CLASS ACTION AGAINST BANK OF AMERICA PROCEEDS

Class Action Lawsuit to Proceed Against Bank of America and ReconTrust Company

by Morgan Skinner, KCSG News

Published - 10/04/11 - 01:31 PM

(Salt Lake City, UT) - US District Judge Dee Benson ruled Tuesday that a class action lawsuit can proceed against ReconTrust and Bank of America (NYSE: "BAC").

The class action lawsuit filed by attorneys John Christian Barlow and E. Craig Smay on November 5, 2010(Case No. 10-1099) against ReconTrust and Bank of America (NYSE: "BAC"), Mortgage Electronic Registration Systems ("MERS"), Countrywide Home Loans, HSBC Bank (NYSE: "HSBC"), Wells Fargo Bank (NYSE: "WFC"), U.S. Bank (NYSE: "USB"), Bank of New York/Mellon (NYSE: "BK"), KeyBank (NYSE: "KEY") alleges violations of the, Fair Debt Collections Practices Act, Utah Pattern of Unlawful Activity Act (FDCPA), Unlawful Foreclosures, and Intentional Infliction of Emotional Distress.

Judge Benson said that after considering the memoranda and the oral arguments, the Court finds the Plaintiffs failed to show that MERS, HSBC, Wells Fargo, and Bank of New York Mellon were involved in the conduct giving rise to any claims.

ReconTrust, Bank of America, N.A., and BAC Home Loans Servicing, LP, the Court found sufficient allegations against them to survive a motion to dismiss.

The judge ruled that ReconTrust's contention that it could foreclose on properties located in Utah pursuant to 12 U.S.C. § 92a which allows it to foreclose as a trustee in the State of Texas does not apply in Utah.

The Court said it agrees with the reasoning applied in Cox v. ReconTrust Company, N.A., 2011 WL 835893 (March 3, 2011 D. Utah) in which the Court said:

"Under a straight forward reading of§ 92a(b), this Court must look to Utah law in its analysis of whether ReconTrust's activities in Utah exceed ReconTrust's trustee powers. The powers granted to ReconTrust under federal law in this case are limited by the powers granted by Utah state law to ReconTrust's competitors. Accordingly, the extent of ReconTrust's federal powers must be determined by reference to the laws of Utah, not by reference to the laws of some other state. Under Utah law, the power to conduct a non-judicial foreclosure is limited to attorneys and title companies. The scope of the powers granted by federal law is limited to the same power Utah statute confers on ReconTrust's Utah competitors. The federal issue, therefore, is whether ReconTrust is a competitor of Utah attorneys or title insurance companies."

Because the parties did not brief the issue of whether ReconTrust competes with Utah attorneys or title insurance companies, the Court did not rule on that matter.

Barlow told KCSG News that ReconTrust, the foreclosure arm of the Bank of America has performed thousands of illegal home foreclosures in Utah in violation of State laws already upheld by the 10th Circuit Court case, Shurtleff v. Kleinsmith in which Utah Code Sections 51-1-21 and 57-1-12 were found to be constitutional. Until recently, Bank of America and ReconTrust have been successful at getting federal judges to grant immunity to their foreclosure activity claiming immunity from State law under the National Bank Act.

The attorneys for the Plaintiffs plan to amend their class action case showing unlawful foreclosures were performed by ReconTrust as a trustee for Mortgage Electronic Registration Systems ("MERS"), Countrywide Home Loans, HSBC Bank (NYSE: "HSBC"), Wells Fargo Bank (NYSE: "WFC"), U.S. Bank (NYSE: "USB"), Bank of New York/Mellon (NYSE: "BK") and KeyBank (NYSE: "KEY").

Barlow said they will vigorously prosecute the case to the fullest extent of the law in behalf of Utah homeowners who have been unlawfully deprived of their rights and lost their homes in unlawful foreclosure.

He said that homeowners who have lost their home through an illegal foreclosure have seven-years under Utah law to seek redress.

Source: http://www.kcsg.com/view/full_story/15893293/article-Class-Action-Lawsuit-to-Proceed-Against-Bank-of-America-and-ReconTrust-Company