Khast v. Washington Mutual, JPMorgan Chase, and CRC, Case No. CV10-2168 IEG
Irma E. Gonzalez, Chief Judge, U.S. District Court, Southern District of California
Kaveh Khast in pro se
A loan mod nightmare where Khast did everything right except laugh out loud when WaMu told him that he must stop making his mortgage payments for 90 days in order to qualify for a loan modification. As Khast leaped through the constantly shifting hoops tossed in the air, first by WaMu, then by Chase, filing no less than four applications, Chase issued a Notice of Trustee's Sale.
Khast filed a pro se complaint in federal court which included a request for a Temporary Restraining Order. The District Court granted a TRO to stop the sale. The court wrote that the conduct by WAMU appeared to be "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers," and thus satisfied the "unfair" prong of California's Unfair Competition Law, Cal. Bus.&Prof.Code §17200. Plaintiff stated that he possessed documents which supported his contention that Defendant WAMU instructed him to purposefully enter into default and assured him that, if he did so, WAMU would restructure his loan. Accordingly, Plaintiff demonstrated that he was likely to succeed on the merits of his claim.
The court also relied upon the doctrine of promissory estoppel, whereby a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise. He who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.
At a later hearing, the court denied a preliminary injunction when Chase argued that WaMu's immoral conduct was a liability that was not assumed by Chase under the Purchase and Assumption Agreement dated September 25, 2008. The court's TRO on October 26 nevertheless provides borrowers with ammunition to raise claims of unfair competition and promissory estoppel.
Plaintiff's claims under TILA were dismissed because the 3-year Statute of Limitations had passed and Plaintiff did not allege facts in support of suspending the limitations period under the doctrine of equitable tolling. The Fair Debt Collections Practices Act did not apply because mortgagees, servicers, and trustees are not "debt collectors" subject to FDCPA. The court declined to exercise supplemental jurisdiction under 28 U.S.C. Sec. 1367 over Plaintiff's state law claims.
(personal note, mortgagees, servicers and trustees are not "debt collectors" however....what about attorney's? You know the ones suing me as mortgagor....are they subject to FDCPA? This is interesting...very very interesting)
Ansanelli v. JPMorgan Chase, 2011 WL 1134451, Case No. CV10-03892 (WHA)
William Alsup, District Judge, U.S. District Court, Northern District of California
Cotchett Pitre & McCarthy, Burlingame, CA, attorneys for Angela Ansanelli
Chase took over servicing two Ansanelli loans after it purchased WaMu's assets. Plaintiffs tried to negotiate a loan modification and landed in loan mod hell. Chase moved to dismiss the SAC, and plaintiff's lawyers prevailed on almost every count. The court refused to dismiss causes of action for breach of contract, fraud and deceit, negligent misrepresentation, RESPA, and unfair business practices (Cal. B&P Code sec. 17200).
Additional motions were filed, plaintiffs filed a Fourth Amended Complaint on May 12, 2011, and defendants filed an Answer. At a mediation session on June 22, 2011, the case was settled.
- Second Amended Complaint 2/3/2011
- Order Denying Motion to Dismiss 3/28/2011
- Fourth Amended Complaint 5/12/2011
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