Bank Of America

Case Study: Bank of America

When a Bank Is in the Wrong

I recently had the pleasure of finishing up a great case. I had the pleasure of representing a wonderful woman. She was a homeowner who entered into a loan modification with Bank of America to lower her monthly payments so that she could afford them on her limited income. However, despite the mortgage modification, she continued to receive monthly statements from the bank claiming that she was behind on her mortgage payments because she was not continuing to pay the higher pre-modification payment. Her continued efforts to resolve the issue with the bank were unsuccessful. She was referred to our offices by another attorney who knew we could help.

She knew this behavior was wrong, and she immediately brought it to my attention. Accordingly, our firm filed suit against the bank for violating the Florida Consumer Collection Practices Act (FCCPA), alleging that the monthly statements sent to her by the bank were improper efforts to collect debt above and beyond the amounts that were actually owed each month under the loan modification.

Shockingly, the Lee County trial court dismissed the case on the bank's motion, agreeing with the bank’s argument that the monthly billing statements could not be considered attempts to collect debt under the FCCPA. The trial court reasoned that the statements were merely sent to enforce the bank’s security interest (mortgage) in her home. Obviously, my client and I did not agree with the trial court’s ruling, and so she decided to appeal the dismissal of her case to the Florida Second District Court of Appeal, case no. 2D12-6271. Thankfully, the trial court’s decision was reversed and we were allowed to continue with our lawsuit. The appellate court reviewed the content of the letters, citing those portions which expressly directed my client to make payment in a certain amount, and ruled that the monthly billing statements could be construed as attempts to collect debt. This is exactly the ruling we were looking for and had worked so hard for.

Importantly, the Second District Court of Appeal also noted that the bank’s secondary argument—that it could not be liable under the FCCPA because it was not a statutorily-defined “debt collector”—held no merit. We agreed. The appellate court emphasized the language of the statute, which clearly states that any person can be held liable for violating the FCCPA, not just those who meet the definition of a “debt collector.” It was our position that, under the statute, the bank is a person.

The case was remanded back to the Lee County trial court, and it eventually settled. We were able to reach a very favorable settlement for the client.

What This Case Reveals

I tell this story for two reasons:

I’ve learned to trust my clients. While they don’t have the benefit of a legal education, they do know the difference between right and wrong. My client knew that Bank of America’s monthly statements could have been corrected and that the longer she let it go the more of a problem it would be later to fix. Every month, she knew it was wrong. She didn’t know they were violating Florida law, but she knew it wasn’t right.

In Florida, we have an excellent judiciary. However, even judges get it wrong sometimes. Judges make tough decisions all day, every day. If they get 999 out of 1,000 decisions right, that is an excellent starting point. But, if you are the client that believes the Judge made a mistake, you need to be able to appeal that decision. Sometimes, you need a second set of eyes after being told that you were wrong. That is why we have appellate courts.

Flash Forward

The other day, I was in a different court on a different matter but arguing a similar point of law. The Judge looked at me and asked if I was familiar with the ruling in the earlier case. I smiled at the Judge and said: Yes, Your Honor, I am very familiar with that ruling.

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