UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION KIMBERLY AND DONALD BOLIN, Plaintiffs, v. HSBC MORTGAGE SERVICES, INC., MARTIN LEIGH PC, and MERS ) ) ) ) ) ) ‘Case No. 4:17-CV-01903RLW ) 2 Defendants. ) PLAINTIFFS’ MEMORANDUM IN SUPPORT OF OPPOSITION TO DISMISSAL COME NOW, the Plaintiffs, Kimberly and Donald Bolin, with this Memorandum in support of their Opposition to Intervale Mortgage Corporation's (“Intervale”) Motion to Dismiss Plaintiffs Amended Complaint and state as follows: Dismissal Is Not Warranted Where Plaintiffs Have Stated A Cause Of Action For the purposes of a motion to dismiss, a court must take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 555 U.S. 662, 678 (2009). All Plaintiffs have to do is allege sufficient facts and meet the elements of the cause of action in order to defeat a Rule 12(b)(6) motion. Plaintiffs have done that. Furthermore, in the event that the Court determines in particular causes of actions that the Plaintiffs have fallen short of fully stating a cause of action, then Plaintiffs request the Court make “reasonable allowances” due to their lack of legal training. Hughes v. Rowe, 449 U.S. $ (1980); Haines v. Kerner, 404 U.S. 519 (1972). Rowe and Haines collectively state that courts ‘must not hold pro se litigants to the same standards as a lawyer of the bar regarding procedure, tc. and that courts are to “liberally construe” pro se litigant’s submissions. Platsky v. C.LA., 953 F.2d 26 (2nd Cir. 1991) instructs that a court errs ifthe court dismisses a pro se litigant’s pleading without instruction as to how the pleading is deficient and how to repair the pleading.Plaintiffs therefore request they be afforded the same deference in the event this Court deems a particular cause of action deficient or that additional counts need to be pled for clarity. Count II Fraud and Collusion: Plaintiff has pleaded sufficient facts to support their claims for fraud and collusion. Federal Rule of Civil Procedure 9(b) requires a party to “state with particularity the circumstances constituting fraud or mistake. Knowledge and other conditions ofa person’s mind may be alleged generally.” Although allegations of who, what, when, where, and how” must be pleaded, “Rule 9(b) is deemed satisfied if the allegations are accompanied by a statement of facts on which the belief is founded.” Drobnak v. Andersen Corp., 561 F.3d 778, 783-84 (8th Cir. 2009). In other words, Plaintiffs merely have the burden of “plead[ing] the ‘equivalent of the first paragraph of any newspaper story.” Drobnak, 561 F.3d at 784. Plaintiffs allege: + Who: Intervale, their employees and other Defendants; + What: fraudulently misrepresented the terms of the alleged original contract, the validity of the original contract, the actual lender, if any, the current holder of the alleged note and deed of trust, any actual party entitled to relief, misrepresentation, and collusion; + To Whom: the Plaintiffs ; *+ When: at the inception of the contract from Nov 20, 2004 thru Dec 3, 2004, and at multiple points across many years during the course of the alleged contract to the present day; + Where: In multiple locations listed in the original Complaint;* How: by failing to disclose that the lender listed on the contract was not the lender at all; by continuing to enforce a contract that was void on its face through collection of payments through to nonjudicial foreclosure and unlawful detainer; by executing “temporary modifications”; by refusing permanent modifications based on Plaintiffs disability; and other actions listed within the Complaint. * Any additional or more specific facts remain “peculiarly within the opposing party’s knowledge.” Id. at 783. Plaintiffs’ Complaint satisfies this burden of “pleading] the equivalent of the first paragraph of any newspaper story.” Drobnak, 561 F.3d at 784. Intervale claims that even if the facts are correct, the action is time barred based on RSMO § 516 -120(5). However, a careful reading of the statute makes clear this is untrue. The statute reads thus: (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten ‘years, of the facts constituting the fraud. This statute is further explained by the following. footnote: (1970) The period of limitation under subdivision (5) of this section accrues the moment the right to commence the action comes into existence, but is deferred until the actual discovery of the fraud at any time within ten years of its perpetration. If the fraud was not discovered or discoverable during the ten-year hiatus, the cause of action will be deemed to have accrued at the termination of such period and the statute of limitations will commence to run at that time, thereby permitting a maximum of fifteen years for commencement of the suit, Anderson v. Dyer (A.), 456 S.W.2d 808. Defendant claims that, “Plaintiffs also explicitly plead that upon inspection of the original Joan documents, the lender’s address listed was not Intervale’s. Compl. at § 23. Plaintiffs surely could have ascertained the identity of the original lender in 2004 with a simple review of any‘number of loan documents, and Plaintiffs appear to concede such information was available on the face of the loan documents. Plaintiffs possessed the ability to ascertain the underlying basis for their fraudulent inducement claim, and should be deemed to have known of the alleged fraud in 2004.” However, defendant has conveniently forgotten that there was only ONE document with a local address, which claimed to be that of the lender, which plaintiffs were led to believe was Intervale. In the 73 pages of the original loan documents, Intervale is named as the lender every time and their address is in Rhode Island. Upon seeing the local address originally, plaintifs assumed, as any average person would, that the local address was a local office of Intervale. Plaintiffs thus had no reason to question whether or not the local address was Intervale’s as in all other documents Intervale is referred to as the lender. Plaintiffs only began to question the validity of the lender after the conflicting documents received during the foreclosure process itself and it was only this year, 2017, when plaintiff's became aware that Intervale had never been licensed to do business in Missouri nor had they ever had a local address located in Missouri to do business in. The documents themselves were written by the defendant(s) and written in such a way as to assure that the plaintiffs would not question their validity or be able to uncover their fraud, As such, the statute of limitations should not have begun to run until 10 years after the inception of the fraud, in this case Dec 3, 2014 which would mean plaintiffs had until Dec 3, 2019 to file suit. Therefore, plaintiffs’ claims for fraud and collusion are not outside the statute of limitations. ‘Whether one claims fraud in the inducement or fraud and collusion or both, this suit was indeed brought within the RSMO § 516 .120(5).Plaintiffs agree that the different types of fraud should be rewritten as separate counts, elaborated upon, and the evidence submitted to make perfectly clear the fraud that was perpetrated by the defendant and thus would request this honorable court allow the plaintiffs to submit a Second Amended Complaint to conform to proper pleading standards. ‘Count VII Intentional Inflection of Emotional and Physical Distress: Plaintiffs concede that as to count VII, statute of limitations may apply to Intervale, in so far as plaintiffs may have mispled this count. Plaintiffs therefore respectfully request this Court allow them to amend this cause of action to comply with proper pleading standards as regards to Intervale. Count IX Fraudulent Practices: Count Nine opposition is merely a rehashing of the previous Count Three opposition. Defendant has not answered the Complaint and only broadly addresses the allegations set forth in this Count. As previously discussed in Plaintiffs’ argument regarding Fed.R. Civ. Pr. 9(b) in Count Three above, all facts have been set forth with as much knowledge as the Plaintiffs have at this time, as the rest of the information is in the hands of the Defendants ie. specific employees, As also previously discussed, plaintiff's are well within the Missouri statute of limitations as set forth in RSMO § 516 -120(5). Therefore, this Count should not be dismissed.Conclusion WHEREFORE, Plaintiffs’ respectfully request this Court deny Defendant’s Motion to Dismiss; grant Plaintiffs the opportunity to file a Second Amended Complaint; and for other such relief as this Court may deem appropriate. Yl) Dall Bator Kimberly Bolin Donald Bolin 5019 Meadow Dr. 5019 Meadow Dr. Imperial, MO. 63052 636-226-8173 636-226-8173CERTIFICATE OF SERVICE ‘The undersigned certifies that on this 29th day of December 2017, the foregoing was filed in person with the Clerk of the Court and served by electronic filing system upon all counsel of record. E> Dovull. Bolu Kimberly Bolin Donald Bolin 5019 Meadow Dr. 5019 Meadow Dr. Imperial, MO. 63052 Imperial, MO. 63052 ‘Tazzer4000@unseen.is tazzer40001 636-226-8173 636-226-8173