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Carl D'argenzio and Barbara D'argenzio v. Bank of America Corporation F/K/A Countrywide Bank

November 21, 2011


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:


This matter is before the Court on the motion of Defendant Bank of America Corporation f/k/a Countrywide Bank, FSB ("Defendant" or "Countrywide"), for summary judgment. [Docket Item 36.] The instant action arose when Plaintiffs Carl D'Argenzio and Barbara D'Argenzio ("Plaintiffs") entered into a refinancing loan in 2007 with the Defendant and subsequently attempted to refinance their mortgage loan again in 2008. It is undisputed that the Defendant is the holder of the note and mortgage.

The Defendant argues that the Plaintiffs do not have sufficient evidence to support their claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. ("NJCFA"), or the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. ("ECOA"). Specifically, the Defendant maintains that the Plaintiffs have not alleged that they are members of a protected class under the ECOA and that there is no evidence the Defendant engaged in unlawful conduct sufficient to trigger liability under the NJCFA. In addition, the Defendant argues that any oral promises allegedly made by employees of the Defendant are insufficient to serve as the basis of the Plaintiffs' claims as these oral promises are barred by the Statute of Frauds.

The Plaintiffs oppose the Defendant's motion and argue that there are genuine issues of material fact which preclude summary judgment. Specifically, the Plaintiffs contend that there is sufficient evidence to show that the Plaintiffs were fraudulently induced to enter the 2007 loan in violation of the NJCFA based on promises of an early refinancing to more favorable terms. Further, the Plaintiffs maintain that they have a valid claim under the ECOA because the Plaintiffs never withdrew their 2008 loan application and never received any notice from the Defendant that their 2008 loan application was cancelled.

For the reasons expressed below, the Defendant's motion for summary judgment will be denied.


On or about December 20, 2005, Plaintiff Barbara D'Argenzio executed an Adjustable Rate Note in the amount of $172,000 with Countrywide. (Deposition of Barbara D'Argenzio (hereinafter "BDA Dep.") at 20:1-25:19). The 2005 loan was Plaintiff Barbara D'Argenzio's first loan with Countrywide and was executed through an intermediary broker, Cornerstone Mortgage. (BDA Dep. at 18:2-5 and Declaration of William T. Marshall, Jr. ("Marshall Decl.") at ¶ 17b).

On or about November 6, 2007, the Plaintiffs jointly executed a Note and Mortgage in the amount of $225,839.45 at a 12.710% annual percentage rate. (Marshall Decl. Ex. 12, Truth in Lending Act Discl.) The Plaintiffs entered into this loan in order to pay off the 2005 loan which was a negative amortization loan. (Deposition of Carl D'Argenzio (hereinafter "CDA Dep.") at 15:25-17:20, 18:25-19:13). Plaintiff Carl D'Argenzio was unsatisfied with the 2005 loan because, despite timely paying a few hundred dollars in excess of the $600 per month mortgage payment, he discovered he was "paying more than my mortgagee [sic], but I owe more now than I did when I started." (CDA Dep. 17:9-20.) Plaintiff Carl D'Argenzio began calling Countrywide and speaking to customer service agents because he did not understand why he owed so much money on the loan. (CDA Dep. 17:20-18:24.)

Prior to making the 2007 loan, Plaintiff Carl D'Argenzio spoke with Dave, an employee of the Defendant. The Plaintiff stated in his deposition that he had several conversations with Dave prior to making the 2007 loan, and one conversation was of particular importance. (CDA Dep. 32:23-33:5.) Specifically:

He [Dave] asked me if - if I would be able to afford $3,000 a month for no more than three months, maybe four at the longest. And I [Carl D'Argenzio] said, "What is the reasoning?"

And he [Dave] had asked me -- or he had told me he said, "Well, listen, you're right there on the borderline. I see you're trying to, you know, do your credit. I see this was paid off, that was paid off" after they reviewed my credit.

He [Dave] said, "Without no problems, if you could afford $3,000 a month for three to four months, I wouldn't have to do any other paperwork because all the paperwork would be current. I could pull you right out of that mortgage and put you in a low interest," like, you know, six, whatever it was at that particular time, "and get you back on track, get you out of this loan . . .

[A]t that particular time, I [Carl D'Argenzio] was okay. I had a nice little cushion put away. I was making good money, you know, and it was my busy season. So, you know, no, I didn't have a problem. I said, you know "I don't want to be in that forever."

He [Dave] said, "No, no. I'm telling you, we wouldn't have to go through all the paperwork. I can come right to you, you know, sign the documents. I have all the information I need in front of me. We'll just pull your credit one more time. We don't even need to get a -- get the house appraised. We could still use this appraisal. It's within the time frame." . . .

So at that time, he -- I [Carl ...

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