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Caroline Birk v. Gateway Funding Corp.

February 9, 2011

CAROLINE BIRK,
PLAINTIFF,
v.
GATEWAY FUNDING CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, who is proceeding pro se, brings this civil action alleging violations of the federal Truth in Lending Act, 15 U.S.C. § 1601, et seq. ("TILA"), and Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA"), as well as violations of various state laws with respect to loans secured by real property and subsequent foreclosure of that property. Pending before the court are defendants' separate motions to dismiss (Docs. 13, 19, 20, 21, 26, 32, and 34). / / / / / /

I. PLAINTIFF'S ALLEGATIONS

Plaintiff alleges that defendant Royal Crown Bancorp ("RCB") failed to provide her with required loan disclosures in connection with a "closed end" refinance loan which closed in February 2004. According to plaintiff, this refinance loan was later assigned to defendant Countrywide Home Loans ("CHL") and that defendant Bank of America ("BofA") is the current owner of the loan. Plaintiff next states that she took out a second loan (specifically, a home equity line of credit, or "HELOC") which closed in November 2006. Plaintiff claims that this loan originated with defendant Gateway Funding Corporation ("GFC"). Plaintiff alleges that GFC mischaracterized the loan as an "open-end type of loan" where, in fact, the loan proceeds were "exhausted on the first draw." She also claims that GFC failed to pass on a lower interest rate resulting from her payment of a "discount point." According to plaintiff, defendant The Money Brokers, Inc., ("TMB") received an origination fee as the referring broker. As with the 2004 loan, plaintiff also claims that defendant GFC failed to provide required loan disclosure documents at the time of closing. Plaintiff adds that GFC also overstated finance charges by $10,000.00, failed to respond to her rescission letter, and failed to delay foreclosure.

Next, plaintiff alleges that defendant FCI National Lender Services, Inc., ("FCI") acted as trustee in a foreclosure on the 2006 loan. Plaintiff states that the foreclosure sale occurred on September 28, 2007, and resulted in a conveyance of title to defendant Hollencrest Bayview Partners ("HBP"). According to plaintiff, this foreclosure was illegal because defendant GFC, through its trustee FCI, failed to respond to her rescission letter, failed to post a foreclosure notice on the front door of her house, and failed to personally serve her with a foreclosure notice. Plaintiff also claims that, in October 2007, defendant HBP prosecuted an illegal unlawful detainer action in state court against her despite its knowledge that title had been obtained via an invalid foreclosure. Plaintiff alleges that defendant Robert Winston was the attorney representing HBP in that action. She further claims that defendant Lakewood Ranch Homeowners Association ("LRHA") acquired a fraudulent "quit claim deed" on the subjectproperty from HBP and that LRHA directed defendant Winston to file a second illegal unlawful detainer action against plaintiff in February 2009.

Returning to the 2004 loan, plaintiff claims that defendant Recontrust Trust Company ("RTC"), acting as trustee for defendants CHL and BofA, conducted an illegal trustee's sale on March 22, 2010, foreclosing the 2004 loan. Plaintiff claims this sale occurred even though she had filed a bankruptcy petition. According to plaintiff, defendants recorded a deed of trust pursuant to this trustee's sale on April 13, 2010, with defendant Bank of New York ("BofNY") as the beneficiary.

Plaintiff alleges that these facts give rise to the following claims:

Claim 1 Unfair business practices in violation of state law. Claim 2 Violations of TILA.

Claim 3 Violations of FCRA.

Claim 4 Breach of contract.

Claim 5 Breach of duty of good faith and fair dealing. Claim 6 Intentional infliction of emotional distress. Claim 7 Unjust enrichment.

With respect to TILA, plaintiff alleges:

5.1 Plaintiff repeats and realleges each and every item and allegation above as if fully and ...


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