PLAINTIFFS OPPOSITION TODEFENDANTS MOTION TO DISMISS

Kim Popovich

332 Main Street

West Dennis, MA 02670

Phone 

Email

Plaintiff in pro per

Kristin Shaner

697 Main Street

Dennisport, MA 02639

Phone

Email

Plaintiff in pro per

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

In response to Quicken Loan’s Motion to Dismiss, Kim Popovich and Kristin Shaner, (“Popovich” and “Shaner”) (together “Plaintiffs”) request that the court deny this motion by defendants.   As outlined in the Complaint, it alleges and demonstrates violations of Federal Truth in Lending Acts and practices (TILA), Regulation Z, 12 C.F.R.  p. 1026 (Regulation Z); Violations of the Federal Real Estate and Settlement Procedures Act, (“RESPA”), Misrepresentations in Financial Terms or Availability with “Bait and Switch” and Tortious interference with a business relationship thereby causing violations of 93A, Unfair business practices in the State of Massachusetts.    All of these violations separately, and together constitute a valid cause of action in the United States District Court for the District of Massachusetts. The allegations that Kristin Shaner has refused to participate in this lawsuit are unfound. (“Popovich” and “Shaner”) (together “Plaintiffs”) do wish to go forward as stated in Exhibit A, Kristin Shaner states in her email to Attorney Courtney Hayden, that she “will not be dismissing the Case.”  One can reasonably interpret that as participation since Quicken Loans made no effort to settle the matter, and Plaintiffs have suffered harm.     

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

1. Defendant’s assertion that Plaintiffs have failed to state a misrepresentation or bait and switch claim is false.
2. Defendant misrepresented material facts in the transaction involving Plaintiffs. In Rodi v. Southern New England School of Law, 532 F. 3d 11 (2008), it was held as follows: “Under Massachusetts law, to recover for fraudulent misrepresentation Rodi must allege and prove that (i) the defendants made a false representation of a material fact with knowledge of its falsity for the purpose of inducing him to act thereon, (ii) he relied upon the representation as true and acted upon it to his detriment, and (iii) that his reliance was reasonable under the circumstances.”
3. Defendant falsely represented to Plaintiffs that Shaner was qualified for a 3% down mortgage loan. They did so while knowing that they would increase it to a 10% down mortgage loan. The representation that it was a 3% down mortgage loan is the reason why Plaintiffs agreed to proceed with the transaction. 
4. Defendants misrepresented to Plaintiffs that they were applying for a 3% down mortgage loan to induce them to agree to the transaction. Defendant knew that if it had represented to Plaintiffs that they were applying for a 10% down mortgage loan, Plaintiffs wouldn’t have agreed to enter the transaction.
5. In entering the transaction, Plaintiffs knew that they were applying for a 3% down mortgage loan. They reasonably relied on the false representation as Shaner knew she could afford the 3% down mortgage loan.
6. Two days to the closing of the 3% down mortgage loan, Defendant changed the terms of the mortgage loan as well as the closing costs, hampering Shaner’s ability to acquire the loan. The terms were changed to a 10% down mortgage loan, which Shaner could not afford. Defendant sent an email stating that it cannot offer a commitment letter. Defendant knew that it would not give Plaintiffs the 3% down mortgage loan, that’s why it declined to offer a commitment letter.
7. As a result of Plaintiffs’ reliance on the false misrepresentation that they were entering into a 3% down mortgage loan agreement, they have suffered damage in the form of loss of a place to live, loss of deposits paid to Defendant, loss of septic repair money, loss of legal fees, loss of commissions and loan application costs and appraisal fees.
8. Therefore, it is untenable for Defendant to assert that Plaintiffs haven’t stated a claim of misrepresentation or bait and switch when Plaintiffs suffered as a result of Defendant’s intentional misrepresentation that they were agreeing to a 3% down mortgage loan.
9. Defendant is liable for misrepresentation or bait and switch and ought to pay damages to Plaintiffs.
10. Defendant’s assertion that Plaintiffs have failed to state a claim of violation of Chapter 93A, Section II is false.
11. Massachusetts General Laws Chapter 93A § 2(a) stipulates the following: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”
12. Defendant deceived Plaintiffs so they could enter into a 3% down mortgage loan agreement and unfairly changed the terms to a 10% down mortgage loan without consulting Plaintiffs to find out if they could be able to proceed with the new terms. 
13. In Egan v. Athol Memorial Hospital., 971 F. Supp. 37 (1997), it was stated that: “A plaintiff in a Chapter 93A claim must demonstrate that the defendant’s actions fell within at least the penumbra of some common-law, statutory or other established concepts of unfairness, or were immoral, unethical, oppressive, or unscrupulous.”
14. In Re Pharmaceutical Industry Average Wholesale Price Litigation, 491 F. Supp. 2d 20 (2007), the court held thus: “Chapter 93A gives no definition of unfairness, and Massachusetts courts have refrained from establishing such a definition. Instead, whether an act is unfair or deceptive is best discerned from the circumstances of each case.” 
15. Plaintiffs and Defendant had already agreed to the 3% down mortgage loan. Defendant’s decision to change the terms to a 10% down mortgage loan just two days to the close of the 3% down mortgage loan transaction was unfair and was done in absolute bad faith. No substantial reason was given for the abrupt change. 
16. Plaintiffs had done a lot to ensure that the 3% down mortgage loan transaction went through. 

Shaner had planned to move in into her house but she had to make other plans when the 3% down mortgage loan transaction fell through. Septic repair money, legal fees and commissions had already been paid by Plaintiffs believing that the 3% down mortgage loan transaction would go through. The deception and the late change of the terms was totally unfair to Plaintiffs. It led to loss in the form of repair, legal and commission fees that had already been paid.

17. After the transaction fell apart, Defendant sent Plaintiffs a letter in which it admitted that it knowingly should have reviewed documents earlier. It offered Shaner a refund of $500, while it stated in the Motion to Dismiss that it did not find any reason to reimburse Shaner.
18. Therefore, it is untenable for Defendant to assert that Plaintiffs haven’t stated a claim of violation of Chapter 93A, Section II when Plaintiffs suffered as a result of Defendant’s unfair change of the terms of the 3% down mortgage loan transaction.
19. Defendant is liable for violation of Chapter 93A, Section II and ought to pay damages to Plaintiffs.
20. Defendant’s assertion that Plaintiffs have failed to state a claim of tortious interference with a business relationship is false. 
21. In Mass Cash Register, Inc. v. Comtrex Systems Corp., 901 F. Supp. 404 (1995), the court held that “A claim of intentional interference with advantageous business relations requires proof of four elements: (1) the existence of a business relationship or contemplated contract of economic benefit, (2) defendant’s knowledge of such relationship, (3) the defendant’s intentional and improper interference with that relationship, and (4) the plaintiff’s loss of advantage as a direct result of the defendant’s conduct.”
22. Plaintiffs and Defendant had entered into a buyer agency contract that involved a 3% down mortgage loan. Shaner was supposed to benefit by getting the mortgage for her house and Popovich was supposed to benefit by getting a commission for facilitating the transaction.
23. Defendant was aware of the contract as well as the 3% down mortgage loan. Defendant interfered with the buyer agency contract by changing the terms to a 10% down mortgage loan just 2 days to the closure of the transaction. Since Shaner could not be able to afford the 10% down mortgage loan, she had no other choice but to reject the terms of the 10% down mortgage loan. As a result, the terms of the buyer agency contract could not be completed as Shaner could not go through with the new terms of the 10% down mortgage loan. 
24. Therefore, it is untenable for Defendant to assert that Plaintiffs haven’t stated a claim of violation of intentional interference with advantageous business relations when Popovich suffered as a result of Defendant’s unfair change of the terms of the 3% down mortgage loan transaction.
25. Defendant is liable for intentional interference with advantageous business relations and ought to pay damages to Plaintiffs.
26. The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies, as well as people or entities in the residential real estate business, such as banks or other lending institutions, whose discriminatory practices make housing unavailable to persons on the basis of protected classifications, including sex and familial status. 
27. Section 3602 of the Act defines “familial status” as follows: (k) “Familial status” means one or more individuals (who have not attained the age of 18 years) being domiciled with – (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.  
28. 12 CFR § 1002.4(a) provides that a creditor shall not discriminate against an applicant on a prohibited basis regarding any aspect of a credit transaction. Pregnancy is one of the prohibited basis upon which an applicant should not be discriminated against.
29. Shaner was discriminated against because of her pregnancy. When Defendant found out that Shaner, the terms of the 3% down mortgage loan were changed to a 10% down mortgage loan. Defendant changed it to a 10% down mortgage loan because it knew that Shaner would not be able to afford it, therefore, she would cancel the mortgage loan transaction. Later, Defendant gave a 5% down mortgage loan on the same property that Shaner wanted to purchase to another woman who was not pregnant.
30. Therefore, it is untenable for Defendant to state that Plaintiffs haven’t stated a claim of discrimination when it changed the terms of the 3% down mortgage loan and gave a 5% down mortgage loan on the same property Shaner intended to purchase to another woman who was not pregnant.

REASONS WHEREFORE, Plaintiffs respectfully request this Honorable Court to strike Defendant’s Motion to Dismiss.

Dated this ____ day of ________________________, 2021.

Respectfully Submitted,

___________________________________

Kim Popovich

Plaintiff in pro per

___________________________________

Kristin Shaner

Plaintiff in pro per

VERIFICATION

I, Kim Popovich, being duly sworn depose and say that I am a Plaintiff in the above-entitled action, that I have read the foregoing Opposition to Defendant’s Motion to Dismiss and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of ___________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

VERIFICATION

I, Kristin Shaner, being duly sworn depose and say that I am a Plaintiff in the above-entitled action, that I have read the foregoing Opposition to Defendant’s Motion to Dismiss and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of ___________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

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