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INFOLAWYER
INFOLAWYER, Attorney
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I am trying to determine the difference between negligence

Customer Question

I am trying to determine the difference between negligence and bad faith statements made
I have a situation where a holder of secured debt informed me they would not do something which would intercede on my behalf (seek to resolve matter, or make payment(s) on my behalf or both)
An employee of the institution (a manager of legacy loans) contacted me and asked me if I understood what was going on regarding a legal situation which they had the right to intercede in. I replied yes I was aware of the situation, and that I had denied owing the third party any money months earlier to which the secured party had notice of. He then asked me what was I doing about it. I told him that I was going to take legal action against the other party. I asked him what the secured party was going to do as it had full knowledge of the situation, and that it had a right to intercede. He informed me that the secured party would have nothing to do with this issue and that it does not get involved in these type of issues. He further stated that its interests are secured in any event should the third party prevail against me, and that I'd better move quickly because the third party can caused havoc and I would lose my interests.
Subsequent to this I filed my legal action and got a stay against the third party. Then the secured party, without notice made a payment (extravagant, and an amount not previously sought by third party) to third party during the pedency of the stay and on the return date to court was when I found out for the first time from the third party that the secured party paid.
I was and am not in agreement with the payment of any money and I was going to move for summary judgment as the third party minimally did not comply with its own contract regarding proper predicate notice( amongst myself, secured party, and third party) prior to moving to take underlying asset, inter alia.
In effect the secured party interfered with my lawful right which they had notice of the fact that I was taking legal action, and now said secured party wants to be refunded for the money it paid third party, or it will seek the underlying asset.
I received a notice that they would accelerate my loan so I want to move on an OSC/TRO in supreme in which one of my claims would either be bad faith or negligent behavior and statements of officers/managers which interfered with my lawful rights, and now has caused harm to the point of my possible loss of underlying asset which would not have occurred had litigation been allowed to follow its normal course or had secured party got involved at the outset. Its failure to get involved and waiting till it did without communicating a change in position has put me in an unenviable position with them now instead of the third party. Furthermore I never was demanded for the money they paid the third party and the amount paid ultimately represents three times what was owed the secured party prior to the payment.
Submitted: 17 days ago.
Category: Business Law
Expert:  Attorney2 replied 15 days ago.

Welcome to JA and thank you for your question. I will be the Attorney that will be assisting you.

Expert:  Attorney2 replied 15 days ago.

These terms are really very subjective which results in conflicting outcomes. I always use the court's own language to define terms.

In layman's terms Bad Faith requires fraud or deception, in other words it needs to be an intentional act.

Negligence is viewed as a mistake lacking the intention to defraud or deceive.

The difference between the two is the intent.

"Bad faith refers to dishonesty or fraud in a transaction, such as entering into an agreement with no intention of ever living up to its terms, or knowingly misrepresenting the quality of something that is being bought or sold. I t may involve an intent to deceive or mislead another in order to gain some advantage. It is often related to a breach of a the obligation inherent in all contracts to deal with the other parties in good faith and with fair dealing, such as in paying claims, or issuing a cancellation under an insurance policy. Insurers may be guilty of bad faith for failing to promptly and thoroughly investigate a claim, unreasonably delaying payment, unreasonably denying benefits to a claim, using unreasonable interpretations in translating policy language, or refusing to settle the case or reimburse you for the entirety of your loss, etc. Unless a time period for settling a claim is defined in the policy, a "reasonable time" generally applies, which is a subjective term, depending on the facts and circumstances in each case. Bad faith may also be claimed against a person who files suit solely for purposes of harassment. In this case, the defendant's attorney fees may be awarded if such bad faith motives are proven."

https://definitions.uslegal.com/b/bad-faith/

"...While fraud claims generally rely on a bad-faith intention by the defendant, a misrepresentation claim seeks to hold the defendant liable for the plaintiff’s damages even if the defendant did not intend to make the plaintiff do something that might be harmful or detrimental to her.

Misrepresentation may also be known as “innocent misrepresentation” or “negligent misrepresentation,” depending on the laws of the particular state that hears the case. In any misrepresentation case, the elements the plaintiff is required to prove typically include:

  • the defendant made a representation of a material fact as part of making a contract between the plaintiff and the defendant,
  • the representation was false when it was made,
  • the plaintiff would not have entered the contract if she had known the representation was false when it was made,
  • the plaintiff suffered a loss by entering into the contract, and
  • the plaintiff’s loss benefited the defendant.

The primary difference between misrepresentation cases and fraud cases is that, in a misrepresentation case, the defendant was either unaware that the material fact was false (innocent misrepresentation), or the defendant did not bother to find out whether the fact was false or true (negligent misrepresentation). In a fraud case, on the other hand, the plaintiff must generally prove that the defendant knew his false statement was false." http://www.rotlaw.com/legal-library/what-is-misrepresentation/

Expert:  Attorney2 replied 15 days ago.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. If you would be kind enough to rate my service so I will receive credit for my time and work I would appreciate it.

Thank you for using JA.

Customer: replied 15 days ago.
Ok, in the time I have been waiting I have looked a lot of this up and I agree but as it relates to the circumstances if
Statements of employee (manager of legacy loans)
Secured Party
Employee of secured party asks me what am I going or doing about the issue (Third Pary Cooperative seeking to sell shares of stock at Non Judicial foreclosure). To which I reply I am filing for an OSC/TRO in supreme court.
Employee advises me to be careful because these cooperative are dangerous
a) and employee makes statements on behalf of the organization which a reasonable person (emphasis added) would hold to be true
b) same employee clarifies that
* its employer will not be getting involved with this situation. They do not get involved with these situations
* its empoyer's interest are not at risk because if the underlying asset is sold (shares of stock, and underlying proprietary lease) it has a secured interest that the person(s) to whom it is sold must pay as the sale would be subject to secured parties, and
* that I would also be responsible for the outstanding loan balanceActions of Company
* Preface
a) Third Party (cooperative) sent notice of default
b) I sent response to notice of default as not owing any money sought to both coop and secured party
c) coop sent notice of termination to both parties (self and secured party)
d) cooperative sent another notice of termination because it accepted maintenance during the pendency of the first notice of termination to both parties
e) the cooperative sent notice of non judicial sale to both parties
f) secured party for the first time contacted me (see above Statements of employee (manager of legacy loans))* Secured party after the successful initiation of OSC/TRO by me (pro se) the secured party makes payment of amount of money never sought by cooperative to my knowledge.
* No notice of change of intent, or position was given to me.
* the judge signed the OSC/TRO after speaking with both sides in his chambers with the understanding that the respondent cooperative was going to provide me proof(s) of a variety of demands I made regarding their claim (which was just for money (added rents which I disputed).
* during that period of time the cooperative did not respond to any of my written requests
* unbeknownst to me the bank had paid the cooperative after the OSC/TRO was signed
* upon return to the court (return date) the cooperative for the first time revealed that the bank had paid and asked that the case be dismissed.
* the judge agreed
* I did not know what they paid or for what reason
* when I called the bank (secured party) they were not even aware till I drilled down and finally someone stated that a payment was made for escrow for insurance and taxes.
* after some back and forth I discovered that they paid over $6000 for each of two apartments (amount never sought by cooperative to me)
* for several months I have sought to get information but now the cooperative is emboldened and basically told me "where to go"
* the bank (secured party) wants its money back now and my claim is that I could have moved for summary judgment had they not intervened, when they said they would not, as that the respondent cooperative in the original case had not made service properly according to it s own pro forma proprietary lease, furthermore the cooperative did not have my share of stock, or a bona fide signed lease to prove its rights or other ownership interests to move for non judicial foreclosure, inter alia.Now the bank has sent me a notice of default and intent to accelerate and I want to file an OSC/TRO against them.
They never formally demanded the money
They seem to have added it to my mortgage statements as a negative amoritization, and an additional charge
I have been requesting documents from them in writing and filing complaints with the CFPB, and getting partial responses and in some cases other peoples files sent to me by accident I assume.
I am thinking this is minimally negligent servicing of my loan, and improper intervention into an existing case after stating they would not get involved. While the cooperative may have been unjustly enriched I was not the one who did it, so I probably have no standing.
Expert:  Attorney2 replied 15 days ago.

I am sorry that you waited so long for a response. The site asked me to assist you.

Based on what you stated above this is a CFPB situation. You can also contact ate Attorney General who has, to his credit, been unusually helpful in these situations.

The FTC and the OCC will also investigate. You are correct on standing. Give me a moment to provide links.

Expert:  Attorney2 replied 15 days ago.

AG

"If you believe you have been scammed by a foreclosure rescue operator or a debt relief organization, submit a complaint to the New York State Attorney General’s Office: www.ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint"

https://ag.ny.gov/consumer-frauds/help-homeowners

FTC: https://www.ftc.gov/

OCC/U.S. Department of the Treasury https://www.helpwithmybank.gov/complaints/index-file-a-bank-complaint.html

Expert:  Attorney2 replied 15 days ago.

Thank you for using JA!

Customer: replied 15 days ago.
You may be right however due to the fact that they sent me a 'Notice of Default Intent to Accelerate' which is due January 20th. I need to stay the action which could be a predicate lead to foreclosure by way of Non Judicial process. I need to know what legal response I may have like 1) negligent servicing of account (assuming lender has a legal right to intervene then why wait till the cooperative rings up amounts not previously sought and unsubstantiated) 2) the affect of making statements that are untrue by the Mortgagee to Mortgagor saying it does not get involved, 3) that fact that in all the banks replies to my demands for information from them is that "all negotiations must be done through it" yet it refused to get involved, 4) same bank acknowledged just recently that the person that contacted me made a mistake in not informing the legal staff that there was a dispute and is why they paid.
I need to know what my legal arguments are as that the other agencies (i.e. a just " data aggregaters" and they never take a specific case...they look for trends) I need to stop this action before it gets out of hand, while possibly complaining to these other organizations you cited.
Expert:  Attorney2 replied 15 days ago.

I can provide a motion to stay the foreclosure, I cannot provide the specific grounds that you would use as pursuant to the terms of the site the Attorneys on the site can only provide general information.

Customer: replied 15 days ago.
I guess you mean "you can't". This I know, however I am asking what are the general legal arguments against this type of action. (e.g. you may file an OSC with TRO, it would seem that based upon what you told me the bank is in violation of XYZ, etc.. in NY)
Expert:  Attorney2 replied 15 days ago.

I was stating that I can only provide general information. Sorry for any confusion in my wording.

https://livinglies.wordpress.com/2008/04/28/foreclosure-defense-emergency-pleading/

Expert:  Attorney2 replied 15 days ago.

Motions to stay a foreclosure proceeding can be based on a pending loan modification improper notice, that you are trying to work out a short sale, you have the money owed, you are in the middle of refinancing your home with a loan that will cover the mortgage and other costs, you have filed for bankruptcy. https://www.nycourts.gov/courthelp/Homes/foreclosureJudgments.shtml

Customer: replied 15 days ago.
That has no relevance to this. The Bank is seeking reimbursement of money it paid on my behalf. My argument inter alia is that they had no business getting involved especially in light of fact that they stated they would not do so, and ultimately interfered with my due process rights to litigate the case with the cooperative to which I was given a OSC/TRO stay.
Expert:  Attorney2 replied 15 days ago.

As I stated I cannot response to your particular case. You can certainly use the fact that misrepresentations were made, this is fraud.

Customer: replied 15 days ago.
I do not understand...I have been posting questions about instances that involve me for years on this site. are you saying that people should just be posting theoretical questions that have nothing to do with there personal legal concerns to lawyers on this site. That is totally contradictroy to what has in fact been going on and what the site is here for
Expert:  Attorney2 replied 15 days ago.

Let me show you our rules. One moment please.

Expert:  Attorney2 replied 15 days ago.

"7. Information Not Advice; No Client-Professional Relationship
Answers of Experts on the Site are provided by Experts and are to be used by Customers for general information purposes only, not as a substitute for in-person evaluation or specific professional (medical, legal, veterinary, tax, financial, etc.) advice.For example, Experts in the Legal category will provide only general information about the law, and will not provide legal advice nor propose a specific course of action for a Customer. By answering questions, Experts do not intend to form, and do not form attorney-client or doctor-patient relationships with Users of the Site. The laws, regulations, other governing authorities, standards, practices and procedures that apply to your particular question may differ depending on your location and information typically discovered through in-person evaluations or visits. Experts in some categories may be licensed, certified, educated, employed by or have experience in only particular jurisdictions.

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Communications on this Site are not confidential and shall not be the subject of any associated privileges. Communications on this Site are limited, as described above, do not involve in-person evaluations or visits, and do not include safeguards and procedures typical of in-person evaluations and visits.

Before you can interact with an Expert, you will be required to agree to a Disclaimer reminding you of these and other important provisions of the Terms." http://ww2.justanswer.com/terms-service-0

I can provide more examples if that will help.

Expert:  Attorney2 replied 15 days ago.

Motion to stay based on

"1. Service of process

2. Conditions precedent to suit: statutory notices and acceleration notices

3. Standing and capacity to sue

4. Banking Law 6-L and 6-M

5. Truth in Lending Act & HOEPA

6. Equitable defenses: HAMP, FHA, unclean hands

7. Fraud" http://www.nycla.org/PDF/White%20Collar%20Crime%20Book%20MORTGAGE%20FRAUD.pdf

Expert:  Attorney2 replied 15 days ago.

I am trying to provide enough information that will assist you in moving forward on a motion to Stay. The AG can actually contact the lender and advocate for you. I found that the office is very receptive and helpful.

Customer: replied 15 days ago.
Ok now how do each of these items you set forth apply to my situation. I am not asking for legal advise or with the understanding that you are representing me.I have presented the issues.I am asking, as a laymen, what the legal arguments "may be" emphasis added based upon what you have been given by me.
You made a general statement of fraud... this is a pervasive and expansive point. It needs to be narrowed down for a laymen to understand given the circumstancesYou have sitedwhat does that mean given the circumstance what is the statutory point of law you are talking to?1) Service of process -2. Conditions precedent to suit: statutory notices and acceleration notices3. Standing and capacity to sue4. Banking Law 6-L and 6-M5. Truth in Lending Act & HOEPA6. Equitable defenses: HAMP, FHA, unclean ha7. FraudDuring my response above I saw you sent another answer :You stated:
I am trying to provide enough information that will assist you in moving forward on a motion to Stay
To help me you need to be more specific without giving me legal advise. The information you gave is just general with no understanding that a laymen could draw a reasonable conclusion of what to do, and how.
That is why real world questions are asked.It would be much easier if you just said something along the lines of'
'if what you are stating is ABC then it seems like the lender has done DCE. The lender may do the following etc.. , however I find it interesting and somewhat concerning that the lender did this and not that etc. and you may have an argument for jkl.Then I would reply to you to clarify some things and the dialog would be meaningful without you ever being concerned that you went beyond your responsibilities, or otherwise. I think if you read my other posts all the attorneys understand this.The AG can actually contact the lender and advocate for you.
So What is the AG's contact number, and what department ... time is of the essence?
Expert:  Attorney2 replied 15 days ago.

"Bureau of Consumer Frauds & Protection

The Bureau of Consumer Frauds and Protection, part of the Economic Justice Division, prosecutes businesses and individuals engaged in fraudulent, misleading, deceptive or illegal trade practices.

In addition to litigating, the Bureau mediates thousands of complaints each year from individual consumers.

A large percentage of these complaints are resolved satisfactorily through the mediation process. As part of its mission, the Bureau provides information to consumers and seeks to ensure a fair and vigorous market place. The Bureau also drafts legislation and conducts studies and writes reports on emerging consumer problems and issues.

Consumer Helpline: 1-***-***-****" http://oag.state.ny.us/bureau/consumer-frauds-bureau

If you believe you have been scammed by a foreclosure rescue operator or a debt relief organization, submit a complaint to the New York State Attorney General’s Office: www.ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint http://oag.state.ny.us/consumer-frauds/help-homeowners

Expert:  Attorney2 replied 15 days ago.

I would use fraud based on your statements:

They never formally demanded the money
They seem to have added it to my mortgage statements as a negative amoritization, and an additional charge
and in some cases other peoples files sent to me by accident I assume.

I have dealt with all of those issues. One was with B of A. I have 28 years of practice in this area of law.

Expert:  Attorney2 replied 15 days ago.

Forms of mortgage fraud:

https://www.nyccriminallawyer.com/fraud-charge/mortgage-fraud/

This also falls under deceptive business practices http://codes.findlaw.com/ny/general-business-law/gbs-sect-349.html

Expert:  Attorney2 replied 15 days ago.

Motion to Stay Foreclosure Proceeding based on fraud, misrepresentation and predatory lending practices. You can also base the motion to Stay on a response from the AG or based on working with CFPB.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it.

The site does not credit the Attorneys unless the customer rates our service positively. Thank you for your consideration. Please me know if you were unhappy with my service and I will opt out for another Attorney to assist you.

Customer: replied 15 days ago.
Ok now we are getting somewhere
I) One of your sites talks to Mortgage assignment fraud, which may be the case here. I have asked for documents depicting (Bayviews) proper ownership interests other than UCC filings as such are purely ministral in filing, and administration. They have not been able to provide anything other than the original banks loan terms and loan security document. They state that they are one of the assignors in the sucession (in fact it seem like from UCC filings Empire then to RTC, then to Duetche Bank / GMAC, then to Bayview) I demanded to see the proof of assignment from Duetche Bank / GMAC and have not received instead they sent, in addition to the documents of Empire some document stating in a very general fashion the M&T Bank formally Empire Savings Bank assigned to Bayview its interest in a loan (no loan number(s) or names to such) The problem with that is M&T was never on any UCC, nor did I ever pay M&T nor does it make sense that M&T could have assigned the loan(s) to Bayview as the UCC's state that Duetchebank / GMAC was Bayview successor.II) Furthermore, back in 2012 and 2015 somehow one of my loans was paid off. Their statements reflect it. Then they still billed me and I asked them why and what happened. They asked me if I made a payment in 2012 to pay off loan and I said no. They said someone, or some how it was. They still demanded payments and I demanded proof of the payment and proof that it was not for my account. They refused the 2012 demand. I just noticed in 2015 this happened again. No explaination however they have only chosen to move with their "notice of default and acceleration" against the other one right now. I do not know why.III) Furthermore you have not given me specifics on the AG contact ...or I am not so sure how they can interact at this point to stay the acceleration, or to be used as a reason the judge should stay the action under CPLR 6301 (there also must be a likelihood of success...which I must contemplate) ?
Also could Bayview state (as they have stated to me to get the money back from the coop) that the coop should be part of the pleadings (I do not believe I have standing as that the bank paid them...they are the one's who should sue for unjust enrichment or otherwise..my slate is clean because of the mistakes or otherwise of Bayview)IV) Furthermore you have not explained how the items you cited are applicable other than Fraud:1) Service of process -2. Conditions precedent to suit: statutory notices and acceleration notices3. Standing and capacity to sue4. Banking Law 6-L and 6-M5. Truth in Lending Act & HOEPA6. Equitable defenses: HAMP, FHA, unclean handsV) Is there a legal phrase "negligence of service" to refer to negligent behavior of a loan servicer that could be used?VI) what about the statements that were made by the bank legacy loan manager to me, and how would this be of benefit legally:
(copied from my pro forma OSC --- currently working on)
Defendant, BLS contacted Plaintiff by phone in early to mid May 2016 questioning and informing same
a) was Plaintiff aware of Non Judicial Foreclosure, and if so what was Plaintiff doing(?),
b) when apprised that Plaintiff was fully aware, and was moving for OSC/TRO
c) Plaintiff asked what Defendant BLS was doing(?)
d) same Defendant BLS stated that it was not getting involved in the dispute as it does not get involved with these type of issues
e) same Defendant went on to state that Plaintiff better move quickly because coop would take Plaintiffs ownership interests of shares, and underlying lease
f) when Plaintiff asked Defendant why it would not protect its asset, same replied
g) BLS interests are secure in that should the coop move forward then its sale of shares, and lease would subject any prospective purchaser to BLS’s underlying secured loan interests,
h) Plaintiff would still owe the outstanding balance on loan to BLS, and thati) the amount sought by coop is significantly more than what is owed on loan it would not get involved.
Expert:  Attorney2 replied 15 days ago.

We have gone beyond your question:

"I am trying to determine the difference between negligence and bad faith statements made

I have a situation where a holder of secured debt informed me they would not do something which would intercede on my behalf (seek to resolve matter, or make payment(s) on my behalf or both)"

There is a code of ethics that governs financial institutions:

"Misrepresentation is more than mere “puffing,” which is an opinion that is not necessarily intended as a representation of fact, such as “best customer service in town!” When a misrepresentation is made to a consumer with the intent to deceive, it is a form a fraud and can result in prosecution. Note that written disclosures or fine print in an ad may not be sufficient to correct a misleading representation. Sometimes, a misrepresentation may be made unintentionally or through negligence. While not necessarily actionable fraud, obviously a mortgage professional has an obligation to consumers to be factually accurate in all communication. Either way, misrepresentation is serious, especially when it involves material facts.

When claiming fraud or deception, it may not be necessary to prove that the person to which the deliberate misstatement, misrepresentation, or omission was made was harmed financially in the transaction or relied upon such misstatement, misrepresentation, or omission to make a decision in the transaction. This brings us to the next key concept: What is a “material fact”? A material fact is generally defined as one that, if known, might have caused a reasonable consumer to make a different decision. For example, when offering a mortgage loan, material facts may include:

• Annual percentage rate

• Length of loan term • Fixed or adjustable interest rate

• Origination fees or other closing costs

• Prepayment penalties " https://mortgage.fastclass.com/docs/mortgage/MLPP4e_Ch13_PP.pdf

The Real Estate Settlement Procedures Act set out the rules and regulations for financial institutions as well as realtors and others involved in the purchase and sale of real property. https://portal.hud.gov/hudportal/HUD?src=/hudprograms/respa

It would be my to continue working with you in a new question or under additional services. Thank you.

Customer: replied 15 days ago.
I do not think we are going beyond the scope of the initial question. Because of the back and forth in not answering the question we finally got to a point where you started to but gave minimal clarity.example above:
There were six numbered items to your response which finally had substance. This is the normal course.
Now you have not answered them but to the point you gave:What happens if the representation is wrong by the employee but there was no malice intended just negligence (intentional or otherwise)?When you answer the questions in context for a laymen then the conversation engages. You started ...there is no reason to stop. The fact that you know who the secured party is...is only because you mentioned BofA.That in no way changed the initial question.
Please finish...you brought up the items in response...now I need clarfication
Expert:  Attorney2 replied 15 days ago.

I have opted out for another attorney to assist you. I brought up options to assist you not to turn this into a legal analysis of every possibility available to you. Thank you for using JA!

Expert:  INFOLAWYER replied 6 days ago.
Did the statements cause injury?
Customer: replied 6 days ago.
the secured party has the right to intervene and resolve.
First the fact that they had written notice in February 2016, in response to Cooperative Notice if Default, and said and did nothing until May when the secured party, BLS, stated it would not placed me in a position where no assistance was coming from them. I was on my own. At the point they interjected the amount sought was greater, there was no such demand made upon me, and it was totally unsubstantiated. It further interfered with my due process rights as I filed an OSC / TRO which the judge signed and the secured party was informed by me that I was filing back in May before they paid cooperative.
The secured party states thst it checked it's voice msg recordings and acknowledges the conversation but says the manager spoke incorrectly, and thst all negotiations must go through them to whichave my reply is that would have been fine if you did it that way but you said 'you would not get involved'. I have received no answer to that or various other requests.
Expert:  INFOLAWYER replied 5 days ago.

Negligence amounts to a breach of duty of care resulting in injury.

Bad faith statements are a form of negligence resulting generally from false and and harmful statements made with mal intent. Bad faith then also has an intent element to it that negligence may be the result of pure mistake.

Customer: replied 5 days ago.
Isn't there unintentional acts of bad faith, or negligence by a person who should have knowledge and same mskes, and takes conflicting positions contrary to what he said (i.e. BLS will not get involved, then BLS does get involved and makes payments which are not substantiated. ..just asking for a ledger, and a W-9)
All this during the pendent of a TRO on the Coop?
Expert:  INFOLAWYER replied 4 days ago.

Normally need intent, but if one is reckless or disregards ***** ***** bad faith can be established that way too!

Good luck. Kindly rate me 5 stars. Much appreciated