) (citing Conley v. Gibson,355 U.S. al 0957)); see also Access
Now, Inc. v. Southwest Airline Co.,385 F.3d 1324, 1326 (llth Cir. 2004) (quoting Ilishon v.
King & Spalding,467 U.5.69,73 (1984)). “Furthermore, when ruling on a motion to dismiss, a
trial court is required to view the complaint in the light most favorable to the plaintiff.” Id.
“However, when, on the basis of a dispositive issue of law, no construction of the factual
allegations of a complaint will support the cause of action, dismissal of the complaint is
appropriate .” Id.; see also Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F .2d
1771,1174 (llth Cir. 1993).

Although Plaintiffs’ pro se pleadings are construed liberally, some minimal pleading
standard does exist. Wagner v. Daewoo Heaty Industries Anr. Corp., 289 F.3d 1268, 1270 (llth
Cir.), rev’d on other grounds,314 F.3d 541 (llth Cir. 2002) (en banc).2 Thus, to survive a
motion to dismiss, Plaintiffs must do more than merely state legal conclusions; they are required

to allege some specific factual basis for those conclusions or face dismissal of their claims.

“lclonclusory allegations, unwarranted deductions offacts or legal conclusions masquerading as facts
will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (llth Cir. 2002)
(intemal quotation marks and citation omitted).
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 4 of 15

-IV. Lnc.q.r-DlscussroN-

A.
Plaintiffs’Amended Complaint is Inadequately Pled and Should be Dismissed
Federal Rule of Civil Procedure S(a)(2) requires a short and plain statement showing that
the pleader is entitled to relief. This obligation demands “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will no do.” See Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citation and quotation omitted); Davila v. Delta Air
Lines, lnc.,326 F.3d 1183, 1135 (llth Cir. 2003) (“Conclusory allegations or legai

conclusions masquerading as facts will not prevent dismissal.”). In other words, “[e]ven under
Rule 8(a)’s notice pleading provision .a complaint must include allegations respecting all
material elements of all claims asserted; bare legal conclusions attached to narrative facts will
not suffice.” Ramirez-Fiqueroa v. Polk County Sheriffs Office, No. 8:06-cv-2161-T-30TBM,
2007 WL 1752599, at *5 (M.D. Fla. June 15,2007).

In their Amended Complaint, Plaintiffs fail to identify the specific facts and elements
necessary to establish their causes of action. Instead, through a series of conclusory and vague
allegations, Plaintiffs attempt to assert causes of action for violation of RESPA (Count I),
intentional misrepresentation (Count IV), violation of FDCPA (Count V), violation of the
Federal Safeguards Rule (Count VI), and violation of the RICO statute (Count VIf . Likewise,
while Count II of Plaintiff s Amended Complaint purports to state a claim for breach of contract,
Plaintiffs’allegations completely fail to address any of the elements of a breach of contact claim,
and rather, appear to allege violations under a conglomeration of regulations of the Department
of Housing and Urban Development (HUD). These claims, as presented, contain nothing more
than a series of legal conclusions, and therefore, fail to satisfli the pleading standards of the
Federal Rules of Civil Procedure. Accordingly, Plaintiffs’ claims, to the extent they intended to
Case 6:10-cv-01933-JA-DAB Document 19 Filed02118111 Page 5 of 15

assert them, should be dismissed.

Alternatively, the Court should require Plaintiffs to provide a more definite statement of
all of their claims. A motion for more definite statement is appropriate where a pleading is “so
vague or ambiguous that the party cannot reasonably prepare a response.” FED. R. Crv. P. l2(e).
The Amended Complaint is such a pleading. Therefore, Plaintiffs should be compclled to

provide a more definite statement of their claims.

B. No Cause of Action under RESPA
l. No Qualified Written Request
Plaintiffs have not stated a cause of action under RESPA. Plaintiffs claim that
Defendants violated 12 U.S.C. $ 2605(e) because they failed to properly respond to Plaintiffs’
“qualified written requests” for information about their mortgage account. To be a proper
“qualified written request” under $ 2605(e) (QWR), a request must be: (1) be in writing; (2) with
sufficient identification of the borrower’s name and account; (3) relate to the servicing of the
loan; and (4) include a statement of the reasons for bonorver’s belief that his account is in error

or provide sufficient details regarding other information sought. See 12 U.S.C. $ 2605(e).
Plaintiffs allege that their written applications for loan modification, hardship affidavit,

and written submissions of financial information constituted QWRs under 12 U.S.C. $ 2605(e).
(Am. Compl. fl 79) Plaintiffs further allege that, through this documentation, Plaintiffs sought
“information about their eligibility for a loan modification or other methods to minimize their
losses.” (Am. Compl. ’1T 79) Plaintiffs cannot recover for any alleged failure to respond because
their correspondence seeking a loan modification are not QWRs under federal law. Simply put,
seeking a loan modification is not a statement outlining why they thought the account was in
Case 6:10-cv-01 933-JA-DAB Document 19 Filed 02118111 Page 6 of 1 5

error. See 12 U.S.C. $ 2605(e)(1)@)(ii); see also Walker v. Equity I Lenders Group, No.
09cv325 WQH (AJB), 2009 WL 1364430, at *5 (S.D. Cal. May 14,2009).
Plaintiffs claim for violation of RESPA should also be dismissed because Plaintiffs
insufficiently pled actual damages. Alleging a breach of RESPA duties alone is not enough. “A

plaintiff must, at a minimum, allege that the breach resulted in actual damages.” Hutchinson v.

Delaware Sav. Bank FSB, 410 F. Supp. 2d 374,382-83 (D. N.J. 2006); accord Ash v. Newest
Bank, FSB, No. 09-974 FCD, 2010 WL375744, at”*6 (E.D. Cal. Jan.26,2010).

In addition, even if Plaintiffs’ correspondence was QWRs, this cause of action would fail
because the exhibits attached to the complaint illustrate that BAC did in fact respond to all of

Plaintiffs’alleged QWRs. (Am. Compl. Exh. BN).’ Due to the blatant contradiction between the
pleadings and the attached exhibits, Plaintiffs therefore, are judicially estopped from asserting
this claim. See Burnes v. Pemco Aeroplex, Inc.,291F.3d 1282, 1285 (1 lth Cir. 2002) (“Judicial
estoppel is applied to the calculated assertion of divergent sworn positions. The doctrine is
designed to prevent parties from making a mockery of justice by inconsistent pleadings.”) For

all these reasons, Plaintiffs’claim for violation of RESPA must be dismissed.

2. Any RESPA Claim is Time-Barred
Assuming Plaintiffs could maintain action under RESPA, the claim fails as a matter of
law because it is baned by RESPA’s statute of limitations. In the case of a violation of $$ 2607
(pertaining to kickbacks) or 2608 (regarding title services), $ 2614 provides that an action may

be brought within 1 year from the date of the occurrence of the violation. See 72 U.S.C. 5 2614.

Here, the loan closed on February 29,2008, almost three years before this action was filed, and

3 In some instances, it is clear that no further action was taken due to Plaintiffs’ failure to send in the appropriate
documentation. /d
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 7 of 15

therefore Plaintiffs’RESPA claim is time-barred and must be dismissed. (See Am. Compl. Exh.
BD).

C. No Cause of Action for Breach of Contract of Note & Mortgage
Plaintiffs have not stated a cause of action for breach of contract. The validity of a
contract to convey an interest in real estate is governed by the law of the state in which the real
estate lies. Xanadu of Cocoa Beach, Inc. v. Zetley, 822 F.2d 982,985 (l lth Cir. 1987) (citing
Connor v. Elliott, 79 Fla.513, 85 So. 164, 165 (i920)); Kyle v. Kyle, 128 So. 2d 427, 429 (Fla.
2d DCA 1961); In re Estate of Swanson, 397 So. 2d 465,466 (Fla.2d DCA l98l). “Because the
realty lies in Florida, and because Florida is the forum state, all aspects of the contract

-

formation, validity, performance, and remedies to be determined in accordance lvith the
principles of Florida law .” Xanadu of Cocoa Beach, 822 F . 2d at 985 .

To assert a claim for breach of contract, Plaintiffs must allege: “(1) the existence of a
contract, (2) abreach of the contract, and (3) damages resulting from the breach.” Rollins, Inc. v.
Butland,95l So.2d 860, 876 (Fla.2d DCA 2006). Here, ratherthan argue abreach of contract,
Plaintiffs cite to an assortment of HUD regulations, alleging that “Defendant BAC has not
complied with the regulations promulgated by the Secretary of Housing and Urban Development
and as such, foreclosure is not an available remedy at this time.” (Am. Compl. fl87) While
Plaintiffs have completely failed to establish any of the elements of a breach of contract claim
under Florida law, Plaintiffs have also failed to plead sufficient facts and elements necessary to
establish a claim for relief under HUD regulations. Accordingly, Plaintiffs’ claims under Count
II must be dismissed.
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 8 of 15

D. Unreasonable Collection Efforts is Not a Cognizable Claim
Plaintiffs assert that Defendants engaged in “unreasonable collection efforts” that
amounted to “harassment and misinformation” that are “intentional” by “refusing to recognize
payments.” These contentions are enigmatic under the law. First, Plaintiffs have neither asserted
how their count for “unreasonable collection efforts” is a cause of action under any law, nor
established elements of their artificial claim. Moreover, it is completely unclear as to what
alleged “unreasonable collection efibrts” violated federal law. Liken’ise, Plaintiffs have not
attached anything to the Amended Complaint or pointed any of their exhibits to substantiate their
claim. Therefore, Defendants clearly have not received sufficient notice of how it should defend
themselves. Accordingly, it is apparent that Count III for “unreasonable collection efforts”
should be dismissed for failure to state a claim under the law, or in the very least the court should
find that a more definite statement is warranted.

E. Claim for Punitive Damages under Fla. Stat. 9768,72 Should be Striken
Rather than state a claim for intentional misrepresentation as the heading would suggest,
Plaintiffs allege in Count IV of their Amended Complaint that Defendants intentionally failed to
apply payments to their account in violation of Florida Statute, S 768.72. (Am. Compl. tT 100).
Section 768.72 provides that a claim for punitive damages is permitted where there is a
reasonable showing of evidence in the record or proffered by the claimant, which would provide
a reasonable basis for recovery of such damages. See Fla. Stat. $ 768.72(l); Tiger Point Golf
and Country Club v. Hipple,2007 WL 4438923 (Fla. 1st DCA2007). In support of their claim,
Plaintiffs allege that “BAC deliberately and intentionally injured the Plaintiffs by accepting
payments from them but then failed to apply the payments to their account.” (Am. Compl. ‘lll00)
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page g of 15

Again, Plaintiffs’ allegations are mere conclusions and fail to set forth suffrcient facts to justify
punitive damages under g 768.72 or Florida law.

Moreover, prior to including a claim for punitive damages in the Amended Complaint,
Plaintiffs were required obtain leave from the trial court. ^!ee Gtobe Newspaper Co. v. King,658
So. 2d 518 (Fla. 1995); Simeon, Inc., v. Cox,67l So. 2d 158, 160 (Fla. 1996) (the Court held that
the plaintiffs’ failure to obtain leave of the trial court before amending its complaint to add

punitive damages claim warranted dismissal or striking of the claim); see also WF|’V, Itrc. t,.
Hinn,705 So. 2d 1010, 1011 (Fla. 5th DCA 1998) (the Court held it was error for the trial court
to deny the defendant’s motion to strike where the plaintiff failed to follow the procedural
requirements of $ 768.72 in pleading punitive damages). Plaintiffs should not be permitted to
seek punitive damages without first showing the requisite evidence and obtaining this Court’s
permission pursuant to $ 768.72(l). Accordingly, Plaintiffs’ claim for punitive damages should

be stricken.

F.
FDCPA is Inapplicable
Plaintiffs cannot maintain a claim against Defendants under FDCPA. The statute applies
only to debt collectors as defined in the statute and exempts from liability communications from
an original creditor collecting its own debts.
Plaintiffs failed to establish that BAC is a debt collector as defined by the FDCPA. ,See
15 u.s.C. $ 1692a(6)(F);Futterv. Becker & Poliakffi P.A., lg2F. Supp. 2d1367,1366 (M.D.
Fla. 2002). A “‘debt collector’ means any person who uses any instrumentality of interstate

commerce or the mails in any business the principal purpose of which is the collection of debts,
or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C. $ 1692a(6). BAC does not fall under the
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 10 of 15

meaning of “debt collector” as defined in Section 1692a(6)(F) because its principal business is
not the “collection of debts,” but rather mortgage lending and loan servicing.

ln Reese v. JPMorgan chase & co.,686 F.Supp.2d 129t, 1308 (s.D. Fla. 2009), the
court dismissed the FDCPA claim with prejudice as the plaintiff did not establish the defendants
were “‘debt collectors’ as contemplated by the statute which explicitly excludes a consumer’s
creditors, and mortgage servicing companies.” The court explained that “[u]nder the FDCPA,
consumer’s creditors, a mortgage servicing company, or an ensignee of a debt are not considered
‘debt collectors,’ as long as the debt was not in default at the time it was assigned.” Id. at 1307.

Plaintiffs’FDCPA claim is identical to those raised in Reese. BAC is a servicer of the
subject mortgage loan, and therefore, it is not a debt collector within the meaning of FDCPA.
Moreover, BAC could not have been acting as a debt collector with respect to Plaintiffs
because it was collecting its own debt which was not in default at the time the debt was obtained.

More precisely, under Section 1692a(6)(F), a “debt collector” does not include any person
collecting or attempting to collect a debt to the extent such activity: “(ii) concerns a debt which
was originated by such person [or] (iii) concems a debt which was not in default at the time it
was obtained by such person.” Accordingly, under the rationale in Reese, as well as the clear
and express language of 15 U.S.C. $ 1692a(6), Defendants are not a debt collectors as to

Plaintiffs, and the FDCPA claim should be dismissed. Moreover, as Plaintiffs can never allege
that Defendants were debt collectors, the Court should dismiss the claim with prejudice.

G. No Cause of Action under the Federal Trade Commission’s Safeguards Rule
Plaintiffs’ sole argument in this count is that Defendants intentionally lost their financial
documentation for a loan modification in violation of the Safeguards Rule of the Gramm Leach
Bliley Act,16 CFR 314 (the Safeguards Rule). (Am. Compl. fl 108).
Case 6:10-cv-01933-JA-DAB Document 19 Filed02118111 Page 11 of 15

This count contains nothing more than a recitation of background information regarding
the Safeguards Rule and conclusory allegations of “malicious and reckless negligence.” These
types of unsubstantiated allegations are woefully inadequate to state a claim. Robinson v. Jewish
Ctr. Towers, Inc., 993 F. Supp. 1475, 1476 (M.D. Fla. 1998) (“[T]he court will not accept,
without more, conclusory allegations or legal conclusions masquerading as factual
conclusions.”); Cummiltgs v. Palm Beach County,642F. Supp.248, 249-50 (S.D’ Fla’ 1986)
(finding vague and conclusory complaint failed to state afactuai basis fbr claims of racc ancl age
discrimination required to give defendant notice necessary to prepare defense).

Moreover, no private right of action exists for an alleged violation of the Safeguards Rule
of the Gramm-Leach Bliley Act (GLBA). See 15 U.S.C. $ 6805; Dunmire v. Morgan Stanley
DW, lnc.,475 F.3d956,960 (8th Cir. 2007) (“[n]o private right of action exists for an alleged
violation of the GLBA”); Lentz v. Bureau of Med. Econ. (In re Lentz),405 B.R. 893, 899 (Bankr.

N.D. Ohio 2009) (“courts have consistently held there is no private right of action ueated by
Congress in the GLBA”); French v. Am. Gen. Fin. Servs. Qn re French),401 B.R. 295, 310
(Bankr. E.D. Tenn. 2009) (“[by its very terms, the Gramm-Leach-Bliley Act does not provide a
private right of action"). For these reasons, Plaintiff claim under the Safeguards Rule fails as a
matter of law and should be dismissed.

H. Failure to State a Claim under RICO
The Plaintiffs casually allege "racketeering" against Defendants. Assuming this is an
attempt to allege a claim under federal Racketeering, Influenced, and Corrupt Otganizations Act
(RICO), 18 U.S.C. $ 1961 et seq., they fail to do so. Plaintiffs'general allegations also reveal
that they lack standing to bring this claim.

l1
Case 6:1 0-cv-01933-JA-DAB Document 19 Filed 02118111 Page 12 of 15

1. No Standing
The standing provision of RICO provides that "[a]ny person injured in his business or
property by reason of a violation of section 1962 of this chapter may sue. .” l8 U.S.C. $
l96a@). The Eleventh Circuit has interpreted that provision “to include a requirement that the
party’s injuries be the direct result of the alleged racketeering activity. Therefore, a plaintiff has
RICO standing only if his injuries were proximately caused by the RICO violation.” Bivens,740
F.3d at 906; see Pelletier v. Zweifel, 921 F.2d 1465, 1499 (i lth Cir. 1991) (holding lirat plaintilf
has RICO standing only if “his injury flowed directly from the commission of the predicate

acts”).

Despite broad accusations of “racketeering,” Plaintiffs lack standing because they do not
argue that the alleged RICO violation was the “proximate” cause of their injury-there is no
“‘direct relation between the injury asserted and the injurious conduct alleged.”‘ Bivens,140 F.3d
at 906 (quoting Holmes v. Securities Investor Protection Corp., 112 S. Ct. 1311, 1318-19

(reez)).

2. No Cognizable Claim Under RICO
Even assuming that Plaintiffs have standing, Plaintiffs’ RICO count should be disrnissed
for failure to assert acognizable claim. Pursuant to 18 U.S.C. $ 1962(c), it is illegal “for any
person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in thc
conduct of such enterprise’s affairs through a pattern of racketeering activity. . . .” 18 U.S.C. $
1962(c). Thus, in order to establish a federal civil RICO violation under $ 1962(c), the plaintiffs
“must satisfy four elements of proof: ‘(1) conduct (2) of an enterprise (3) through a pattern (a) of

I2
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 13 of 15

racketeering activity.”‘ Jones v. Childers,lS F. 3d 899, 910 (llth Cir. 1994) (quoting Sedima,

S.P.R.L. v. Imrex Co., 105 S. Ct.3275,3285 (1985)).
In addition, a “pattern of racketeering activity” requires at least two acts of racketeering
activity occurring within a prescribed time period. Cox v. Adm’r U.S. Steel & Carnegie, 17 F. 3d
1,386, 1397 (1 lth Cir. 1994), modified on other grounds by 30 F. 3d 1347 (l lth Cir. 1994); see
also Maiz v. Virani 253 F. d 64.1,671 (llth Cir .2001) (alterations omitted) (a pattern of
racketeering activity is shor.vn when a racketeer commits at least two distinct but related
predicate acts).

Plaintiffs fail to sufficiently allege any of the elements of a RICO violation. Plaintiffs
have neither alleged or provided any factual allegations to establish that Defendants have
engaged in a pattern of criminal activity, nor pled any facts to establish the existence of an
enterprise. Instead, Plaintiffs argument merely consist of a series of conclusory claims, alleging
“a systematic pattern of deception, fraud and terror,” and comparing Bank of America to a
“criminal organization.” (Am. Compl. fl 114) Moreover, far short of describing any specific
predicate acts with detail, Plaintiffs’ allegation rests on their bare assertion that they experienced
“at least two (2) of thirty-five (35)” alleged RICO crimes. (Am. Compl. fl 121). This is
insufficient to state a claim for violation of the RICO statute. Therefore, Plaintiffs’RICO count
should be disrnissed as well.

-V. CONCLUSION-

Plaintiffs’ Amended Complaint is completely devoid of facts establishing the elements of
their claims, precluding an adequate response. Nowhere do the Defendants deny that they
willingly entered into the mortgage loan, or that the mortgage loan is invalid. Defendants should
not be permitted to avoid their obligations under the loan documents simply because they claim

l3
Case 6:10-cv-01933-JA-DAB Document 19 Filed 02118111 Page 14 of 15

that Defendants prolonged the loan modification process. Accordingly, Defendants respectfully

request that the Amended Complaint be dismissed with prejudice.

Dated: February 18, 20ll

AKERMAN SENTERFITT

/s/ William P. Gray
William P. Gray, Esq.
Fla. Bar No.: 0983993
bil l.gray@akerrnan. corn
.Iessica L. Gavrich, Esq.
Fla. Bar No.: 52678
Post Office Box 231
420 South Orange Avenue, Ste. 1200
Orlando, FL 32802-0231
Phone: (407) 423-4000
Fax: (407) 843-6610

and

William P. Heller
Fla. Bar No. 987263
w i lliam.heller@akerm an. com
Las Olas Centre II
350 East Las Olas Blvd., Ste 1600
Fort Lauderdale, FL 33301
Telephone: 954-7 59 -8945
Fax: 954-463-2224

Counselfor BAC Home Loans Servicing, LP
& Bankof America, N.A.

t4

 

11/08/11 Response in Opposition to Defendant Motion:  Click here

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