IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

ABDIEL ECHEVERRIA and ISABEL SANTAMARIA Plaintiffs,

v.

Case No. 6:10-cv-01933-JA-DAB

BAC HOME LOANS SERVICING, LP and BANK OF AMERICA, N.A., Defendants,

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS SECOND AMENDED VERIFIED COMPLAINT COMES NOW Plaintiffs, pro se, and by and through the undersigned counsel, and respectfully offer the following in response to the Defendants Motion to Dismiss, and further state as follows: I. INTRODUCTION Defendants Motion to Dismiss Plaintiffs Second Amended Verified Complaint advances numerous arguments, none of which meets the legal standard required to succeed on a motion to dismiss. The Defendant argues that Plaintiff s filed their Second Amended Verified Complaint in a purported attempt to remedy the shortcomings identified in Defendants initial Motion to Dismiss. Defendant fails to understand that these pleadings were filed by pro se

litigants without counsel. In addition, Defendants counsel alleges that the Plaintiffs filed their Amended Complaints incomplete (see footnote of Doc. 33, Defendants Motion to Dismiss, page 2). Defendant fails to state what was incomplete or missing from the complaints. The Plaintiffs have submitted via Priority Mail the Amended Complaints in its entirety and have nothing to omit or hide from the Defendants. Furthermore, Defendants claim that the Plaintiffs Second Amended Verified Complaint once again completely failed to state a claim under any legal theory. The Plaintiffs however, have submitted detailed accounts along with the related exhibits to substantiate a legal claim. Pleadings in this case were filed by Plaintiff in Propria Persona (Pro Se), wherein pleadings are to be considered without regard to technicalities. Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995) also See In Re: Hall v. Bellmon 935 F.2d 1106 (10th Cir. 1991)." II. BACKGROUND Defendant BAC is a wholly owned subsidiary of the well-known banking Institution, Bank of America. Defendant BAC performs servicing of home loans for various parties that own the right to receive payments on the loan (holders). These holders are often investors, securitized trusts, or banking institutions that do not have the infrastructure to collect payments from borrowers or, in their business judgment, have found it preferable to use a servicer, such as Defendant BAC. The exact type of servicing that a servicer performs is often controlled by private contract or government regulation, depending on the type of loan. However, servicing generally includes such functions as collecting payments, communicating with borrowers on the holders behalf, and in some cases, administering a foreclosure. On February 29, 2008, Plaintiff, Abdiel Echeverria along with his spouse, Plaintiff Isabel Santamaria, acquired a federally-insured home loan in the amount of $144,079.00 from Taylor, Bean & Whitaker which included cash from Borrowers (Plaintiffs) of $23,998.24 for the total purchase price of $167,000.00 for home located on 499 Cellini Ave NE, Palm Bay, Florida 32907. The Mortgage was registered with MERS (Mortgage Electronic Registration System).

In August 2009, Defendant BAC (Bank of America) acquired the Plaintiffs Mortgage from Taylor, Bean & Whitaker. III. The Legal Standard for a Motion to Dismiss There is legal sufficiency to show that Plaintiffs are entitled to relief under their Complaint. It is long settled that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitled them to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed. 2d 80 (1957) also Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. In applying the Conley standard, the Court will "accept the truth of the well-pleaded factual allegations of the Complaint." In Puckett v. Cox, it was held that a pro-se pleading requires less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA). The allegations of the claim must be taken as true and must be read to include any theory on which the plaintiff may recover. See Linder v. Portocarrero, 963 F.2d 332, 334-36 (11th Cir. 1992) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967)). The issue for consideration on a motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986). Motions to dismiss for failure to state a claim are granted sparingly and with caution in order to make certain that plaintiff is not improperly denied a right to have his claim adjudicated . . . Agora, Inc. v. Axxess, Inc., 90 F.Supp. 2d 697, 699 (D.Md. 2000) (quoting 5A Charles A. Wright & Arthur R. Miller, FED. PRACTICE & PROCEDURE, Civil 2d 1349 at 192-93 (1990)). If a defect can be cured by amendment, a leave to amend should be freely granted. Forman v. Davis, 371 U.S. 178, 182 (1962); Ferrell Law, P.A. v. Crescent Miami Center, LLP, 313 Fed. Appx. 182, 186 (11th Cir. 2008); Fed. R. Civ. P. 15(a)(2). Judge Corrigan, in the Middle District of Florida, wrote: Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Erickson v. Pardus,___ U.S. ___, ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Specific facts are not necessary; the statement need only give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests. Id. (quoting Bell Atlantic Corp. v. Twombly), 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Id. at 1964, 1974. (Bassler v. George Weston Bakeries Distribution, Inc., 2008 WL 4724434 *1 (M.D. Fla. October 24, 2008) In Alphamed Pharmaceuticals Corp., v. Arriva Pharmaceuticals, Inc., 391 F.Supp. 2d 1148 (S.D. Fla. 2005), Judge Altonaga set forth the standard that must be applied to succeed on a motion to dismiss: For purposes of a motion to dismiss, the court must accept the allegations of the complaint as true. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc). Moreover, the complaint must be viewed in the light most favorable to the Plaintiff. St. Josephs Hosp., Inc. v. Hosp. Corp. of America, 795 F. 2d 948, 953 (11th Cir. 1986). To warrant a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Blackstone v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. In applying the Conley standard, it was stated that the Court will "accept the truth of the well-pleaded factual allegations of the Complaint." Applying these standards, the Defendants Motion to Dismiss should be denied. 1. Plaintiffs Complaint States a Cause of Action for RESPA In Defendants Motion to Dismiss Second Amended Verified Complaint, it asserts that Plaintiffs must do more than merely state legal conclusions and they are required to allege some specific factual basis for those conclusions or face dismissal of their claims. Plaintiffs provided letters (QWRs) that expressed their concerns which included their names, loan number and other information required under RESPA. Plaintiff also acquired the assistance of an Attorney to assist them with many issues including QWRs that were sent to the Defendant. Plaintiffs Attorney forewarned the Defendant BAC of its practices as demonstrated by the Demand

Letter sent to BACs Craig Jernigan in the Office of the President which was submitted as evidence with the Second Amended Verified Complaint. Plaintiff also rightfully alleges that the Defendant did not advise them within the required time frame that their mortgage was transferred to the Defendant in violation of 12 U.S.C. 2605(c). (2nd Amend. Ver. Comp. 21, 47, 78). Plaintiffs also submitted a QWR to the Defendant on July 10, 2010 (2nd Amend. Ver. Comp. 58) in regards to their Promissory Note. Defendant did not provide the required document as requested by the Plaintiffs until more than 90 days later in violation of 12 U.S.C. 2605(e). The Defendants intentionally provided a document that looked like a statement with loan information at first, knowing very well that the Plaintiffs had requested their Promissory Note. These exhibits were filed with the Second Amended Verified Complaint and the alternatives. Defendants further allege that Plaintiffs made no Qualified Written Requests. Defendant states that Plaintiffs allege that their hardship affidavit, written submissions of financial information and written applications for a loan modification are QWRs. Plaintiffs submitted letters that request that the Defendant correct their account issues and those issues were never resolved or explained within 60 days ( 78 and 79, 2nd Amended Verified Comp.): Plaintiffs letters dated March 11, 2010; March 19, 2010; April 19, 2010; June 15, 2010; two (2) on July 19, 2010 (written letter to BAC & email sent to Mr. Moynihan); July 20, 2010; August 10, 2010 (email); August 13, 2010 (email) and August 16, 2010 (Demand Letter by Attorney Angela Sigman) were all written request for an investigation of misrepresentations made by Defendant BAC with respect to their mortgage account was a qualified written request within the meaning of RESPA.(78, 2nd Amend. Ver. Comp.) and Defendant BAC failed to respond in a proper and timely way to Plaintiffs qualified written requests for information about their mortgage accounts by failing to provide Plaintiffs with the information requested or explain why the information sought was unavailable, in violation of 12 U.S.C. 2605(e). ( 79, 2nd Amended Verified Complaint). In addition, Plaintiffs recently acquired their case records from Enrique, Smith & Trent P.L. On April 30, 2010, the Plaintiffs Attorney at the time (Philip Healy Esq.) submitted a 12 page fax to Defendant BACs (Bank of America) Office of the President regarding an Authorization Form and Qualified Written Requests. This request was also faxed to Ezila

Lutcher that same day which also requested that the Defendant send numerous documents pertaining to the origination of the subject loan and a loan history including fees assessed. Defendant finally replies to these requests with a letter dated May 14, 2010 and states: Please note that all other requests are declined as they seek documentation that goes beyond that which is available through a Qualified Written Request made under 12 U.S.C. 2605(B). The Defendant refused to submit all documents that were requested. For unknown reasons, according to the Plaintiffs attorneys case records recently acquired, the Defendant did not submit the Note and other documents that the Plaintiffs attorney had initially requested. Plaintiffs attorney was eventually provided with some of the requested documents by Taylor, Bean & Whitaker, except for the Promissory Note. Defendant BAC, by its own admission has stated that it indeed received Qualified Written Requests as per letters sent to the Plaintiffs Attorney dated May 10, 2010 & May 14, 2010. These letters (exhibits) were submitted with the Second Amended Verified Complaint that was filed as a separate docket. Defendants Motion to Dismiss for No Cause of Action under RESPA for no Qualified Written Requests should be denied. 2. Plaintiffs Complaint States a Cause of Action for Breach of Contract of Promissory Note & Mortgage A breach of contract amounts to a broken promise to do or not do an act. Defendant claims that Plaintiffs fail to state a cause of action for breach of contract. However, Housing and Urban Development (HUD) foreclosure rights extend the promise of fair dealing, and timely notification to homeowners. In addition, This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulation of the Secretary [of Housing and Urban Development]. The servicer is required to provide proper servicing under its contractual obligations. Mortgagee Letter 2009-42, dated October 19, 2009 says as follows: Under FHAs regulations 24 CFR 203.502, The mortgagee shall remain fully responsible to the Secretary for proper servicing, and the actions of the servicer shall be considered to be the actions of the

mortgagee. The servicer shall also be fully responsible to the Secretary for its actions as a servicer. In turn, the holding mortgagee is responsible for the actions of the sub-servicer, and the sub-servicer is responsible to the Secretary as an approved mortgagee for its actions in servicing the FHA mortgages. Even though the Plaintiffs have not been foreclosed on yet, they have received acceleration notices or threats in the mail which can also be considered as an act of extortion by demanding erroneous amounts and indicating the dates of when those foreclosure proceedings would commence if such erroneous full amount is not paid (2nd Amend. Ver. Comp. 67). Not once did the Defendant try to comply with FHA regulations or try to initiate a face to face meeting with the Plaintiffs as stipulated on the Promissory Note C.F.R. 203.604.5. Defendants intentions were clearly malicious and caused unnecessary harm to the Plaintiffs. Plaintiffs must allege: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach. Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006). If a mortgage breach occurs due to unlawful activity on the part of the lender, a borrower has the right to take legal action. The Defendants Motion to Dismiss for No Cause of Action for Breach of Contract of Note & Mortgage should be denied. 3. Plaintiffs State a Claim for Intentional Misrepresentation Defendants state that Plaintiffs assembled a number of different allegations, none of which are plead with the requisite particularity under the Federal Rules of Civil Procedure. Rule 9 of The Federal Rules of Procedure, for example, requires that allegations of fraud or mistake be stated with particularity. Furthermore, even though the Federal Rules allow fairly general and non-specific pleadings, more particular allegations are allowed. Even though the Defendant alleges that the Plaintiffs were aware that the amounts owed were false, Plaintiffs relied on the Defendants as their loan servicer that these corrections would be made. The erroneous information on the Plaintiffs account occurred in October 2009 and the Plaintiff called BACs Customer Service Department and was at times told that the issue would be corrected and at times they were provided with incorrect information. Nevertheless, the

Plaintiff then began to send written letters and emails requesting that these issues be corrected months after the issue initially started. Plaintiff also called the HOPE Helpline in the hopes that she can get help with a loan modification with BAC. The Plaintiff was told in June 2010 by Misha Smith in the Office of the President that the investigation of her account would be concluded the following week and the Plaintiff would have an answer. This never happened but the Plaintiff did rely on this information. This call was recorded by the HOPE Helpline. The Defendant BAC also states that the Plaintiffs have identified no representations made regarding the loan modification and that they failed to allege who made the representations, when they were made, the content, the details or the manner of the representations. Most of the letters sent to the Plaintiffs by the Defendant BAC were never signed nor had someones name on it so that they could not be held accountable for such misrepresentations. In the Second Amended Verified Complaint, Plaintiffs have indeed stated some dates and names of those involved and who they spoke to and also the misrepresentations made by the Defendant which included letters which spanned many months and phone calls. Defendants provided documents which contained false information or information that lead the Plaintiffs to believe that the loan modification was being processed. Plaintiffs continued to make copies at times at Office Depot and purchased costly printer ink, paper and postage multiple times just to send the documents required relying on the Defendants representations for a loan modification. Plaintiffs also continued to spend money to make necessary repairs and improvements to the home relying that the Defendant would be fair and fulfill their obligations as a lender/servicer and correct the issues. In addition, Plaintiffs initially had faith that they would receive assistance and tried faxing over documents with their personal information and letters many times but were sometimes provided with incorrect or non-working fax numbers. The Defendants further allege that the Plaintiffs themselves stated that it was the loan modification refusal not their reliance on promises to grant a loan modification that caused them harm. The Plaintiff received letters and was told over the phone that they pre-qualified, that documents were received and that the loan modification was being reviewed and relied upon this information. The erroneous information that was eventually provided to the Plaintiffs (September 24, 2010 Denial Letter) of why their loan medication was denied (financial documents were not received) was false and a mere excuse that the Defendant repeatedly uses against its customers

(2nd Amend. Ver. Comp. 65). Consequently, the Defendant will then inform the OCC on November 24, 2010, that the Plaintiffs are being considered for a permanent loan modification and are in forbearance. Plaintiffs were never notified or even heard that they ever had a trial modification or any trial payments that would then grant them to be considered for a permanent one. These statements by the Defendant were maliciously false. Instead, the Plaintiffs were already sent an official notice of denial dated September 24, 2010 via Fed Ex as stated above. The Defendant quotes the Plaintiff in footnotes of page 10 of their Motion to Dismiss (Doc. 33) of Plaintiffs Exhibit AX, July 19, 2010 email to Brian Moynihan in which the Plaintiff stated: I was never told that I was denied or approved. The Defendant BAC fails to acknowledge that Mrs. Santamaria was accurate in her statement and only confirms that she truly did not know the status at that time. It was in early October 2010 that she received the loan modification denial dated September 24, 2010, months after this email to Mr. Moynihan was sent. Plaintiffs continued to make mortgage payments that they could no longer afford in order to receive assistance. The Plaintiffs were told to continue making payments during the loan modification process and they complied with the Defendants instructions because they relied on these statements. Furthermore, Plaintiff did not take notes of everyone she spoke to at first because she relied on that information and never thought of a negative outcome. Nevertheless, the Plaintiff (Isabel Santamaria) has kept a Timeline for many months which will be notarized and submitted to the court and Defendants counsel during the discovery process. This document will possibly give a more accurate explanation of the events and when they took place. Also, no one at Bank of America ever takes responsibility for these actions. In October 2009, Plaintiff (Isabel Santamaria) was told that she could not qualify for a loan modification because they were not behind on their mortgage. Plaintiff relied on this request as true and this in turn caused the Plaintiffs to not make a payment in November 2009 and therefore the loan was officially in default for one month even though default is not required to qualify for a loan modification ( 24 of 2nd Amend. Comp). Plaintiffs Attorney at the time, Angela Sigman was also provided with false information by the Defendant on many occasions. Furthermore, the Defendant refers to 25 & 28 of the

Second Amended Verified Complaint stating that the Plaintiffs were aware that the amounts owed were false and continued to receive these erroneous statements. This allegation by the Defendant in no way demonstrates that the Plaintiffs knew with certainty that these issues would never be resolved. In addition, the Defendants act like this erroneous information on the Plaintiffs account is to be accepted and ignored. These are not innocent mistakes. Defendant BAC advised the Plaintiffs, OCC, and Congressman Bill Posey that the Plaintiffs account was corrected and payments were applied in the correct months as a result of the investigation on the Plaintiffs account and everyone involved relied on this information. This information about the account corrections provided to all parties was indeed false. More recently, the Plaintiff received in the mail a notice dated 08/13/2011 from the Defendant regarding their payment history. Every error on the account remained the same and was never corrected even after their many admissions that the account was corrected more than a year ago (2nd Amend. Ver. Comp. 68 (7)). The Plaintiff would not have continued to call the Defendants Customer Service Department and get upset with such frequency if she knew that these issues would not be corrected ( 24 of 2nd Amend. Comp.). At first she thought that it was just bad customer service and not a scheme to defraud them in such an egregious manner. The Plaintiffs never imagined that this fraudulent behavior would continue and that they would end up in litigation against the Defendant. The Plaintiffs in good faith gave the Defendant numerous opportunities to make the appropriate corrections but the Defendant refused to comply. Defendant BAC submitted a two page questionnaire-type letter addressed to the OCC dated November 24, 2010 in response to the investigation being conducted regarding the Plaintiffs allegations. This document was never submitted to the Plaintiffs by BAC but was forwarded to the Plaintiff by Congressman Posey. It was never the Defendants intentions that the Plaintiffs would see this questionnaire. The Defendant BAC clearly misrepresents statements regarding the Plaintiffs account and loan modification and provides contradicting statements. The Plaintiffs fraud claim establishes 1) false statements as a material fact; 2) that the maker of the statement knew or should have known it was false; 3) that the representation was made with the intention to induce another to act on it; and 4) that there was consequent injury by

the party acting in reliance on the representation. The written and oral statements that were made against the Plaintiffs were submitted as evidence, and speak for itself in this regard. The Defendants misrepresentations caused the Plaintiffs severe emotional distress and health issues which resulted from the Defendants malicious acts. Plaintiff (Isabel Santamaria) has been affected the most and Plaintiffs now have additional long term medical expenses due to these issues. Plaintiff (Isabel Santamaria) has been seeing a Psychologist for many months and will provide her expert witness report as part of the discovery process. Plaintiff has also missed work so many times because her depression and stress was so bad that she could not control her emotions long enough to perform her job over the phone. The Plaintiff is currently not working since May 2011 due to health and emotional issues and her employers are aware of this. The Plaintiff (Isabel Santamaria), as stated in 43 of the Second Amended Verified Complaint, is not able to get out of bed at times and fulfill household duties, work, and other activities that she would normally perform with her disabled children. Recently, David Brash from Columbus, Georgia was awarded over 21 million dollars. According to court documents, Brash sent letters to the mortgage company that went unanswered, violating federal laws. In November 2009, PHH Mortgage sent him more late payment notices, this time reporting Brash to three credit rating companies and seriously damaging his credit score, according to court documents. Brash, based in Fort Benning, Ga., rightfully sued the mortgage company for breaching the federal Real Estate Settlement and Procedures Act. He also sued under Georgia state loan servicing and breach of contract laws. The case is David Brash v. PHH Mortgage Corp., doing business as Coldwell Banker; Case No: 4:2009cv00146; Georgia Middle District Court. It is well established that the Plaintiffs have clearly endured this type of abuse and much more by the Defendant BAC and are entitled to relief. The Plaintiffs have provided enough information to identify economic injury and will supply much more during the course of this litigation. Therefore, Defendants Motion to Dismiss for No Cognizable Claim for Intentional Misrepresentation should be denied. 4. FDCPA is Applicable

Defendant states that Plaintiff failed to establish that BAC is a debt collector as defined by the FDCPA stating that they could not have been acting as a debt collector with respect to the Plaintiffs because it was collecting its own debt which was not in default at the time the debt was obtained. This statement contradicts the fact that the Defendant has been harassing the Plaintiffs by trying to collect the August 2009 payment which was sent to Taylor, Bean & Whitaker. The Defendant became the new servicer/mortgage company shortly after payment was submitted by the Plaintiffs. If the Defendant is not the debt collector for this debt than that would mean that the Plaintiffs have been harassed without motive for that debt. If the Defendant is indeed the debt collector because the loan was in default when they acquired it, than that would confirm that Defendant is to be considered a debt collector. On many of Bank of Americas Notices to their customers, it clearly states in bold letters: Bank of America, N.A. is required by law to inform you that this communication is from a debt collector attempting to collect a debt, and any information obtained will be used for that purpose. Plaintiffs have these notices in their possession. Under the FDCPA, debt collectors may not harass, oppress, or abuse anyone or any third parties they contact. For example, they may not repeatedly use the phone to annoy someone. Debt collectors may not lie when they are trying to collect a debt. For example, they may not misrepresent the amount someone owes. The Defendant continued to harass the Plaintiffs by calling repeatedly during the hours that the Plaintiff (Isabel Santamaria) was working from home and was not able to answer those calls. The Defendant continued to repeatedly harass the Plaintiffs with phone calls even after they were advised that the Plaintiffs had an attorney in March 2010 and for many months after the Plaintiffs attorney made contact with the Defendant. These telephone records will eventually be supplied as evidence. In letter dated May 14, 2010 sent by the Defendant and addressed to Plaintiffs attorney, Bank of America states: Please note that a credit block was placed while the issues in your letter were addressed. However, as of the date of this letter, the block has been removed. Further as a member of the credit granting community, Bank of America, like most creditors, relies on the accuracy and validity of the information obtained from the various reporting agencies. Therefore, we will not remove the negative credit reporting from our customers credit file.

Even though Bank of America provided false information to the credit reporting agencies and HUD by repeatedly stating that the Plaintiffs were four (4) months behind on their mortgage at that time, they had no intention of correcting the Plaintiffs credit as per this letter and they never did. As a result, it would make it impossible for the Plaintiffs to ever purchase a home again. The Defendant continued to threaten and pursue an erroneous amount from the Plaintiffs. The Defendants Motion to Dismiss for FDCPA as Inapplicable should be denied. 5. Plaintiffs State a Claim Under RICO The Defendant constitutes an illegal enterprise in acts or threat of acts in violation of Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq. The following are particular violations: 18 USC 1341: Mail fraud; 18 USC 1343: Wire fraud; 18 USC 1503: Obstruction of justice; and 18 USC 1001: Fraud. Other counts were included. All RICO cases are tried in Federal Courts and the Prosecutor or Plaintiff only needs to prove a preponderance of the evidence(the lowest level of proof) which typically means more likely than not. Rather than the usual criminal standard of beyond a reasonable doubt, U.S. attorneys prosecuting a RICO case only need to prove to the judge and jury that the defendant appears to have engaged in those criminal activities as defined in RICO. Effectively, the standard is satisfied if there is greater than fifty (50) percent chance that the proposition is true. As stated in the complaint, 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.) Continuity is both a closed and open ended concept, referring to either a closed period of conduct, or to past conduct that by its nature projects into the future with a threat of repetition. Defendants illegal and deceptive business practices are nationally known. At all relevant times, Defendant BAC (Bank of America) and its various contractors were persons within the meaning of RICO, 18 U.S.C. 1961(3) and 1962 (c).

RICO was enacted by section 901(a) of the Organized Crime Control Act of 1970 (Pub. L. 91-452, 84 Stat. 922, enacted October 15, 1970). RICO is codified as Chapter 96 of Title 18 of the United States Code, 18 U.S.C. 19611968. While its intended use was to prosecute the Mafia as well as others who were actively engaged in organized crime, its application has been more widespread. 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 treble damages. A civil RICO action, like many lawsuits based on federal law, can be filed in state or federal court. On a Motion to Dismiss on a RICO claim, allegations of the claim must be accepted as true (see e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993)). All reasonable inferences from a complaint are to be drawn in favour of the Plaintiff (Walker v. City of N.Y., 974 F. 2d. 293, 298 (2d Cir. 1992), cert. denied, 113 S. Ct. 1387, 122 L. Ed. 762 (1993)) On a motion to dismiss we must accept all allegation in the complaint as true.and draw all reasonable inferences in favour of the Plaintiff. (Volmar Distribs. v. New York Post Co., 899 F. Supp. 1187, 1189, (S.D.N.Y. 1995). As a result of these acts, Plaintiffs have directly been injured emotionally by the Defendants conduct ( 2nd Amend. Ver. Comp. 43). Plaintiffs have satisfied a federal RICO violation under 1962 (c) by establishing the four elements of proof: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity by establishing at least two acts of distinct but related predicate acts of racketeering activity occurring within a prescribed time period (Williams, 465 F. 3d at 1283-84). Appropriately, the most common predicate acts are violations of 18 USC 1341 (relating to mail fraud) and "fraud in the sale of securities" generally under Section 10(b) and Rule 10(b)5 of the Securities and Exchange Act of 1934. Mail fraud provides an especially appealing basis for the assertion of a RICO claim, since its proof requirements are more easily met than the requirements for common law fraud. Section 18 USC Section 1341 provides that "whoever, having devised . . . any scheme or artifice to defraud. . . for the purpose of executing such scheme or artifice . . . places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service . . . shall be fined . . . or imprisoned. . .." Unlike common law fraud, it is not necessary that the mailing itself contain a misrepresentation. United States v. McNeive, 536 F.2d 1245, 1249 (8th Cir. 1976). To establish

mail fraud, the plaintiff must show the existence of a plan or scheme to defraud, that it was foreseeable that the defendant's scheme would cause the mails to be used, and that the use of the mails was for the purpose of carrying out the fraudulent scheme. United States v. Leyden, 842 F.2d 1026, 1028 (8th Cir. 1988) and American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1292 (11th Cir. 2010). Defendant BAC (Bank of America) consistently schemes to defraud homeowners by mailing misrepresentations and utilizes this service to carry out loan servicing fraud. For example, Plaintiffs were constantly provided letters via U.S. Mail by the Defendant telling them that the loan modification process would take no longer than 45 days, that documents were received, that documents were missing and that documents were never received even though Plaintiffs can prove otherwise. The Plaintiffs relied on the Defendant BACs misrepresentations and provided all the financial and personal documents needed repeatedly hoping that the Defendant would act in a just manner. In regards to loan servicing fraud, these scams are designed and deliberately operated. These situations are not errors, mistakes or situations where a servicers managers or employees failed to do their job. Their systems are well-designed and state-of-the-art in terms of analytical technology that helps them choose and process their victims. The Defendant BAC, participates in such activity and has used the Postal Service to carry out such fraudulent activities and the Plaintiffs have fallen victim to such crimes on a regular basis. In addition, the Plaintiffs are not the only ones that have fallen victim to this mail fraud scheme. Many other BAC mortgage customers have expressed their frustration with the fraudulent information that they have been bombarded with by the Defendant. The Plaintiffs will provide the court with Notarized Affidavits by other BAC (Bank of America) victims that will include their negative experience with the Defendant along with their loan account information and many victims will be available to testify in court. This will also authenticate: RICO violations under 1962 (c) by establishing the four elements of proof: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity by establishing at least two acts of distinct but related predicate acts of racketeering activity occurring within a prescribed time period. The Defendant BAC has also participated in wire fraud. The crime of wire fraud is codified at 18 U.S.C. 1343, and reads as follows:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. On April 3, 2011, CBS' 60 MINUTES aired a segment titled 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, owned by Lender Processing Services, Inc., a company that works for over 51 banks. One former employee confessed to forging 4,000 documents each day. Which bank/trustees most often used the Docx forged documents in foreclosures and mortgage assignments? Deutsche Bank National Trust Company, U.S. Bank, Wells Fargo, Citibank and Bank of America were the top five users of these forged documents, but other banks were also involved. These forged documents were also repeatedly transmitted and filed electronically in courts throughout the country by the Defendant and their attorneys to illegally foreclose on homes. This constitutes in wire fraud which is a federal crime. The Plaintiffs or their previous attorneys were never able to view a copy of their Assignment of Mortgage after the loan transfer from Taylor, Bean & Whitaker to BAC (Bank of America) because it was not recorded for almost two years. Recently, on July 20, 2011, Defendant filed a MERS Assignment of Mortgage in the Brevard Clerk of Courts on the Plaintiffs property after almost two years of the transfer. Apparently, the Defendant filed this mortgage assignment after the Plaintiffs mentioned this suspicious detail in their previous Response. Furthermore, this was a robo-signed document filed by the Defendant which also substantiates the Plaintiffs allegation of wire fraud. In regards to obstruction of justice, the Defendant hindered the investigation initiated by the Office of the Comptroller of the Currency and HUD. The Defendant intentionally supplied erroneous information regarding the Plaintiffs loan modification and their mortgage account. Due to these false and inconsistent statements, the OCC, which is a regulatory agency, initially

dropped the Plaintiffs investigation against the Defendant BAC believing that the information provided was accurate. In H.J. Inc., the Supreme Court ruled that the factors of "continuity" plus "relationship" combine to form a pattern. A series of criminal acts satisfy the "continuity" requirement if they last for a substantial period of time (generally a year or more) or if they threaten to continue indefinitely. In addition to being sufficiently continuous, the criminal acts must also pass the "relationship" test, i.e., have "the same or similar purposes, results, participants, victims, or methods of commission, or otherwise [be] interrelated by distinguishing characteristics and are not isolated events." If the defendant's racketeering activities satisfy the factors of "continuity" and "relatedness," then the defendant will be found to have engaged in a "pattern of racketeering." Courts have applied a multifactor test to determine whether a pattern of racketeering activity has been pleaded or proved. The factors considered typically include the nature, number, and variety of predicate acts; the duration or time span involved; the number of victims; the number of separate transactions involving unlawful conduct; and the presence of distinct injuries. In Walsh Chiropractic, Ltd. v. StrataCare, Inc., No. 09-1061-MJR (S.D.Ill. Sept. 30, 2010), District Judge Reagan of the United States District Court for the Southern District of Illinois denied the defendants motion to dismiss and held that the plaintiff had adequately pled that the mail fraud predicates were a part of the enterprises regular way of doing business, and it was reasonable to assume that this regular business conduct may be repeated. The Defendant BAC further states that the corporation cannot be an enterprise and the person must be distinct. However, an enterprise may be an illegitimate enterprise, such as a Mafia family, or a wholly legitimate enterprise, such as a corporation. United States v. Turkette, 452 U.S. 576, 580-81 (1981). Although an enterprise can be a legal entity, such as a partnership, corporation or association, it can also be an individual or simply a relatively loose-knit group of people or legal entities. These latter groups are referred to as "association-in-fact" enterprises under the statute, 18 U.S.C., section 1961(4). The Defendant BAC states that the Plaintiff failed to identify the economic injury they attribute to Defendant BACs actions. Throughout the pleading, ( 13- 74, 2nd Amen. Ver.

Comp.) it is understood that Plaintiffs were abused by the Defendant by manner of threats, misrepresentations, embezzlement, harassment, and other violations. In regards to punitive damages under RICO, it can be argued that they should not be precluded, relying on Dicta in Sedima that suggests that RICOs multiple damage award is not a punitive award. However, in viewing the issues in various contexts, several courts have awarded both treble damages on a RICO claim and punitive damages as a form of punishment (Ross v. Jackie Fine Arts, Inc., No. 2-85-2425, 1991 U.S. Dist. LEXIS 13535 (D.S.C. September 4, 1991). In addition to treble damages, the court awarded $14.9 million in punitive damages in light of the reprehensibility of the defendants scheme. The Defendant BAC, is currently being investigated by all 50 states for fraudulent activities towards homeowners and some lawsuits have been filed in this respect. In September 2011, the Department of Labor ordered that an ex-employee at Bank of America named Eileen Foster be monetarily rewarded after being fired by the Defendant. Ms. Foster was terminated by the Defendant after her investigation exposed that Countrywide and Bank of America were guilty of mail fraud, wire fraud, and bank fraud which are all RICO crimes. http://www.iwatchnews.org/2011/09/14/6467/mortgage-industry-whistleblower-winscase-against-bank-america. The Defendant BAC (Bank of America) also conspired and endeavored to violate the activities prohibited by Fla. Stat. Sec. 772.103(1), (2), and (3). The Defendants Motion to Dismiss for No Cognizable Claim Under RICO should be denied. 6. Conclusion Defendant BAC claims that Plaintiffs Second Amended Verified Complaint is completely devoid of facts establishing the elements of their claim. Although elaborate, the complaints have been filed in accordance with the local rules to the best of their abilities and limited legal knowledge, and have provided sufficient facts (exhibits) to substantiate their allegations. Plaintiffs have complied with the Local Rules for Form of Pleadings, rules 1.05 and 1.06 and with Fla. R. Civ. P. 1.190. The Defendant should be held accountable to the same standards as anyone else who has committed the crime of fraud, forgery, embezzlement, theft, and obstruction of justice just to

mention a few. In addition, the Defendant cannot provide an actual response to the Plaintiffs allegations and therefore the Plaintiffs Second Amended Verified Complaint is sufficient to withstand dismissal and the Plaintiffs have submitted sufficient facts, not opinions of the events that took place. The Defendant maliciously refused to correct the Plaintiffs credit therefore causing harm to the Plaintiffs. Furthermore, the Plaintiffs have substantial evidence to prove harm by the Defendant by means of medical and psychological records which will be filed accordingly. The Plaintiffs were harmed by all of the Defendants fraudulent actions. The abuse became too overwhelming and unnecessary. There is also additional evidence that is still being acquired and some will need to be acquired by subpoenas. In addition, Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988. The Plaintiffs would respectfully ask for the opportunity to have their case heard in court. Accordingly, Plaintiffs respectfully request that Defendants Motion to Dismiss be denied.
Dated: September 26, 2011

_______________________________________

Abdiel Echeverria Pro Se

_______________________________________

Isabel Santamaria Pro Se 499 Cellini Ave NE Palm Bay, Florida 32907 andyecorso@yahoo.com or Isabel-1229@hotmail.com (321) 750-6697 or (321) 676-4198

State of Florida

) )

County of Brevard

ABDIEL ECHEVERRIA and ISABEL SANTAMARIA, being duly sworn, depose and say that they are the Plaintiffs in the above entitled action, that they have read the foregoing RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED VERIFIED COMPLAINT and know the contents thereof, and that the same is true of their own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters they believe them to be true.

____________________________________________

Abdiel Echeverria Pro Se

_____________________________________________

Isabel Santamaria Pro Se

Sworn before me this _________ day of ______________________, ________

______________________________________________

Notary Public

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

CASE NO.

6:10-cv-01933-JA-DAB

CERTIFICATE OF SERVICE

We, do hereby CERTIFY that a true and correct copy of the RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS has been furnished to: Akerman Senterfitt c/o William P. Gray, Esq, Attorney for Defendant BAC Home Loans Servicing, LP, and Bank of America N.A. by ( X ) mail ( ) fax ( ) mail and fax ( ) email ( ) hand-delivery on this ________ day of September_, 20 11.

____________________________________ Abdiel Echeverria Plaintiff

____________________________________ Isabel Santamaria Plaintiff

499 Cellini Ave NE Palm Bay, FL 32907 (321) 676-4198 or (321) 750-6697