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Marino v. Bank of America Home Loans

United States District Court, Second Circuit

December 10, 2013

VERA GRETCHYN MARINO, Plaintiff,
v.
BANK OF AMERICA HOME LOANS, BANK OF AMERICA CORPORATION, individually and as successor to the interests, credits and liabilities of COUNTRY WIDE HOME LOANS, INC., Defendants. VERA GRETCHYN MARINO, Plaintiff,
v.
COUNTRY WIDE HOME LOANS, INC. and BANK OF AMERICA HOME LOANS and BANK OF AMERICA CORPORATION, interests, credits and liabilities of COUNTRY WIDE HOME LOANS, INC., Defendants. VERA GRETCHYN MARINO, Plaintiff,
v.
GREEN TREE SERVICING, LLC, Defendant.

OPINION AND ORDER (Docs. 42, 43)

WILLIAM K. SESSIONS, III, District Judge.

Plaintiff Vera Gretchyn Marino, proceeding pro se, brings this consolidated action against Defendants Countrywide Home Loans, Inc. ("Countrywide"), Bank of America, N.A. and Bank of America Corporation ("Bank of America"), and Green Tree Servicing, L.L.C. ("Green Tree"), alleging that she was defrauded into refinancing her home. Defendant Green Tree now moves to dismiss for failure to state a claim. For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED in part.

Factual Background

Marino has owned a home in Winhall, Vermont for approximately forty-five years. The original mortgage on the property was paid off in or about 1980. Beginning in September 2005, Marino was solicited by two Countrywide agents, Mark Memmelo and Steve Da Silva, to take out a new mortgage. Memmelo allegedly told Marino that "the money in her home was doing nothing for her, " and that she could "put that equity money to use for her security in her senior years." (Doc. 27 at 7.) Memmelo also allegedly informed Marino that any commission due to him or Countrywide would not be charged to her, assured her that he was trustworthy, and told her that he "had her financial interests at heart." Id . Marino was sixty-seven years old at the time.

On September 13, 2005, Memmelo told Marino that the interest rate on the new loan would be, at worst, 5.8%. At Memmelo's request, the home was appraised and the reported value was $610, 000. Memmelo then informed Marino that he could write a loan in the amount of approximately $350, 000 to $375, 000.

Marino subsequently asked Memmelo's opinion about using the proceeds from the loan to purchase a condominium in New York City. Memmelo allegedly responded: "That's a great idea, that's a hot market, that's good, but let's not tell anyone about that." Id. at 8.

On October 4, 2005, Marino received a document from Countrywide's Edwin Marini, with whom she had not had any prior contact, informing her she was applying for a loan with an interest rate that exceeded the "Declared Rate" by 3%, and for which the lender would charge more than four points. The notice from Marini did not specify either the actual interest rate or the number of points on the loan. That same day, Marino received a second document from Trinidad Blanchet, stating that the loan amount would be $360, 000, with a discount fee of $900 and an interest rate of 9.75%, discounted.25%, with a monthly payment of $2, 925 for principal and interest.

When Marino read the terms of the loan she called Memmelo, who allegedly assured her "not to worry, that this is a formality only[. D]idn't I tell you that the worst case would be around 5 or 6%, and don't forget, there are no points[] charged to you." Id. at 8-9. Memmelo also allegedly assured Marino that the documents she had received were a "screw up, " but urged her to sign the document sent by Edwin Marini. Id. at 9. Marino signed the document as requested.

On October 5, 2005, Marino signed a contract to purchase a condominium in New York City. The down payment on the condominium was $95, 000, with a purchase price of $950, 000. Under the terms of the deal, Marino forfeited her down payment if the transaction did not close by November 30, 2005.

Marino claims that the interest rate on her Vermont refinancing "came to be 10% on October 6, 2005, the date of closing of this loan with Countrywide." Id. at 10. Facing the potential of forfeiting the down payment on the New York City property if she did not receive funds from Countrywide, Marino closed on the Vermont refinancing. The Second Amended Complaint alleges that because of the stress of these events, Marino suffered a "coronary occlusion" within eleven days of the transaction. The condition required emergency surgery, and has since resulted in "coronary sequellae..., uncontrolled hypertension and acute emotional distress." Id. at 11.

Marino reports that although Memmelo assured her that New York City was a "hot market, " and that a condominium there would rise in value, the condominium was sold in June 2011 at a considerable loss. As of 2012, Marino was unable to continue the payments on her Vermont home.

Marino further alleges that from 2004 through 2008, officers and directors at Countrywide conspired to

embark upon a secret corporate strategy and plan, on a national scale, to maximize the number of mortgages, by refinance or otherwise, that it sold to the public at large, by directing and/or encouraging, through its agents, servants and/or employees, supervisors and team leaders, which included Mr. Memmelo and Mr. DaSilva, to sell as many of its loans as possible by steering' and encouraging' people into loan contracts, with whatever words, opinions, projections, representations or statements it took, even if such words, opinions, projections, representations or statements, were wild, patently speculative, [or] untrue....

Id. at 13. The "ultimate purpose" of this conspiracy, Marino claims, was "to bundle and sell these loans as securities... to the world market." Id. at 14. Marino alleges that her loan was a ...


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