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July 11th, 2011
Written by: Isabel Santamaria
For over a year now, I have been very aware of Bank of America’s practices and I now know how they relate to RICO. I have researched this for many months now. I became aware of it when a fellow blogger asked: “Why isn’t Bank of America being charged under RICO, they are clearly racketeering?” This opened my eyes and answered many of my questions regarding their practices. Of course, to better understand this topic, first we must know what racketeering is. That said, what is racketeering? Racketeering is the act of operating an “illegal business” or “scheme” in order to make a profit, perpetrated by a structured group. It is a broad category of criminal acts. Racketeering is closely associated with organized crime, since both are conducted by groups.
Racketeering encompasses many criminal acts. It includes theft, embezzlement and fraud against businesses or individuals. Governments can also be victimized by racketeering; examples include counterfeiting money and trading in untaxed alcohol. Racketeering can also take the form of providing illegal services, such as prostitution or drug trafficking. Racketeering also takes place among legitimate businesses or labor unions, where it is sometimes referred to as white-collar crimes. Examples include extortion and money laundering.
Under the Racketeer Influenced and Corrupt Organizations Act (commonly referred to as the RICO Act or RICO) there is extensive criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering, and it allows for the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them, closing a perceived loophole that allowed someone who told a man to, for example, murder, to be exempt from the trial because they didn’t actually do it. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count. 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 triple damages.
What are the 35 crimes under RICO? Of the 35 crimes that form the body of RICO law, eight are state crimes and 27 are federal. Bribery, gambling, murder, arson, extortion, prostitution, counterfeiting, drug dealing, obstruction of justice, money laundering, acts of terrorism and kidnapping are among the 35 crimes. It also is possible to prosecute white-collar crimes under RICO law. Embezzlement and obstruction of justice appear on the list, as do mail fraud, wire fraud, bankruptcy and securities fraud and many others.
In order for a business to be found guilty of racketeering activity there must be a “pattern” of racketeering activity and requires at least two acts of racketeering activity, one of which occurred after the effective date of the chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity. The U.S. Supreme Court has instructed federal courts to follow the continuity-plus-relationship test in order to determine whether the facts of a specific case give rise to an established pattern. Predicate acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” (H.J. Inc. v. Northwestern Bell Telephone Co.).
Now that we understand a little more about racketeering and the crimes that define it, let’s see how Bank of America and other banking and lending giants can be defined as a “criminal organization” for committing at least two acts of racketeering activities. Of course, I will not talk about only two crimes that they have “allegedly” committed but in fact much more. Here they go:
Mail fraud- an offense under United States federal law, in which fraudulent misrepresentations and schemes to defraud which use the United States Mail to further that fraudulent conduct and can be prosecuted as “mail fraud.” How is Bank of America allegedly guilty of “mail fraud”? What is a misrepresentation or fraud? A false statement stated as a fact. http://en.wikipedia.org/wiki/Fraud. Bank of America sends via US mail misrepresentations. How? Well, many homeowners are advised in the mail false statements regarding their loan modifications. They are told- 1) their paperwork was lost or never received, 2) they do not qualify due to income, 3) their documents were not received on time, 4) their trial modifications payments were not received on time and therefore they cannot qualify for a permanent loan modification, and many other misrepresentations and excuses. Homeowners are also victims of “loan servicing fraud” and the misrepresentations of such are sent by Bank of America via US Mail.
Wire Fraud- is any criminally fraudulent activity that has been determined to have involved electronic communications of any kind, at any phase of the event. The alleged misrepresentation to support a conviction under 18 U.S.C. § 1343 must be a material misrepresentation; a misrepresentation is material if it is capable of influencing, or has a “natural tendency” of influencing.
To commit wire fraud, one must (1) devise, or intend to devise, a scheme or artifice to defraud another person on the basis of a material representation, and (2) do it with the intent to defraud, and (3) do it through the use of interstate wire facilities (i.e. telecommunications of any kind). How is Bank of America allegedly committing wire fraud? During recent months it has become very clear that Bank of America and others have participated in submitting fraudulent foreclosure documents and mortgage assignment via wire or electronically. This is wire fraud! This has been a well-planned scheme. These are not mistakes of any kind. Many are left homeless because of this fraudulent activity. There might be many more alleged misrepresentations submitted via wire by Bank of America for other purposes as well.
The mail and wire fraud statutes are very, very broad. Before RICO, the mail and wire fraud statutes could be enforced only by U.S. Attorneys, who didn’t have time to prosecute everyone engaged in conduct that potentially violated the statutes.
When Congress included mail and wire fraud as predicate acts under RICO, however, it allowed every attorney in the country to use the mail and wire fraud statutes to the advantage of their clients. Many, many courts have noted that RICO’s inclusion of mail and wire fraud basically federalized state common law claims of fraud in the business context i.e.,: every business uses the mails or wires, so if a business engages in fraud, it has arguably and automatically violated the mail and wire fraud statutes as well.
Embezzlement- the act of dishonestly appropriating or secreting assets by one or more individuals to whom such assets have been entrusted. Embezzlement may range from the very minor in nature, involving only small amounts, to the immense, involving large sums and sophisticated schemes. More often than not, embezzlement is performed in a manner that is premeditated, systematic and/or methodical, with the explicit intent to conceal the activities from other individuals, usually because it is being done without their knowledge or consent. Embezzlement statutes do not limit the scope of the crime to conversions of personal property. Statutes generally include conversion of tangible personal property, intangible personal property and choses in action.
How is Bank of America allegedly committing embezzlement? Many Bank of America employees have been found guilty of embezzling money from customer’s bank accounts. Beyond that, many homeowners have complained that Bank of America has made money “disappear” from their escrow accounts and mortgage payment account.
Theft- In criminal law, theft is the illegal taking of another person’s property without that person’s freely-given consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, fraud and sometimes criminal conversion. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. The actus reus of theft is usually defined as an unauthorized taking, keeping or using of another’s property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.
How is Bank of America allegedly guilty of theft? When they take someone’s property or home “illegally” with fraudulent documents. Sometimes Bank of America does not even own the Note to the property and they kick out the homeowners into the street. Bank of America has also foreclosed or stolen homes that do not even belong to them on many occasions. Most recently, a Florida couple found out the hard way: Do not do business with Bank of America! The Naples, Florida couple purchased a home in cash from Bank of America and did not have a mortgage with them or anyone else. Nevertheless, Bank of America foreclosed on them. This is not the only time this has happened. Many are actually afraid to buy any home related to Bank of America for the fear of getting burned. We can spend hours speaking about Bank of America’s alleged antics which involves theft. All you have to do is scour the internet and thousands of complaints of frustrated homeowners or customers will become available. The vast majority are believed to be legitimate complaints. A “pattern” is clearly evident.
Securities Fraud- Securities fraud, also known as stock fraud and investment fraud, is a practice that induces investors to make purchase or sale decisions on the basis of false information, frequently resulting in losses, in violation of the securities laws. Securities fraud includes outright theft from investors and misstatements on a public company’s financial reports. The term also encompasses a wide range of other actions, including insider trading, front running and other illegal acts on the trading floor of a stock or commodity exchange.
How is this allegedly applicable to Bank of America? I am sure many of you already know about Bank of America’s investors squirming in their seats regarding this matter. Investors want answers and want them now because they feel deceived. In 2009, Bank of America was flooded with lawsuits alleging securities fraud. Bank of America CEO at the time, Ken Lewis, became so overwhelmed that he resigned. Speculation still exists as to why this all happened. Currently, many have pulled out and want nothing to do with Bank of America’s Circus of events. Some investors have already accused Bank of America of Securities Fraud. The lawsuit was filed in New York in January of this year. The plaintiffs wanted compensatory and punitive damages. The case is Dexia Holdings Inc. et al v. Countrywide Financial Corp. et al, New York State Supreme Court, New York County, No. 650185/2011. In due time, this securities fraud will become more evident as investigations continue.
UPDATE: Before completing this article, it just so happened that Bank of America and its Countrywide unit will pay $8.5 billion to settle claims that the lenders sold poor-quality mortgage-backed securities that went sour when the housing market collapsed. Yes, this is securities fraud that they have obviously admitted to. Sometimes I wonder if I have a crystal ball in regards to Bank of America because it has become more and more evident over time that Bank of America has repeatedly violated RICO laws as I have said so many times but sadly no one is going to prison.
Forgery- Forgery, which is considered a white-collar crime, is a non-violent crime committed for financial gain or deceit. It is similar to fraud, which is also a crime of deceit. For forgery to be a criminal act, the person must have committed forgery with the intent to deceive or defraud another. Forgery is considered a felony crime by the federal government and all fifty states. A person convicted of forgery can face heavy penalties including incarceration, heavy fines, probation, community service, the loss of some civil privileges and more. The Modern Penal Code (MPC sec. 224.1) states that a person is guilty of forgery if: a) an actor or person alters any writing of any person, b) makes, completes, executes, authenticates, issues, or transfers any writing so that it purports to be an act of another who did not authorize the act or to have been at the time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or c) utters any writing which he knows to be forged. Forgery can also involve significant material alteration of a genuine document. This can include forgery involving false signatures or improperly filling out forms. A document is considered forgery if it looks authentic enough to deceive a reasonable person. It must also have some legal significance in order to be considered unlawful. Forgery also includes the possession of any forged document or forgery device with knowledge of its purpose.
Therefore, how is Bank of America allegedly responsible for committing forgery? This is not a shocker, especially with all of the recent developments. On April 3, 2011, CBS’ 60 MINUTES aired a segment called “The Next Housing Shock” showing massive fraud by banks and mortgage-backed trusts in foreclosures. The segment focused on one particular document mill, Docx, LLC, a company that works for over 51 banks. One former employee confessed to forging 4,000 documents each day! These “forged” documents would then be notarized as a legitimate document. Bank of America has consistently used Docx LLC for their “fraud-closure” practices. As with the robo-signers, forged signatures have resulted in the dismissal of foreclosure lawsuits in courts across the country.
Bank of America has been committing this crime for years and have continued to do so with complete disregard for the law because of their “too big to fail” attitude. In addition to this ongoing horror story, there are actually “machines” that can facilitate this type of fraud by scanning any signature and re-signing it exactly as it is on any other document. http://stopforeclosurefraud.com/2010/11/17/signature-scanner-forgetaboutit-meet-a-unique-robo-signer/. Yes, it may look exactly like “your” signature but did “you” actually sign this document? Fraudulent practices are widespread in the mortgage industry. With technology like this available to these large banks, nothing is sacred anymore, not even our signatures. A machine can now sign your life away.
Counterfeiting- A counterfeit is an imitation, usually one that is made with the intent of fraudulently passing it off as genuine. Counterfeit products are often produced with the intent to take advantage of the superior value of the imitated product. The word counterfeit frequently describes both the forgeries of currency and documents, as well as the imitations of works of art, clothing, software, pharmaceuticals, watches, electronics and company logos and brands.
Forgery is the process of making or adapting documents with the intention to deceive. It is a form of fraud, and is often a key technique in the execution of identity theft. Uttering and publishing is a term in United States law for the forgery of non-official documents, such as a trucking company’s time and weight logs.
Questioned document examination is a scientific process for investigating many aspects of various documents, and is often used to examine the provenance and verity of a suspected forgery. Security printing is a printing industry specialty, focused on creating illegal documents which are difficult to forge.
Surprise, surprise……. Forgery of documents is considered as counterfeiting? Well, we all know that Bank of America has forged many documents pertaining to Assignments of Mortgage, Notes and other documents related to the origination or transfer of a loan that they service or own. They have fabricated numerous documents and pass them off as authentic in order to illegally foreclose on homes. These documents are filed in court with the knowledge of Bank of America and their attorneys. Bank of America fabricates and approves the document and then gives orders to their attorneys so that they can proceed with the foreclosure process.
Extortion- In a court of law, extortion refers to the act of obtaining property, services or money from a person or company through intimidation. Mostly regarded as a characteristic of large organized groups of crime, extortion is both a large and small scale crime.
On many levels, gaining a possession by threatening an individual through an abuse of power is often referred to as blackmail as well. In addition, extortion is similar to robbery. The main difference between extortion and robbery is that with extortion, there needs to be a verbal or written threat, whereas robbery just requires theft.
Extortion can be a Federal Crime. To be charged with extortion, you don’t necessarily have to achieve the goods or money that you set out to take. Knowingly and willingly sending a threat, which refers to the requirement of payments, is enough to be charged with the offense. For instance, if you send a letter threatening to expose a company unless it pays you, the letter never actually has to reach the intended recipient in order for it to be considered extortion.
If you are charged with extortion, it can be considered a federal crime, which means the possibility of having to serve jail time. And, remember, even if you didn’t physically harm anyone or gain any money or possessions, but rather, just made the threat, you can still be charged. If the latter sounds like a scenario that you may be facing, it is important to call a lawyer. Just because you didn’t go through with the theft doesn’t mean that you can’t still be convicted.
For example, can sending a homeowner a “Letter of Intent to Accelerate” which often demands money that is sometimes really not owed and threatens with foreclosure or illegally obtaining such property if that money is not paid in full an act of extortion? I will let you decide.
Obstruction of Justice- The crime of obstruction of justice, in United States jurisdictions, refers to the crime of “interfering” with the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials. Common law jurisdictions other than the United States tend to use the wider offense of Perverting the course of justice.
Generally, obstruction charges are laid when it is discovered that a person questioned in an investigation, other than a suspect, has lied to the investigating officers.
The Attorney General, Congress, Senate are “government officials”. The Office of the Comptroller of the Currency (OCC) is a “regulatory agency” and HUD is also a “federal agency”. These government officials, regulatory and federal agencies have initiated investigations against Bank of America. What does Bank of America do? Well for one thing, they provide “false” information to these government officials and regulatory agencies such as the OCC. For example, in a prepared Congressional testimony, Bank of America’s top mortgage official, Barbara Desoer, says that it’s Wall Street investors, not the bank, that are making it hard to help homeowners. “Bank of America is constrained by our duties to investors,” she says . “Many investors limit Bank of America’s discretion to take certain actions.” This has been proven to be false. The investors do not decide on loan modifications. Nevertheless, Mrs. Desoer did indeed say this statement under “oath”. The full statement is available here: http://mediaroom.bankofamerica.com/phoenix.zhtml?c=234503&p=RssLanding&cat=news&id=1497054.
In addition, Bank of America’s executives and customer advocates provide false and misleading information to the OCC when an investigation is being reviewed on behalf of a homeowner or what I like to call “victim”. It is heart-wrenching that a homeowner has to have their complaint with the OCC dismissed because Bank of America denies all the allegations brought upon by the homeowner. Most of these allegations brought by the homeowner or victim are true and Bank of America denies, denies, denies. I know these facts from my own personal experience. This is a federal crime, no doubt about it. No sugar-coating it.
Most recently, Bank of America significantly “hindered” investigations by HUD who was reviewing Bank of America’s foreclosure practices. Did Bank of America cooperate with HUD? The answer is clearly “no”. As per Departmental Auditor William Nixon, Bank of America threw up “roadblocks” to the investigation and “prevented” his team from conducting a “walkthrough” of the bank’s document unit. Nixon also states that the bank withheld key documents and data, prevented investigators from interviewing employees or asking them certain questions, and was “slow” to provide information. When I think of Bank of America’s “slow” response it reminds me of how “slow” they are to offer help to homeowners who request a loan modification among other things but are very “quick” to restart foreclosures after supposedly investigating thousands of foreclosure documents after they were forced to stall foreclosures in October 2010. Think about it, it only took Bank of America “two weeks” to conduct their “internal” investigation of thousands of documents and reinitiated foreclosures immediately after. However, it takes “months” and in some cases “years” for Bank of America to conduct a loan modification review. This is truly deceitful.
Nonetheless, their “slow” responses and malicious behavior has eventually backfired. Mr. William Nixon has also said that when interviews were permitted, the presence or involvement of the bank’s attorneys limited the effectiveness of those interviews. According to court documents, Bank of America also failed to fully comply with subpoenas issued by Nixon’s team. HUD’s internal watchdog issued two subpoenas requesting documents and information but Bank of America provided incomplete, conflicting information in return. In some cases, Bank of America provided “excerpts” of documents rather than the complete record. Bank of America only provided one third of what was requested. Not a surprise, they do it all the time.
This reminds me of my case. Bank of America only provided “some” of the documents that my attorneys at the time requested regarding the origination of my loan and stated that my attorney’s request “goes beyond that which is available through a Qualified Written Request made under 12 U.S.C. §2605(B)”. Yes, Bank of America “refused” to provide all of the documents of my loan. To this very day I have not seen the Assignment of Mortgage with Bank of America in which the transfer took place almost 2 years ago and until this very day it has never been recorded with the Clerk of Courts. I have no idea who signed my mortgage assignment. For all I know it can be “Linda Green” or any of the fake characters signing mortgage assignments and foreclosure documents. This is a clear indication of fraudulent documents, if you ask me. Who knows, they might be fabricating a new Assignment of Mortgage for me at this very moment.
Due to Bank of America’s “obstruction of justice”, a lawsuit was filed against them by the State of Nevada (case no. CV2010-033580). All of this evidence and much more is a violation of CHAPTER 73—OBSTRUCTION OF JUSTICE, § 1510 Obstruction of criminal investigations, § 1517 Obstructing examination of financial institution, § 1519 Destruction, alteration, or falsification of records in Federal investigations and bankruptcy, § 1505 Obstruction of proceedings before departments, agencies, and committees. Any one of these can apply at any given time (Wikipedia). Again, “Obstruction of Justice” is a RICO crime along with the other crimes that I have listed here.
My husband and I have personally filed a lawsuit against Bank of America (BAC) in December 2010. The case is Abdiel Echeverria & Isabel Santamaria vs BAC Home Loans Servicing, L.P. and Bank of America, N.A., case no 6:10-cv-01933-JA-DAB. One of the counts includes, you guessed it, RICO. Bank of America’s premature and unnecessary threats, fraud, harassment, and deceit has severely affected me emotionally and physically. My family is also greatly affected. All I do is eat, breathe and think about Bank of America and what they have intentionally done to me and my family. I find it comforting to “write” about my experience to help others and my psychologist says that it is good therapy for me to put it on paper. However, I find it hard to “speak” of my experience with Bank of America and become very agitated. I now know what it is to be suicidal, something that I never thought I would experience. I now know what it is to develop Fibromyalgia due to the extreme emotional stress that I was subjected to by Bank of America. I also know that many others have been seriously affected by them as well.
I hope that this article can help many Bank of America victims better understand the true severity of Bank of America’s alleged “illegal” actions and that they should be held accountable under RICO. Hopefully, more of these attorneys and “foreclosure mills” who are hired by Bank of America and other fraudulent banks can also be held accountable for filing these illegal documents through our court systems and therefore causing many families to become homeless. Remember, these acts are “widespread” and are not rare occurrences which would further confirm that Bank of America is a racketeering enterprise. Every Bank of America “victim” will agree that they have experience at least two of these offenses in Bank of America’s mortgage practices. It is our obligation as individuals to fight back when a crime is committed against us and Bank of America has allegedly committed many crimes against humanity and they need to be stopped before further lives are ruined.
Some legal information provided in this article can be found in:
Written by: Isabel Santamaria (Isabelemail@example.com)
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