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Nelson Mullins Consumer Financial Services Litigators Win Dismissals

HUNTINGTON, W.Va. (May 9, 2011) -- Nelson Mullins attorneys Jeremy Hodges, Joe Lischwe, Brian Anderson, and Joe Dowdy recently successfully represented clients in two dismissals in West Virginia.  In two opinions issued within the last month in Wittenberg v. First Independent Mortgage Co., et al, the lawyers won motions to dismiss on behalf of several firm clients in a lender liability case pending in the United States District Court for the Northern District of West Virginia.  The Plaintiff alleged more than twelve causes of action against nine different defendants.  Plaintiff asserted claims for TILA and RESPA violations, attempted private actions under HAMP and a PSA, state unfair and deceptive trade practices claims, state consumer protection act claims, and a series of state law causes of action sounding in fraud, negligence and contract.  The case also involved a challenge by the Plaintiff to the lawfulness of securitizing loans and the ability of a trust to collect upon a loan that has been securitized. 

Nelson Mullins represented four different clients in the litigation: Wells Fargo, Bank of America, U.S. Bank N.A., and MERS.  Our lawyers filed motions to dismiss all of the claims against all of these defendants. 

In an opinion issued on April 11, 2011, the district judge dismissed with prejudice all of the claims against U.S. Bank and MERS and dismissed with prejudice all but two claims against Wells Fargo.  In a separate opinion issued on May 5, 2011, the district judge also dismissed with prejudice all of the claims against Bank of America.   The decisions include helpful rulings that securitization of a loan is not unlawful, that equitable tolling of TILA claims is limited, and that borrowers generally are not intended beneficiaries of PSAs.  The decisions also reject Plaintiff’s assertion that allegations of securitization necessarily give rise to joint venture and civil conspiracy claims and hold that MERS’ role in transferring loans was not unlawful based on the facts alleged.

Established in 1897, Nelson Mullins has more than 420 attorneys and government relations professionals practicing from 12 office locations in the District of Columbia, Florida, Georgia, Massachusetts, North Carolina, South Carolina, and West Virginia. For more information on the Firm, go to www.nelsonmullins.com, or call 803.255.9794.