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

July 9, 2012

CARL D'ARGENZIO AND BARBARA D'ARGENZIO, PLAINTIFFS,
v.
BANK OF AMERICA CORPORATION F/K/A COUNTRYWIDE BANK, FSB, DEFENDANT.



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

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

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 reconsideration of this court's order and decision denying Defendant's motion for summary judgment. [Docket Item 59.] Plaintiffs Carl D'Argenzio and Barbara D'Argenzio ("Plaintiffs") oppose Defendant's motion for reconsideration and argue that the court's denial of summary judgment was proper.

The court heard oral argument on April 27, 2012. For the reasons discussed herein, the court will grant the Defendant's motion for reconsideration. The court will vacate its denial of summary judgment as to the Plaintiffs' New Jersey Consumer Fraud Act claim and enter summary judgment in favor of Defendant. However, the court will again deny summary judgment as to the Plaintiffs' claim pursuant to the Equal Credit Opportunity Act, without prejudice.

II. BACKGROUND

The procedural history and underlying facts of this case are described set forth in the court's November 21, 2011 opinion and are incorporated herein.

A. Court's November 21, 2011 Opinion

The court issued an opinion denying the Defendant's motion for summary judgment and held the Plaintiffs' claims alleging violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. ("NJCFA"), and the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. ("ECOA") remained viable. In addressing the NJCFA claim, the court found there were genuine issues of material fact regarding the completeness of the July 2008 loan application and whether the Defendant engaged in unlawful conduct by allegedly inducing the Plaintiffs to enter into the 2007 loan agreement and misrepresenting to the Plaintiffs that the 2007 loan would be eligible for refinancing at a lower interest rate in three to four months as long as Plaintiff Carl D'Argenzio improved his credit. Giving all favorable inferences to the Plaintiffs, the court concluded a rational jury could find that the Plaintiffs were fraudulently induced to enter into the 2007 loan agreement and suffered ascertainable loss as a result of the Defendant's unlawful conduct.

The court also found that there were genuine issues of material fact which prevented summary judgment as to the ECOA claim. In particular, the Defendant maintained that the Plaintiffs withdrew their loan application in September 2008 while the Plaintiffs denied withdrawing their loan application. The Defendant argued that the loan application was unsigned and incomplete. The Plaintiffs maintained that the application was complete because they submitted all the requested documents to the Defendant multiple times and were vigilant in communicating with the Defendant. As a result of these genuine factual disputes and giving all favorable inferences to the Plaintiffs as the nonmoving party, the court held a rational jury could conclude that the July 2008 loan application was complete and was cancelled by the Defendant without sending any notice to the Plaintiffs in violation of the ECOA.

B. Initial Motion for Reconsideration

In its initial motion, the Defendant argues reconsideration is appropriate because the court overlooked three key documents in rendering its opinion: the July 2, 2008 Notice of Incompleteness; the September 8, 2008 Withdrawal Letter; and the October 23, 2007 Loan Commitment. The Notice of Incompleteness was attached to the Declaration of William T. Marshall, Jr. in support of the Defendant's summary judgment motion and the Withdrawal Letter and 2007 Loan Commitment were attached to the Reply Declaration of William T. Marshall, Jr. in response to the Plaintiffs' opposition.

First, the Defendant maintains that the Notice of Incompleteness and Withdrawal Letter evidence the Defendant's compliance with the ECOA and support a finding that no adverse action was taken by the Defendant in violation of the ECOA. Second, the Defendant argues that the 2007 Loan Commitment refutes Plaintiffs' claims that they were promised an automatic refinancing by the Defendant and therefore the Plaintiffs' NJCFA claim should have been dismissed. In addition, the Defendant raises a new argument for the first time on reconsideration that Plaintiffs' ECOA claim should be dismissed because it is barred by the statute of limitations.

The Plaintiffs oppose this motion for reconsideration. The Plaintiffs maintain that summary judgment was properly denied because there are genuine issues of material fact. The Plaintiffs argue that the Notice of Incompleteness and the Withdrawal Letter are not dispositive and rebutted by the Plaintiffs' deposition testimony. The Plaintiffs further argue that the language of the 2007 Loan Commitment does not foreclose their NJCFA claim because the Plaintiffs have sufficiently alleged an oral commitment to refinance. Finally, Plaintiffs contest Defendant's statute of limitations argument and maintain the Defendant waived any statute of limitations defense by consenting to the Plaintiffs' amended complaint, wherein the ECOA claim was first raised.

C. Motion to Supplement the Record

After the initial motion for reconsideration was fully briefed, the Defendant filed a motion for leave to supplement the record which this court granted. The Plaintiffs belatedly disclosed a copy of their 2008 income tax returns on January 13, 2012, after briefing on the reconsideration motion was complete, and after Defendant had repeatedly demanded production.

The Defendant argues that the tax returns, when viewed in conjunction with Plaintiffs' 2008 Uniform Residential Loan Application ("URLA") for an FHA loan, to refinance the 2007 loan, confirms that the 2008 URLA contained materially false and inflated income information. These tax returns, according to the Defendant, offer additional evidence to confirm that the Plaintiffs' efforts to refinance were futile, and that Plaintiffs had overstated their income by a factor of ten when compared with their true income.*fn1

The Plaintiffs did not oppose the Defendant's motion to supplement the record; however, the Plaintiffs contend that the addition of the 2008 tax returns into evidence should not change the court's previous denial of summary judgment. The Plaintiffs contend that Carl D'Argenzio's deposition testimony is evidence that the Plaintiffs were promised the refinancing to the lower interest rate loan without the requirement of completing more loan application paperwork. Therefore, since the 2008 tax returns reflect the Plaintiffs' ...


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