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Fleet v. Bank of America N.A.

California Court of Appeals, Fourth District, Third Division

August 25, 2014

ROBERT C. FLEET et al., Plaintiffs and Appellants,
BANK OF AMERICA N.A. et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of San Bernardino County No. CIVRS1204737, Joseph R. Brisco, Judge.

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[Copyrighted Material Omitted]

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Robert C. Fleet and Alina O. Szpak-Fleet, in pro. per., for Plaintiffs and Appellants.

McGuireWoods, Leslie M. Werlin and Blake S. Olson for Defendants and Respondents.




This appeal represents another example of what is becoming a well established and predictable pattern. A homeowner in distress because of the meltdown of the financial markets applies to a lender for mortgage relief. The lender approves the homeowner’s participation in a government-funded program meant to lower mortgage payments and avoid foreclosure. The homeowner tries to comply with the terms of the mortgage modification program. He or she contacts the lender to make sure everything is proceeding according to plan and either receives assurances that it is or is passed from

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person to person, each of whom professes to know nothing about the loan in question or its modification. Sometimes both. Then the foreclosure notice is posted on the door, and the house is sold.

Robert C. Fleet and Alina Fleet, appellants in this case, alleged just such a pattern in their first amended complaint against respondent Bank of America (BofA). Because they are representing themselves, their complaint is not in the form to which courts are accustomed.[1] Nevertheless, allegations of viable causes of action can be sufficiently discerned to defeat a demurrer. We therefore reverse the judgment dismissing their case against BofA and return them to the trial court for further proceedings.


The Fleets owned a house in Montclair. They obtained a mortgage loan from BofA in 2004. They applied to have their loan modified in 2009 under the Making Homes Affordable Program. Then began month after month of telephone conversations with and letters to various BofA-related personnel, who either (a) assured the Fleets that everything was proceeding smoothly or (b) told the Fleets they had no knowledge of any loan modification application. Finally, in November 2011, BofA informed the Fleets they had been approved for a trial period plan under a Fannie Mae modification program. All they had to do, the Fleets were told, was to make three monthly payments of $957.43, starting on December 1, 2011. If they made the payments, then they would move to the next step—verification of financial hardship. If they passed that test, their loan would be permanently modified.

The Fleets made the first two payments, for December 2011 and January 2012. A BofA representative told them in December that BofA had received the December and January payments[3] and that foreclosure proceedings had been suspended. Toward the end of January 2012, their house was sold at a trustee’s sale.

Two days after the sale, a representative of the buyer showed up at the house with a notice to quit. The Fleets informed him that the house had

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significant structural problems, and he said he was going to rescind the sale. The Fleets continued to try to communicate with BofA regarding the property. A BofA representative left voice mail messages to the effect that BofA wanted to discuss a solution to the dispute, but otherwise it appeared that productive conversation between the Fleets and BofA and between the Fleets and the buyer had ceased. In light of this silence—which they interpreted to mean the buyer was trying to rescind the sale—the Fleets spent $15, 000 to repair a broken sewer main, which was leaking sewage onto the front lawn. They were evicted in August 2012.

In June 2012, the Fleets sued BofA, the trustee under their deed of trust, BofA officers and some of the employees who had been involved in handling their loan modification (the BofA defendants), and the buyer of the property and its representative. In August, the trial court sustained BofA’s demurrer with leave to amend as to some of the causes of action and without leave as to others. The Fleets filed an amended complaint in September. BofA’s demurrer to the first amended complaint was sustained without leave to amend as to the remaining causes of ...

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