Malik W. Ahmad

Archive for April, 2009|Monthly archive page

Foreclosure: All over USA:

In Loan Modification on 04/26/2009 at 3:25 am

In Florida Despair all over:

Trying to help financially troubled homeowners:

Nevada Deceptive Trade Practices

In Uncategorized on 04/26/2009 at 1:39 am

Everyday many homeowners are coming to my office, seeking help from the predators who had made them victims in various ways; by promising them to lower their debts; by promising them to restructure their debts; by promising to lower their interest and principal. I have heard innumerable heart broken stories. In this posting, I would highlight some of the laws which are enforceable in Nevada statute books and can be used to catch these criminals. Again, it is advisable to seek a qualified and licensed attorney in addressing your particular issues.
Most of these deceptive trade laws are contained in NRS 598.741
1. “Buyer” means a natural person who is solicited to purchase or who purchases the services of an organization which provides credit services.
2. “Commissioner” means the Commissioner of Consumer Affairs.
3. “Division” means the Consumer Affairs Division of the Department of Business and Industry.
4. “Extension of credit” means the right to defer payment of debt or to incur debt and defer its payment, offered or granted primarily for personal, family or household purposes.
5. “Organization”:
(a) Means a person who, with respect to the extension of credit by others, sells, provides or performs, or represents that he can or will sell, provide or perform, any of the following services, in return for the payment of money or other valuable consideration:
(1) Improving a buyer’s credit record, history or rating.
(2) Obtaining an extension of credit for a buyer.
(3) Providing counseling or assistance to a person in establishing or effecting a plan for the payment of his indebtedness, unless that counseling or assistance is provided by and is within the scope of the authorized practice of a debt adjuster licensed pursuant to chapter 676 of NRS.
(4) Providing advice or assistance to a buyer with regard to subparagraph (1) or (2).
(b) Does not include: [As you can see, only licensed attorneys should modify, restructure a loan or do any credit advice] (1) A person organized, chartered or holding a license or authorization certificate to make loans or extensions of credit pursuant to the laws of this state or the United States who is subject to regulation and supervision by an officer or agency of this state or the United States.
(2) A bank, credit union or savings and loan institution whose deposits or accounts are eligible for insurance by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund or a private insurer approved pursuant to NRS 678.755.
(3) A person licensed as a real estate broker by this state where the person is acting within the course and scope of that license, unless the person is rendering those services in the course and scope of employment by or other affiliation with an organization.
(4) A person licensed to practice law in this state where the person renders services within the course and scope of his practice as an attorney at law, unless the person is rendering those services in the course and scope of employment by or other affiliation with an organization.
(5) A broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission where the broker-dealer is acting within the course and scope of such regulation.
(6) A person licensed as a debt adjuster pursuant to chapter 676 of NRS.
(7) A reporting agency.
6. “Reporting agency” means a person who, for fees, dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the business of assembling or evaluating information regarding the credit of or other information regarding consumers to furnish consumer reports to third parties, regardless of the means or facility of commerce used to prepare or furnish the consumer reports. The term does not include:
(a) A person solely for the reason that he conveys a decision regarding whether to guarantee a check in response to a request by a third party;
(b) A person who obtains or creates a consumer report and provides the report or information contained in it to a subsidiary or affiliate; or
(c) A person licensed pursuant to chapter 463 of NRS.
Section NRS 598.746 deals with Prohibited acts: Receiving money before complete performance; receiving money for referral to provider of credit; misleading statements; other fraudulent or deceptive acts. An organization and its agents, employees and representatives who sell or attempt to sell the services of the organization, shall not:
1. Charge or receive any money or other valuable consideration before full and complete performance of the services the organization has agreed to perform for or on behalf of the buyer.
2. Charge or receive any money or other valuable consideration solely for referral of the buyer to a retail seller who will or may extend credit to the buyer, if the credit which is or will be extended to the buyer is upon substantially the same terms as those available to the general public.
3. Make, counsel or advise any buyer to make, any statement which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, to a consumer credit reporting agency or to any person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit, with respect to a buyer’s creditworthiness, credit standing or credit capacity.
4. Make or use any untrue or misleading representations in the offer or sale of the services of an organization. For the purposes of this subsection, a “misleading representation” includes a guarantee that:
(a) The organization is able to remove information that is adverse to the buyer’s ability to obtain credit from the buyer’s credit record, history or rating.
(b) The organization is able to obtain an extension of credit for the buyer regardless of the buyer’s existing credit record, history or rating.
5. Engage, directly or indirectly, in any act, practice or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of an organization.
6. Remove, or assist or advise the buyer to remove from the buyer’s credit record, history or rating, information that is adverse to the buyer’s ability to obtain credit if the information is accurate and not obsolete.
7. Create, or assist or advise the buyer to create a new credit record, history or rating by using a different name, address, social security number, employee identification number or other misleading information.
8. Attempt to transfer or assign the organization’s certificate of registration.
9. Submit a buyer’s dispute to a consumer credit reporting agency without the buyer’s knowledge.
10. Call, or authorize any other person who is not the buyer to call a consumer credit reporting agency and portray himself as the buyer.

NRS 598.752 Organization to register and deposit security before advertising services or conducting business in this State; separate security not required from salesperson, agent or representative of organization; regulations.
1. Before advertising its services or conducting business in this State, an organization must register pursuant to NRS 598.721 and deposit security in the amount of $100,000 with the Division pursuant to NRS 598.726. The security must be conditioned on compliance by the organization with the provisions of NRS 598.746 to 598.772, inclusive, and the terms of its contracts with buyers.

2. If an organization has deposited the required security, a salesperson, agent or representative of the organization who sells its services is not required to deposit his own separate security. For the purposes of this subsection, a person is a salesman, agent or representative of an organization if:

(a) He does business under the same name as the organization; or

(b) The organization and the issuer of the security certify in writing that the security covers the salesperson, agent or representative.

3. The Division shall adopt such regulations as it deems necessary to carry out the provisions of this section.

NRS 598.757 Organization to provide buyer certain information in writing.
1. Before the execution of a contract between the buyer and an organization or before the receipt by the organization of any money or other valuable consideration, whichever occurs first, the organization must provide to the buyer, in writing:
(a) A statement:
(1) That the buyer has a right pursuant to 15 U.S.C. §§ 1681g and 1681h to receive disclosure of all information, except medical information, in any file on him maintained by a consumer credit reporting agency;
(2) That 15 U.S.C. § 1681j requires that this disclosure be made free to the buyer if he requests it within 30 days after receipt of notice of a denial of credit;
(3) Of the approximate cost to the buyer of receiving this disclosure when there has not been a denial of credit; and
(4) That the buyer has the right pursuant to 15 U.S.C. § 1681i to dispute the completeness or accuracy of any item contained in any file on him maintained by any consumer credit reporting agency.
(b) A detailed description of the services to be performed by the organization for the buyer and the total amount the buyer will become obligated to pay for the services.
(c) A statement that the buyer has a right to proceed against the security deposited with the Division by the organization under the circumstances and in the manner set forth in NRS 598.731 and 598.736. The statement provided pursuant to this paragraph must include the name and address of the issuer of the security.
(d) A statement that the buyer may cancel a contract for the services of an organization within 5 days after its execution by written notice mailed or delivered to the organization.
(e) A statement identifying the availability of any nonprofit association which provides services similar to those offered by the organization. The statement provided pursuant to this paragraph must include the association’s telephone number, including the association’s national toll-free telephone number, if any.
2. The written information provided pursuant to subsection 1 must be printed in at least 10-point bold type and must include the following statement or a similar statement approved by the Division:
RIGHTS OF CONSUMERS REGARDING CREDIT FILES
PURSUANT TO STATE AND FEDERAL LAW

You have the right to obtain a copy of your credit file from a consumer credit reporting agency. There is no fee if, within the past 30 days, you have been turned down for credit, employment or insurance because of information in your credit report. The consumer credit reporting agency is obligated to provide someone to help you interpret the information in your credit file.

You have a right to dispute inaccurate information by contacting the consumer credit reporting agency directly. However, neither you nor any credit service organization has the right to have accurate, current and verifiable information removed from your credit report. Generally, under the Fair Credit Reporting Act, the consumer credit reporting agency is obligated to remove accurate, negative information from your report only if it is more than 7 years old and bankruptcy information can be reported for 10 years. If you have notified a credit reporting agency that you dispute the accuracy of information in your credit file, the consumer credit reporting agency is obligated to make an investigation and modify or remove inaccurate information. The consumer credit reporting agency may not charge a fee for this service. Any relevant information and copies of all documents you have concerning the disputed information should be given to the consumer credit reporting agency. If the investigation does not resolve the dispute to your satisfaction, you may send a brief statement to the consumer credit reporting agency to keep in your credit file, explaining why you think the information in the credit file is inaccurate. The consumer credit reporting agency is obligated to include your statement or a summary of your statement about disputed information in any report it issues about you.

RIGHTS OF CONSUMERS REGARDING
CANCELLATION OF A CONTRACT

You have a right to give written notice of your intent to cancel a contract with a credit service organization for any reason within 5 working days from the date you signed it. If for any reason you do cancel a contract during this time, you do not owe any money. You have a right to sue a credit service organization if it misleads you.
3. The organization shall retain a copy of the written information it provides pursuant to the requirements of subsections 1 and 2 for not less than 2 years.

NRS 598.762 Requirements of contract for purchase of services; copy of contract must be retained by organization.
1. A contract between a buyer and an organization for the purchase of the services of the organization:
(a) Must be in writing;
(b) Must be signed by the buyer;
(c) Must be dated; and
(d) Must clearly indicate above the signature line that the buyer may cancel the contract within 5 days after its execution by giving written notice to the organization of his intent to cancel the contract. If the notice is mailed, it must be postmarked not later than 5 days after the execution of the contract.
2. A copy of each contract executed by a buyer and an organization must be retained by the organization for not less than 2 years.

NRS 598.767 Organization to maintain registered agent for service of legal process. An organization shall file with the Division the information required pursuant to NRS 77.310 and continuously maintain a registered agent for service of legal process.

NRS 598.772 Waiver of statutory rights prohibited; burden of proof upon person claiming exemption or exception from definition.

1. Any waiver by a buyer of the provisions of NRS 598.746 to 598.777, inclusive, is contrary to public policy and is void and unenforceable. Any attempt by an organization to have a buyer waive rights given by NRS 598.746 to 598.777, inclusive, is unlawful.

2. In any proceeding involving NRS 598.741 to 598.787, inclusive, the burden of proving an exemption or an exception from a definition is upon the person claiming it.

(Added to NRS by 1987, 1520; A 1993, 2277)—(Substituted in revision for NRS 598.286)

NRS 598.777 Buyer’s action for recovery of damages or injunctive relief; attorney’s fees; punitive damages. A buyer injured by a violation of NRS 598.746 to 598.772, inclusive, or by a breach by an organization of a contract subject to those sections, may bring an action for recovery of damages, for injunctive relief or for both recovery of damages and injunctive relief. Judgment for damages must be entered for actual damages, but in no case less than the amount paid by the buyer to the organization, plus reasonable attorney’s fees and costs. If the court deems it proper, the court may award punitive damages.

(Added to NRS by 1987, 1520; A 1993, 2277)—(Substituted in revision for NRS 598.287)

NRS 598.782 Criminal penalty.
1. Except as otherwise provided in subsection 2, a person who violates any provision of NRS 598.746 to 598.772, inclusive, is guilty of a misdemeanor.
2. A person who breaches a contract subject to NRS 598.746 to 598.772, inclusive, is not guilty of a misdemeanor solely because of the breach.
NRS 598.787 Provisions and remedies not exclusive; violation constitutes deceptive trade practice.
1. The provisions of NRS 598.746 to 598.777, inclusive, are not exclusive and do not relieve the parties or the contracts subject thereto from compliance with any other applicable provision of law.
2. The remedies provided in NRS 598.772 and 598.777 for violation of any provision of NRS 598.746 to 598.772, inclusive, are in addition to any other procedures or remedies for any violation or conduct provided for in any other law.
3. Any violation of NRS 598.746 to 598.772, inclusive, constitutes a deceptive trade practice for the purposes of NRS 598.0903 to 598.0999, inclusive.

NRS 598.900 Untrue or misleading statements by organization prohibited; effect on contract. An organization shall not make any untrue or misleading representations to the buyer or in its advertising. A contract for membership in an organization where any untrue or misleading representation was made to the buyer or the buyer was made aware of the untrue or misleading representation is void and unenforceable by the organization.

NRS 598.905 Correction of violations. If an organization does not comply with the provisions of NRS 598.840 to 598.895, inclusive, or 598.905 to 598.930, inclusive, the buyer may agree in writing, after a full disclosure, to any correction of the defect if the correction is made within 30 days after he signs the contract for membership in the organization. If the buyer does not consent, or if the correction is not made within the 30-day period, the contract is rescinded, and the buyer must be given a full refund.

NRS 598.910 Effect of transfer by organization of its obligation to provide goods or services; circumstances under which buyer may rescind contract.

1. If an organization transfers its obligation to provide goods or services to a buyer to another organization which provides substantially fewer goods or services, the buyer may consent to the transfer in writing after a full disclosure to him of the goods and services to be provided by the new organization. If a buyer does not consent, his contract is rescinded, and he must be given a refund pro rata based on the amount of time he was a member of the organization.

2. The buyer may rescind the contract and the organization shall give him a refund pro rata based on the amount of time he was a member of the organization if any of the following circumstances occur:

(a) Except as otherwise provided in this paragraph, the organization moves its place of business which is geographically closest to the buyer’s residence, as indicated in the contract, more than 20 miles farther from the buyer’s residence than it was when the contract for membership was signed. The provisions of this paragraph do not apply if:

(1) The organization offers the buyer a substantially equivalent at-home ordering service through at least one other generally available channel of communication, including, without limitation, the Internet;

(2) The at-home ordering service offers the same categories of goods and services provided by the organization at the time the organization moves its place of business; and

(3) Any goods ordered by the buyer through the at-home ordering service are shipped, at the election of the buyer, to either the buyer’s residence, as indicated in the contract, or a freight receiver within 20 miles of that residence.

(b) Within 6 months after the contract for membership was signed, the organization stops providing any category of goods or services represented to the buyer to be available when he signed the contract.

NRS 598.915 Waiver of statutory rights is void. Any waiver by the buyer of the provisions of NRS 598.840 to 598.930, inclusive, is contrary to public policy and void.
NRS 598.920 Actions against organization; restitution, treble damages, attorney’s fees and costs may be awarded.
1. A cause of action or a defense of a buyer against the organization is not extinguished by the transfer, assignment or sale of the contract for membership in the organization to a third party.

2. In an action by a buyer against an organization for violation of the provisions of NRS 598.840 to 598.930, inclusive, the court may award restitution, treble damages, reasonable attorney’s fees and costs. If the course of action was based on a violation of NRS 598.900, the court may award the buyer $1,000, reasonable attorney’s fees and costs, or restitution, treble damages, reasonable attorney’s fees and costs, whichever is greater.

NRS 598.930 Remedies not exclusive; violation constitutes deceptive trade practice.
1. The remedies, duties and prohibitions of NRS 598.840 to 598.930, inclusive, are not exclusive and are in addition to any other remedies provided by law.

In Case You Walk Away From Your Home?

In Loan Modification on 04/21/2009 at 4:51 pm

I have been asked many time the consequences of “walking away” from your home. Here, is an interesting article discussing all the aspects of this common phenomenon in our society.

Complaint to Enjoin Foreclosure (Education Purposes Only)

In Uncategorized on 04/16/2009 at 11:20 am

<em>This is a sample complaint to enjoin your impending foreclosure and it is meant for only education purposes in this foreclosure crisis facing the state of Nevada. Again, and as usual, please consult a Nevada Licensed Attorney for any further questions.

[Names of attorneys]
[Attorneys' business address]

District Court
Clark County, Nevada
[Plaintiff's name],
Plaintiff,
vs.
[Defendant's name],
Defendant )
)
)

) Case No.: [Case number]

[Pleading title]

COMPLAINT
Plaintiff, complaining of the defendants and in support of her motion for injunctive relief, alleges as follows:
Nature of Action
1. Plaintiff brings this action for damages and to enjoin a foreclosure proceeding instituted against her by the current holder of her mortgage loan, JJJ.P. Morgan Chase Bank. She contends that the originator of the loan in question, R & B Funding Group, Inc. acted unlawfully in connection with the origination of a mortgage loan made to her in April, 2006 by failing to comply with Nevada laws prohibiting the financing of fees in excess of five percent of the loan amount, and by failing to ensure that she was provided with financial counseling prior to consummating this “high cost” loan. Plaintiff further contends that Royal Mortgage & Financial Service Centers, Inc. which served as her mortgage broker, breached its fiduciary duty to her. Plaintiff further alleges that the practices of R & B Funding Group, Inc. as well as New Royal Mortgage & Financial Service Centers, Inc. constituted unfair and deceptive practices.
Parties
2. Plaintiff is a citizen and resident of the town of Consumerville in Las Vegas, Nevada.
3. Defendant, R & B Funding Group, Inc., D/B/A National Builders (hereinafter “R & B”) is, upon information and belief, a Nevada Corporation and originated Plaintiff’s mortgage loan together with a mortgage broker, Royal Mortgage & Financial Service Centers, Inc., pursuant to arrangements made by R & B.
4. Defendant, JJJ.P. Morgan Chase Bank (hereinafter “J.P. Morgan”), is, upon information and belief, the creditor and/or the trust administrator of a trust that is assignee of Plaintiff’s loan, or otherwise holds Plaintiff’s loan.
5. Defendant New Royal Mortgage & Financial Service Centers, Inc. (hereinafter “Royal Mortgage”), is, upon information and belief, a corporation organized under the laws of North Carolina and performed mortgage brokerage and/or loan origination services pursuant to arrangements made by R & B at times pertinent to the events referenced in this complaint.
6. Defendants XXXXXXXXXXX and XXXXXXXX are parties to this action only in their capacity as Substitute Trustees of Plaintiff’s Deed of Trust, and the only relief sought against Defendant Weld and/or Smith is injunctive relief enjoining foreclosure of the deed of trust.
Factual Allegations
7. Plaintiff XXXXXXX is an 76-year-old widow. She is in failing health and has limited understanding of financial transactions, including the instant transaction.
8. Consumer lives in a modest home on Main Road in Consumerville, in North Las Vegas, Nevada. She and her late husband purchased this home almost fifty years ago, and she has lived there ever since.
9. In the spring of 2003, Consumer’s son, Son Consumer contacted a mortgage broker about refinancing Consumer’s existing mortgage. At that time, Consumer’s home was secured by a mortgage with Bank of America, Inc.
10. On information and belief, John Consumer contacted an individual named Steve Smith, who, upon information and belief, was employed by Defendant mortgage broker Royal Mortgage.
11. Sometime in March or April 2003, XXXXXXX Smith contacted Consumer by calling her on the telephone and informed her that he would arrange for the refinancing of Plaintiff’s home loan.
12. Steve Smith took information from Plaintiff over the telephone concerning her finances, and upon information and belief, prepared loan application documents for Plaintiff in order to secure a loan with Defendant R & B.
13. At all times relevant hereto, Steve Smith was an employee and agent of defendant Royal Mortgage.
14. Upon information and belief, all contacts with Steve Smith and/or Royal Mortgage, were transacted over the telephone.
15. On approximately April 18, 2003, a loan closing was conducted in Consumer’s living room. On information and belief, a representative from the law firm of Brock, Scott & Ingersoll went to Consumer’s home and asked her to sign many documents. Upon information and belief, Defendant R & B, and not Consumer, selected this law firm to be the settlement agent in this transaction.
16. At the time that the loan closed, Consumer signed a HUD-1 Settlement Statement dated April 18, 2002, which listed the various loan related expenses.
17. The amount of the loan was $37,000.00.
18. Among the various fees charged in connection with Plaintiff’s loan included a “loan origination fee” of $395, a “mortgage broker fee” of $1424.50, a “settlement fee” of $100, a “title search” fee of $425, a “lender amount” of $35, and a “doc prep” fee of $100.
19. According to the Federal Truth-in-Lending Act Disclosure Statement signed at the closing, Consumer was to pay monthly payments of $298.50 for 30 years. The total of payments as disclosed is $107,460.00.
20. The total of points and fees paid by plaintiffs at or before the loan closing exceeded 5% of the “total loan amount,” as that term is defined by NRSXXXXXX were financed within the loan.
21. The loan was secured against title to plaintiff’s principal dwelling, located at Main Road, Consumerville, North Carolina, by a Deed of Trust which is recorded in Book 00 at Page 00 of the Orange County Registry.
22. The proceeds of the loan were primarily for personal, family, or household purposes.
23. Plaintiff was not advised that the loan was a “high cost-home loan” as defined in NRSXXXXX.
24. Upon information and belief, no party to the transaction received a certification from a counselor approved by the Nevada Housing Finance Agency verifying that plaintiff had been counseled as to the advisability of the loan transaction.
25. Plaintiff was not counseled by a counselor approved by the North Carolina Housing Finance Agency as to the advisability of the loan transaction.
26. Defendant, R & B had a duty to inform plaintiff that the loan transaction was a “high-cost home loan” and, as such, that this loan required the various counseling protections and safeguards embraced by Chapter 24 of the North Carolina General Statutes.
27. Defendant, R & B breached this duty and the plaintiff was directly, proximately and foreseeably damaged by the breach of this duty.
28. Upon information and belief, defendant Royal Mortgage did not provide bona fide or legitimate mortgage broker services to plaintiff, even though plaintiff was charged $1424.50 by defendant, Royal Mortgage, for mortgage broker services.
29. The loan transaction in question was intended to refinance Plaintiff’s then existing first mortgage with Bank of America in the amount of $26,635.37, as indicated by line 1513 on the HUD-1 Settlement Statement. On information and belief, a check was disbursed by the closing agent three days after the loan closing to Bank of America, but said check was neither cashed nor applied to Plaintiff’s mortgage account at Bank of America. Bank of America did not satisfy the deed of trust, but instead continued to withdraw monthly payments from Plaintiff’s checking account and applied them to her old mortgage account. Plaintiff attempted to make payments to the servicer of the mortgage that is the subject of this action, but as money was being withdrawn from her checking account each month by Bank of America, her checks on the new mortgage bounced.
30. On or about October 17, 2002, Defendant J.P. Morgan Chase Bank as Trustee, through its substitute trustee, Defendants Weld and/or Smith, filed a foreclosure action against the plaintiff, alleging that the plaintiff is in default in payments under the terms of the April 2002 loan contract. The foreclosure action is filed as 02 SP 000.
31. Plaintiff, who is unsophisticated, did not realize the bank’s error. After getting several collection calls and letters, she finally sought the help of a social worker from the Orange County Department of Aging, who in turn sought assistance from the North Carolina Attorney General’s Consumer Protection Division. As a result of these inquiries, the closing agent resubmitted a check to Bank of America on October 29, 2002, and upon information and belief, Plaintiff’s prior mortgage was satisfied shortly thereafter.
32. Despite being apprised of the circumstances surrounding the failure of the April 2002 lender to pay off Plaintiff’s prior mortgage, the substitute trustee refused to delay or stop the foreclosure proceedings. The foreclosure hearing before the clerk was scheduled for November 18, 2002.
Count One
VIOLATION OF CHAPTER 24 OF THE Nevada (Against Defendant R & B, and against J.P. Morgan Chase Bank as

Trustee in its capacity as assignee or holder of interest in Plaintiff’s loan)
33. All paragraphs of this complaint are incorporated herein as if fully restated.
34. The loan transaction in question was: a “high-cost home loan” which did not exceed the lesser of (i) the conforming loan size limit for a single family dwelling as established by FNMA or (ii) three hundred thousand dollars; and was incurred by natural persons primarily for personal, family, or household purposes; and was secured by a deed of trust against property occupied as the borrower’s principal dwelling as defined in XXXXXXXXXX. With willful and corrupt intent, the lender, Defendant, R & B, and/or its agents, made and/or arranged the loan without the counseling required under Chapter XX of the Nevada General Statutes and specifically under XXXXXXXXXXXXThe loan was made without certification from a counselor approved by the North Carolina Housing Finance Agency that the borrowers received counseling on the advisability of the loan transaction and the appropriate loan for the borrowers. These acts and practices entitle Plaintiff to the remedies set out in XXXXXXXXX. Defendant R & B, together with Defendants J.P. Morgan, as Trustee, are liable as holders of interests in Plaintiff’s loan.
Count TwoUNFAIR AND DECEPTIVE ACTS AND PRACTICES
AS DEFINED IN NRS xxxxxxxxxxxxxxx
(Against Defendant R & B, and against J.P. Morgan Chase Bank as Trustee in its capacity as assignee or holder of interest in Plaintiff’s loan)
35. All paragraphs of this complaint are incorporated herein as if fully restated.
36. Defendants’ acts as described above, and particularly those acts specifically set out in Count One, proximately damaged Plaintiff, are in and affecting commerce, violate public policy, have the capacity to deceive an ordinary consumer, are unscrupulous, immoral, and oppressive, and constitute unfair and deceptive trade practices under NRSXXXXXXXXXX1, thereby entitling Plaintiff to three times her actual damages plus a reasonable attorney’s fee pursuant to NRSXXXXX and XXX. The remedy requested pursuant to this count which relates to acts or practices described in Count One is plead in the alternative to the relief requested pursuant to Count One, as prescribed in XXXXXXE(d). Defendant R & B, together with Defendants J.P. Morgan are liable as holders of interests in Plaintiff’s loan.
Count Three
BREACH OF FIDUCIARY DUTIES(Against Defendant Royal Mortgage)
37. All paragraphs of this complaint are incorporated herein as if fully restated.
38. Defendant, Royal Mortgage, upon information and belief, was the employer of and had as its agent Steve Smith, who solicited and intentionally induced the trust, confidence and reliance of Plaintiff as her mortgage loan counselor and guide, and Smith and Royal Mortgage occupied the position of Plaintiff’s mortgage broker. The position of trust, confidence and reliance that Steve Smith and Royal Mortgage occupied with respect to Plaintiff and the position they occupied as Plaintiff’s mortgage broker created fiduciary duties owed by Smith and Royal Mortgage to Plaintiff which were breached by the conduct set forth above, that was done for the sake of self dealing and unjustified profits taken by Smith and Royal Mortgage through the broker fee of $1424.50.
39. Plaintiff is entitled to remedies that include imposition of a constructive trust upon the proceeds of the transaction as were paid to Defendant, Royal Mortgage and Steve Smith, to an order requiring disgorgement of all proceeds paid to Royal Mortgage and Smith and to other legal and equitable remedies to be imposed jointly and severally upon Defendant Royal Mortgage.
Count Four
UNFAIR AND DECEPTIVE ACTS AND PRACTICES
AS DEFINED IN NRSXXXXXXXXXX1
(Against Defendant Royal Mortgage)
40. All paragraphs of this complaint are incorporated herein as if fully restated.
41. The acts of Defendant Royal Mortgage as described above, and particularly those acts specifically set out in Count Three, proximately damaged plaintiff, are in and affecting commerce, violate public policy, have the capacity to deceive an ordinary consumer, are unscrupulous, immoral, and oppressive, and constitute unfair and deceptive trade practices under N.RSXXXX, thereby entitling plaintiff to three times her actual damages plus a reasonable attorney’s fee pursuant to N.RSXXXXXXX§§ 75-16 and 7.
Request for ReliefWHEREFORE, Plaintiff requests:
1. That Plaintiff be awarded, pursuant to Count One, monetary damages in the amount of double recovery of any interest paid on this loan together with a Declaratory Order that the remaining interest due under the loan is forfeited.
2. That Plaintiff be awarded, pursuant to Count Two, three times her actual damages plus a reasonable attorney’s fee pursuant to NRSXXXXXXC.G.S. 75-16 and 75-16.1, upon the condition that the remedy pursuant to Count Two, is in the alternative to the relief requested pursuant to Count One, as may NRSXXXXXXC.G.S. 24-1.1E(d);
3. That Plaintiff be awarded, pursuant to Counts Three, an Order that Defendant Royal Mortgage disgorge and pay to Plaintiff all proceeds paid to it and by any party in connection with the transaction.
4. That Plaintiff be awarded, pursuant to Count Four, three times her actual damages plus a reasonable attorney’s fee to be paid by Defendant Royal Mortgage;
5. That the foreclosure action brought by the substitute trustees on behalf of Defendant JP Morgan Chase Bank against the Plaintiff be temporarily and preliminary enjoined pending a final adjudication of this action;
6. That the Court award such other relief as it deems just and proper;
7. That this case be tried by a jury.

This the ______ day of November, 2009.

Dated this [Date]

[Attorneys' address]
[Attorneys' names]

Role of the Mortgage Servicer?

In Uncategorized on 04/09/2009 at 5:36 am

Today, we are leaving the omnipresent and of course omnipotent lenders aside, and discussing the role of the servicer. Your servicer is no less omnipotent in any way. He does everything on behalf of much covered lenders. Servicer, as you may know, are not the lenders: they just service your loans. They also do an important job: they hide the real lenders from you. Servicers take out their cut and send the remaining payments to the lenders. This can be clarified better if you know the traditional role of the landlord and property manager. They keep and maintain all the record of the lenders and are accountable to them for this purpose. The property manager just manages the property, takes his cut, and sends the remaining amount along with the property audits and accounting to the landlord who generally is an absentee landlord. Again, your lenders may be in USA, somewhere in Bahamas or in southwest China. Most mortgage loans are pooled and sold to investors in the secondary market. This process is called securitization. Basically, it is little complex topic, and we may leave it for another discussion, but securitization is the root cause of our current financial problems. The loans are packaged, bundled and sold as security to various investors. Again, your servicer collects all the payments, maintain all necessary accounts, including escrow accounts for taxes, insurance, property taxes etc. The servicer receives a percentage of all this collection. The rights to service, mortgage loans can be sold and of course purchased.

Sometimes investors like Freddie Mac and Fannie Mae enters into this game with servicers to administer the mortgages. The servicers do not hold any interests in these loans which they service. You may have noticed that the servicers very intelligently and shrewdly hide the names of the lenders. There is a way to get the name of the lenders which probably only attorneys can do. Our office also can help in this regard. Oh yes, we make them disclose the names of your lenders. That is a specific job and only Nevada licensed attorney should handle it.

The original of any note sold to investors must be endorsed in blank and delivered to the investor’s document custodian. The servicer is assigned the mortgage. However, the servicer is then required to assign the mortgage to the investor, but this assignment is unrecorded. Thereafter the servicer will be the mortgagee of record to ensure all those legal notices which they continuously send to borrowers.

How to Challenge the Servicers Standing to Foreclose?

This is the most crucial question, and we are going to discuss it with little bit more details here. Okay, when a foreclosure action is initiated, the servicers’ standing to bring any action mostly depends on state statues and case laws. Here, comes the tricky part. It is common for servicers to file the foreclosure action through an investor or trust is the actual holder of note and mortgage. A challenge can be very successful from a borrower where state law clearly defines who is the holder of the note, and defines the mortgage as the real party in interest. Let us say in a state for strict foreclosure, the plaintiff must prove by a preponderance of evidence that it is the owners of the note and mortgage and the borrower defaulted on the note.

The servicer has only rights to collect mortgage payments from you. It cannot foreclose on you because this is not included or generally not included in the right of assignment from the lender to servicer. In Nicholson v. Washington Mutual the court, (2001 WL 1992418 (Tex. App. Aug. 32, 2001) (not designated for publication (deed of trust must be strictly construed. There was no authority in the deed of trust for the lender to delegate these tasks to the servicer. Some other courts have also found that the servicer has a pecuniary interest in the mortgage.

What should an Attorney Do?

The attorney (again a Nevada Licensed Attorney, not an attorney-affiliated or attorney-backed, what is this is a joke, we are not biased, we tell the truth) should examine the agreement between the servicers and holder to find out the contractual rights to foreclose, or to release the interest right. However, if the servicer brings an action under its name, without disclosing the true holder of the mortgage, the foreclosure may be delayed by court and it can be asked to identify the real party in interest. (in re Viencek, 273 B.R. 354 (Bankr. N.D.Y. 2002) delay granted by Court for servicer to amend proof of claim to identify actual creditor).

More later. How bout’ some discussion on MERS now? The servicers may have an economic interest, but MERS have none. MERS do not have any active interest and they don’ become holder of the loans. They do not have any beneficial interest in the mortgage. They are not trustee and can be nominee only, holding title to the mortgage and but not the note. Despite these shortcomings, MERS claims that they are the nominee of the lender and has the right to foreclose in their own name. They sometime commence foreclosures and later on will assign the mortgage to a servicer if the problem arises. Several courts have questioned their rights to foreclosue or have denied their right to foreclose.

How to Write a Qualified Request (Fight Back Your Foreclosure)

In Loan Modification on 04/05/2009 at 4:32 pm

VIA CERTIFIED MAIL
USA Federal Bank, FSB
[Address]

Attn: Mortgage Loan Accounting Department
Re: Loan # 99999999
XYZ
820 La Sconsa Dr.
Las Vegas, Nevada 89138

Dear Sir or Madam:

We have been retained to provide as attorney and to provide legal counsel to Mr. XYZ (authorization letter enclosed) to USA Federal Bank (“FSB”). FSB is the servicer of their mortgage loan at the above address. We dispute the amount that is owed according to the Monthly Billing Statement and request that you send us information about the fees, costs and escrow accounting on our loan. This is a “qualified written request” pursuant to the Real Estate Settlement and Procedures Act (section 2605(e)).

Specifically, we are requesting an itemization of the following:

1. A complete payment history, including but not limited to the dates and amounts of all the payments our client have made on the loan to date;

2. A breakdown of the amount of claimed arrears or delinquencies, including an itemization of all fees charged to the account;

3. An explanation of how the amount due on the Monthly Billing Statement ($1,000) was calculated and an explanation of why this amount was increased to $2,000 on August 1, 2005;

4. The payment dates, purpose of payment and recipient of any and all foreclosure fees and costs that have been charged to our account;

5. The payment dates, purpose of payment and recipient of all escrow items charged to our account since [date USA Federal Bank took over the servicing];

6. A breakdown of the current escrow charge showing how it is calculated and the reasons for any increase within the last 24 months; and

7. A copy of any annual escrow statements and notices of a shortage, deficiency or surplus, sent to us within the last three (3) years.

Thank you for taking the time to acknowledge and answer this request as required by the Real Estate Settlement and Procedures Act (section 2605(e)).

Very truly yours,
ZZZZZ

How to Write a Rescission Letter? (Fight Back Your Foreclosure)

In Uncategorized on 04/05/2009 at 4:30 pm

[Again, this is part of the education series and of course a dedication to "Fight Back Your Foreclosure". Come on folks Don't Just Walk Away From Your Homes. No attorney client relationship is sought and meant. As usual, see a Nevada Licensed Attorney for legal help]

To Whom It May Concern:
Dear Sir/Madam:

I represent the above mentioned clients concerning the loan transaction which they entered into with Aurora Loan Services. I have been authorized by my clients to rescind this transaction and hereby exercise that right pursuant to the Federal Truth in Lending Act, 15 U.S.C. § 1635, Regulation Z § 226.23.

The disclosure statement failed to provide all the required material disclosures correctly, including, but not limited to:
(a) The broker’s fee in this transaction is a prepaid finance charge but was erroneously disclosed as part of the amount financed. Consequently, the amount financed is overstated.
(b) Unless the disclosed prepaid finance charge is the broker’s fee, the prepaid finance charge and finance charge are understated.
(c) The disclosed payments do not equal the total of payments.

The security interest held by Countrywide is void upon our rescission. See 15 U.S.C. § 1635; Regulation Z § 226.23. Pursuant to the Regulation, you have twenty days after receipt of this notice of rescission to return to my clients all monies paid and to take action necessary or appropriate to reflect termination of the security interest.

My clients are hereby making a commitment of limited duration which will allow them to tender an amount due after appropriate credits are made by you to their account. Please be advised that if you do not cancel the security interest and return all consideration paid by our client prior to the expiration of our loan commitment, you will be responsible for actual and statutory damages pursuant to 15 U.S.C. § 1640(a).

We are prepared to discuss a tender obligation, should it arise, and satisfactory ways in which my clients may meet this obligation. Please be advised that if you do not cancel the security interest and return all consideration paid by our client within 20 days of receipt of this letter, you will be responsible for actual and statutory damages pursuant to 15 U.S.C. § 1640(a).

Until the expiry of twenty days, we still like to hear any proposals of loan modification including a reduction in their principal consistent with the current appraised price. Please also send me a copy of the clients’ payment history and other document showing the loan disbursements, loan charges, payments made, and current principal balance due.

Sincerely,

XYZ

Mortgage Help Not Working

In Loan Modification on 04/05/2009 at 12:14 pm

Federal government changing mortgage assistance programs after efforts fall short

WASHINGTON (AP) — Two government programs designed to help hundreds of thousands of delinquent borrowers avoid foreclosure are having negligible effects, a top Bush administration official acknowledged Wednesday. One program will be revamped immediately, and the other possibly in the near future. Steve Preston, secretary of Housing and Urban Development, said both private industry and government efforts have fallen short as the foreclosure crisis has exceeded all but the most dire forecasts.

“The response has not kept up with the need,” Preston said in a speech the National Press Club. “Many Americans who should be getting help are not getting help.”

The “FHASecure” program announced in August 2007 has only assisted about 4,000 delinquent borrowers and “has really not met the need,” Preston said.

The other, called “Hope for Homeowners,” has received just 111 applications from distressed homeowners since it was launched Oct. 1.

“Few lenders have actually signed up, and few borrowers are submitting applications,” Preston said. “So clearly we needed to make meaningful changes.”

The HUD chief outlined changes intended to encourage more participation in the Hope for Homeowners program, which refinances cash-strapped borrowers into new government-backed mortgages.

He also said that housing officials are reviewing whether additional changes to FHASecure might help that program gain traction.

Last week, hundreds of lenders gave HUD officials an earful of criticism about the Hope for Homeowners program. They blamed drawbacks in the program’s original design for their lack of participation. Among their complaints: lenders were required to absorb large losses on the delinquent loans.

Under the new rules, lenders would be allowed to take a smaller loss. New loans can be made for 96.5 percent of the home’s current value, rather than the previous level of 90 percent.

Even with the changes, borrowers would still have to pay back half of any appreciation back to the government if they sell their house or refinance.

The new guidelines only apply to borrowers who are spending up to 31 percent of their pretax income on their home loans. Borrowers who are spending a larger share of their incomes are required to have at least 10 percent in home equity.

Preston also said that lenders who hold home equity loans or other second mortgages must not block the transaction, but will receive an small payment and a share of any eventual appreciation in return for doing so.

In addition, lenders will be allowed to create new 40-year mortgages, rather than the traditional 30-year term, which will lower the borrowers’ monthly payments but cost them more in interest over the life of the loan.

Rep. Barney Frank, D-Mass., chairman of the House Financial Services Committee, called the changes “very helpful steps and reflect a commitment to meeting the need for more aggressive action to diminish foreclosures.”

However, consumer advocate John Taylor of the National Community Reinvestment Coalition said the changes “offer sweeteners for the lender and nothing for the homeowner.”

Preston did not release updated projections of how many homeowners are expected to participate, but officials hope the new guidelines will help the program reach its original estimate of helping 400,000 distressed borrowers over the next three years.

 

Complaint to Enjoin Impending Foreclosure (Only Educational Purposes)

In Uncategorized on 04/05/2009 at 12:09 am

<em>This is a sample complaint to enjoin your impending foreclosure and it is meant for only education purposes in this foreclosure crisis facing the state of Nevada. Again, and as usual, please consult a Nevada Licensed Attorney for any further questions.

[Names of attorneys]
[Attorneys' business address]

District Court
Clark County, Nevada
[Plaintiff's name],
Plaintiff,
vs.
[Defendant's name],
Defendant )
)
)

) Case No.: [Case number]

[Pleading title]

COMPLAINT
Plaintiff, complaining of the defendants and in support of her motion for injunctive relief, alleges as follows:
Nature of Action
1. Plaintiff brings this action for damages and to enjoin a foreclosure proceeding instituted against her by the current holder of her mortgage loan, JJJ.P. Morgan Chase Bank. She contends that the originator of the loan in question, R & B Funding Group, Inc. acted unlawfully in connection with the origination of a mortgage loan made to her in April, 2006 by failing to comply with Nevada laws prohibiting the financing of fees in excess of five percent of the loan amount, and by failing to ensure that she was provided with financial counseling prior to consummating this “high cost” loan. Plaintiff further contends that Royal Mortgage & Financial Service Centers, Inc. which served as her mortgage broker, breached its fiduciary duty to her. Plaintiff further alleges that the practices of R & B Funding Group, Inc. as well as New Royal Mortgage & Financial Service Centers, Inc. constituted unfair and deceptive practices.
Parties
2. Plaintiff is a citizen and resident of the town of Consumerville in Las Vegas, Nevada.
3. Defendant, R & B Funding Group, Inc., D/B/A National Builders (hereinafter “R & B”) is, upon information and belief, a Nevada Corporation and originated Plaintiff’s mortgage loan together with a mortgage broker, Royal Mortgage & Financial Service Centers, Inc., pursuant to arrangements made by R & B.
4. Defendant, JJJ.P. Morgan Chase Bank (hereinafter “J.P. Morgan”), is, upon information and belief, the creditor and/or the trust administrator of a trust that is assignee of Plaintiff’s loan, or otherwise holds Plaintiff’s loan.
5. Defendant New Royal Mortgage & Financial Service Centers, Inc. (hereinafter “Royal Mortgage”), is, upon information and belief, a corporation organized under the laws of North Carolina and performed mortgage brokerage and/or loan origination services pursuant to arrangements made by R & B at times pertinent to the events referenced in this complaint.
6. Defendants XXXXXXXXXXX and XXXXXXXX are parties to this action only in their capacity as Substitute Trustees of Plaintiff’s Deed of Trust, and the only relief sought against Defendant Weld and/or Smith is injunctive relief enjoining foreclosure of the deed of trust.
Factual Allegations
7. Plaintiff Benice Consumer is an 92-year-old widow. She is in failing health and has limited understanding of financial transactions, including the instant transaction.
8. Consumer lives in a modest home on Main Road in Consumerville, in North Las Vegas, Nevada. She and her late husband purchased this home almost fifty years ago, and she has lived there ever since.
9. In the spring of 2003, Consumer’s son, Son Consumer contacted a mortgage broker about refinancing Consumer’s existing mortgage. At that time, Consumer’s home was secured by a mortgage with Bank of America, Inc.
10. On information and belief, John Consumer contacted an individual named Steve Smith, who, upon information and belief, was employed by Defendant mortgage broker Royal Mortgage.
11. Sometime in March or April 2003, XXXXXXX Smith contacted Consumer by calling her on the telephone and informed her that he would arrange for the refinancing of Plaintiff’s home loan.
12. Steve Smith took information from Plaintiff over the telephone concerning her finances, and upon information and belief, prepared loan application documents for Plaintiff in order to secure a loan with Defendant R & B.
13. At all times relevant hereto, Steve Smith was an employee and agent of defendant Royal Mortgage.
14. Upon information and belief, all contacts with Steve Smith and/or Royal Mortgage, were transacted over the telephone.
15. On approximately April 18, 2003, a loan closing was conducted in Consumer’s living room. On information and belief, a representative from the law firm of Brock, Scott & Ingersoll went to Consumer’s home and asked her to sign many documents. Upon information and belief, Defendant R & B, and not Consumer, selected this law firm to be the settlement agent in this transaction.
16. At the time that the loan closed, Consumer signed a HUD-1 Settlement Statement dated April 18, 2002, which listed the various loan related expenses.
17. The amount of the loan was $37,000.00.
18. Among the various fees charged in connection with Plaintiff’s loan included a “loan origination fee” of $395, a “mortgage broker fee” of $1424.50, a “settlement fee” of $100, a “title search” fee of $425, a “lender amount” of $35, and a “doc prep” fee of $100.
19. According to the Federal Truth-in-Lending Act Disclosure Statement signed at the closing, Consumer was to pay monthly payments of $298.50 for 30 years. The total of payments as disclosed is $107,460.00.
20. The total of points and fees paid by plaintiffs at or before the loan closing exceeded 5% of the “total loan amount,” as that term is defined by NRSXXXXXX were financed within the loan.
21. The loan was secured against title to plaintiff’s principal dwelling, located at Main Road, Consumerville, North Carolina, by a Deed of Trust which is recorded in Book 00 at Page 00 of the Orange County Registry.
22. The proceeds of the loan were primarily for personal, family, or household purposes.
23. Plaintiff was not advised that the loan was a “high cost-home loan” as defined in NRSXXXXX.
24. Upon information and belief, no party to the transaction received a certification from a counselor approved by the Nevada Housing Finance Agency verifying that plaintiff had been counseled as to the advisability of the loan transaction.
25. Plaintiff was not counseled by a counselor approved by the Nevada Housing Finance Agency as to the advisability of the loan transaction.
26. Defendant, R & B had a duty to inform plaintiff that the loan transaction was a “high-cost home loan” and, as such, that this loan required the various counseling protections and safeguards embraced by Chapter 24 of the North Carolina General Statutes.
27. Defendant, R & B breached this duty and the plaintiff was directly, proximately and foreseeably damaged by the breach of this duty.
28. Upon information and belief, defendant Royal Mortgage did not provide bona fide or legitimate mortgage broker services to plaintiff, even though plaintiff was charged $1424.50 by defendant, Royal Mortgage, for mortgage broker services.
29. The loan transaction in question was intended to refinance Plaintiff’s then existing first mortgage with Bank of America in the amount of $26,635.37, as indicated by line 1513 on the HUD-1 Settlement Statement. On information and belief, a check was disbursed by the closing agent three days after the loan closing to Bank of America, but said check was neither cashed nor applied to Plaintiff’s mortgage account at Bank of America. Bank of America did not satisfy the deed of trust, but instead continued to withdraw monthly payments from Plaintiff’s checking account and applied them to her old mortgage account. Plaintiff attempted to make payments to the servicer of the mortgage that is the subject of this action, but as money was being withdrawn from her checking account each month by Bank of America, her checks on the new mortgage bounced.
30. On or about October 17, 2002, Defendant J.P. Morgan Chase Bank as Trustee, through its substitute trustee, Defendants Weld and/or Smith, filed a foreclosure action against the plaintiff, alleging that the plaintiff is in default in payments under the terms of the April 2002 loan contract. The foreclosure action is filed as 02 SP 000.
31. Plaintiff, who is unsophisticated, did not realize the bank’s error. After getting several collection calls and letters, she finally sought the help of a social worker from the Orange County Department of Aging, who in turn sought assistance from the North Carolina Attorney General’s Consumer Protection Division. As a result of these inquiries, the closing agent resubmitted a check to Bank of America on October 29, 2002, and upon information and belief, Plaintiff’s prior mortgage was satisfied shortly thereafter.
32. Despite being apprised of the circumstances surrounding the failure of the April 2002 lender to pay off Plaintiff’s prior mortgage, the substitute trustee refused to delay or stop the foreclosure proceedings. The foreclosure hearing before the clerk was scheduled for November 18, 2002.
Count One
VIOLATION OF CHAPTER 24 OF THE Nevada (Against Defendant R & B, and against J.P. Morgan Chase Bank as

Trustee in its capacity as assignee or holder of interest in Plaintiff’s loan)
33. All paragraphs of this complaint are incorporated herein as if fully restated.
34. The loan transaction in question was: a “high-cost home loan” which did not exceed the lesser of (i) the conforming loan size limit for a single family dwelling as established by FNMA or (ii) three hundred thousand dollars; and was incurred by natural persons primarily for personal, family, or household purposes; and was secured by a deed of trust against property occupied as the borrower’s principal dwelling as defined in XXXXXXXXXX. With willful and corrupt intent, the lender, Defendant, R & B, and/or its agents, made and/or arranged the loan without the counseling required under Chapter XX of the Nevada General Statutes and specifically under XXXXXXXXXXXXThe loan was made without certification from a counselor approved by the North Carolina Housing Finance Agency that the borrowers received counseling on the advisability of the loan transaction and the appropriate loan for the borrowers. These acts and practices entitle Plaintiff to the remedies set out in XXXXXXXXX. Defendant R & B, together with Defendants J.P. Morgan, as Trustee, are liable as holders of interests in Plaintiff’s loan.
Count TwoUNFAIR AND DECEPTIVE ACTS AND PRACTICES
AS DEFINED IN NRS xxxxxxxxxxxxxxx
(Against Defendant R & B, and against J.P. Morgan Chase Bank as Trustee in its capacity as assignee or holder of interest in Plaintiff’s loan)

35. All paragraphs of this complaint are incorporated herein as if fully restated.
36. Defendants’ acts as described above, and particularly those acts specifically set out in Count One, proximately damaged Plaintiff, are in and affecting commerce, violate public policy, have the capacity to deceive an ordinary consumer, are unscrupulous, immoral, and oppressive, and constitute unfair and deceptive trade practices under NRSXXXXXXXXXX1, thereby entitling Plaintiff to three times her actual damages plus a reasonable attorney’s fee pursuant to NRSXXXXX and XXX. The remedy requested pursuant to this count which relates to acts or practices described in Count One is plead in the alternative to the relief requested pursuant to Count One, as prescribed in XXXXXXE(d). Defendant R & B, together with Defendants J.P. Morgan are liable as holders of interests in Plaintiff’s loan.

Count Three
BREACH OF FIDUCIARY DUTIES
(Against Defendant Royal Mortgage)
37. All paragraphs of this complaint are incorporated herein as if fully restated.
38. Defendant, Royal Mortgage, upon information and belief, was the employer of and had as its agent Steve Smith, who solicited and intentionally induced the trust, confidence and reliance of Plaintiff as her mortgage loan counselor and guide, and Smith and Royal Mortgage occupied the position of Plaintiff’s mortgage broker. The position of trust, confidence and reliance that Steve Smith and Royal Mortgage occupied with respect to Plaintiff and the position they occupied as Plaintiff’s mortgage broker created fiduciary duties owed by Smith and Royal Mortgage to Plaintiff which were breached by the conduct set forth above, that was done for the sake of self dealing and unjustified profits taken by Smith and Royal Mortgage through the broker fee of $1424.50.
39. Plaintiff is entitled to remedies that include imposition of a constructive trust upon the proceeds of the transaction as were paid to Defendant, Royal Mortgage and Steve Smith, to an order requiring disgorgement of all proceeds paid to Royal Mortgage and Smith and to other legal and equitable remedies to be imposed jointly and severally upon Defendant Royal Mortgage.
Count Four

UNFAIR AND DECEPTIVE ACTS AND PRACTICES
AS DEFINED IN NRSXXXXXXXXXX1
(Against Defendant Royal Mortgage)
40. All paragraphs of this complaint are incorporated herein as if fully restated.
41. The acts of Defendant Royal Mortgage as described above, and particularly those acts specifically set out in Count Three, proximately damaged plaintiff, are in and affecting commerce, violate public policy, have the capacity to deceive an ordinary consumer, are unscrupulous, immoral, and oppressive, and constitute unfair and deceptive trade practices under N.RSXXXX, thereby entitling plaintiff to three times her actual damages plus a reasonable attorney’s fee pursuant to N.RSXXXXXXX§§ 75-16 and 7.
Request for ReliefWHEREFORE, Plaintiff requests:
1. That Plaintiff be awarded, pursuant to Count One, monetary damages in the amount of double recovery of any interest paid on this loan together with a Declaratory Order that the remaining interest due under the loan is forfeited.
2. That Plaintiff be awarded, pursuant to Count Two, three times her actual damages plus a reasonable attorney’s fee pursuant to NRSXXXXXXC.G.S. 75-16 and 75-16.1, upon the condition that the remedy pursuant to Count Two, is in the alternative to the relief requested pursuant to Count One, as may NRSXXXXXXC.G.S. 24-1.1E(d);
3. That Plaintiff be awarded, pursuant to Counts Three, an Order that Defendant Royal Mortgage disgorge and pay to Plaintiff all proceeds paid to it and by any party in connection with the transaction.
4. That Plaintiff be awarded, pursuant to Count Four, three times her actual damages plus a reasonable attorney’s fee to be paid by Defendant Royal Mortgage;
5. That the foreclosure action brought by the substitute trustees on behalf of Defendant JP Morgan Chase Bank against the Plaintiff be temporarily and preliminary enjoined pending a final adjudication of this action;
6. That the Court award such other relief as it deems just and proper;
7. That this case be tried by a jury.

This the ______ day of November, 2009.

Dated this [Date]

[Attorneys' address]
[Attorneys' names]

Complaint Against Servicer of Loan (Education purposes only)

In Uncategorized on 04/04/2009 at 11:54 pm

This is just a sample complaint for educational purposes and it is not intended to be used in its current form. For all questions, please contact a Nevada Licensed attorney.

———————–
XXXXXXXXXXXXX, Esq.
Nevada Bar No. XXXXXX
XXXXXXXXX
XXXXX Mead Blvd.
Las Vegas, Nevada, 89128
(702) 000-000(Phone)
(702) 384-0000 (Fax)
Attorney for Plaintiffs

DISTRICT COURT
CLARK COUNTY NEVADA
CCCCCCCC,

Plaintiffs,

Vs.

SLB,

Defendants.
)
) Case No.:
)
COMPLAINT
1. This is an action by a low-income homeowner against a mortgage servicing company seeking a proper accounting of her mortgage and statutory damages under the Fair Debt Collection Practices Act and the Real Estate Settlement Procedures Act.
2. Jurisdiction over this matter is conferred upon this Court by 12 U.S.C. 2614, 15 U.S.C. 1692 and 28 U.S.C. 1331. The court has supplemental jurisdiction over her state law claims.
3. Venue lies in this judicial district in that the events which gave rise to this claim occurred here and the property which is the subject of the action is situated within this district.
4. Plaintiff Mrs. XXXXXX is a natural person residing at [Address].
5. The Defendant, BillClinton Loan Servicing, LP (“BillClinton”), is a corporation with its principal offices at XXXXXXX West Central Drive, xxxxxxx Texas. BillClinton is the servicing agent for the holder of Mrs. XXXXXX’s mortgage. The mortgage on Mrs. XXXXXX’s home is held by WFM Bank Minnesota, NA as the trustee for an investor-owned trust that holds a large pool of mortgage loans sold by Owens Federal Savings Bank.
6. Andrea XXXXXX and her husband, Joe XXXXXX, purchased their home in North LAS VEGAS in 1994.
7. In December 1998 Mr. and Mrs. XXXXXX refinanced their mortgage and entered into a loan with XXXXX, Inc., trading as BYunnyside Mortgage Company. The mortgage was later sold to Owens FraUDERl Savings Bank, who in turn sold it to XXXXXBank of Minnesota, trustee. Owens continued to service the mortgage.
8. Mrs. XXXXXX eventually filed a civil suit against Owens, seeking to rescind the 1998 loan and seeking other relief.
9. The civil suit against Owens was settled by a December 2000 settlement and loan modification agreement that, among other things, called for Owens to reduce the loan principal to $25,984 and the interest rate to 8%, and for Mrs. XXXXXX to make monthly payments of principal and interest of $190.66. A copy of the December 2000 loan modification agreement is attached as Exhibit “A”.
10. At some time on or about April 29, 2002 the servicing of the mortgage loan was transferred from Owens Federal Savings Bank to Defendant BillClinton.
11. Shortly after the servicing transfer, BillClinton demanded that Mrs. XXXXXX make monthly payments of $394.79, which was the payment prior to the December 2000 modification.
12. On May 21, 2002, Mrs. XXXXXX, through her lawyer, reminded BillClinton of the terms of the loan modification, including the $190.66 payment amount, enclosed another copy of the modification agreement, and asked BillClinton to correct Mrs. XXXXXX’s account records accordingly.
13. Nevertheless, BillClinton failed and refused to revise its account records to reflect the loan modification agreement.
14. On or about July 21, 2004 BillClinton mailed a statement to Mrs. XXXXXX incorrectly asserting that the mortgage payments were delinquent.
15. On or about August 10, 2004 Mrs. XXXXXX wrote to BillClinton disputing the alleged delinquency and asking BillClinton to correct its account records to reflect that her payments of $190.66 were paid up to date.
16. On August 18, 2004 BillClinton acknowledged Mrs. XXXXXX’s written request for account information and adjustments. On or about October 8, 2004, BillClinton wrote to Mrs. XXXXXX acknowledging the loan modification and asserting that BillClinton’s records had been updated to reflect the loan modification. The same letter stated that Mrs. XXXXXX’s payment was in fact $190.66, and was due for October 1, 2004, in other words, her payments were current.
17. Mrs. XXXXXX subsequently received a letter dated September 22, 2004, asserting that she had an escrow deficit of $5285.17, and that effective November 1, 2004 her mortgage payment would increase to 455.8 (sic).
18. At about the same time in September 2004 Mrs. XXXXXX received her monthly statement dated September 15, 2004 showing the amount due by October 1 as $190.66. This statement also, however, reflected an escrow deficit of $5,285.17 and “other fees due” of $40,927.12. No explanation was provided for the escrow deficit or the other fees.
19. In November, 2004, Mrs. XXXXXX received a letter from BillClinton asserting that her loan was past due for November and December, 2004, and that the total due was $1461. No explanation was provided for this curious arithmetic. Meanwhile Mrs. XXXXXX continued sending the $190.66 monthly payments to BillClinton.
20. In December 2004 Mrs. XXXXXX received her monthly statement dated December 15 which called for a current payment amount of $666.96, and a total amount due by January 1 2005 of $2,118.43. The “other fees due” had increased slightly to $40,936.12.
21. Mrs. XXXXXX received another letter from BillClinton dated January 5, 2005 asserting that she owed three payments, and must send $2,444.96 “today”. This amount was apparently calculated on the same basis as the December statement amount, with the January 17 late fee added in advance. A copy of the January 5 letter is attached as Exhibit “B”. This letter also falsely stated or implied that foreclosure was imminent and could begin “immediately” or “today” if payment was not made.
22. Also dated January 5, 2008 were two additional letters sent by BillClinton. One, entitled “Notice of Default and Intent to Accelerate”, demanded $2,127.96, and stated that after 45 days BillClinton could accelerate the mortgage balance and foreclose the property. This letter is attached as Exhibit “C”.
23. The other January 5, 2005 letter, entitled “Appendix A”, is similar to the notice required by Pennsylvania law prior to foreclosure. This letter is attached as Exhibit “D”.
24. Exhibit D says that the monthly payments due were in the amount of $455.80 each, contradicting the statements calling for $666.96. Exhibit D also contains mathematically inconsistent amounts needed to be paid by Mrs. XXXXXX, on page three. The letter asserts that three payments of $455.80 are due, plus $19.06 in late charges and $319.18 in deferred late charges. These amounts total $12805.64. However the total amount demanded is $2,127.96.
25. Mrs. XXXXXX received another letter dated January 27, 2005, purporting to respond to her attorney’s written request for account information. Exhibit “E”. The January 27 letter states that the payment amount is $666.96 effective October 1, and is attributable to advances for insurance and taxes. The letter includes an escrow analysis that makes reference to an annual payment of $417.39 for insurance, but does not explain the escrow deficit in excess of $5,000.
26. It is mathematically impossible for annual insurance payments of $417.39 from 2002 to 2004 to accumulate to a deficit of $5,000. Mrs. XXXXXX pays her own real estate taxes, which are about $500 per year. Even if BillClinton had paid the taxes from 2002 through 2004, that would account only for $1,500 of the asserted escrow advances.
27. The January 29 letter also includes a payment history, but only from September 2004 through December 2004. The history printout included is incomprehensible, does not identify transactions as payments, advances or charges, does not begin to address the questions and concerns expressed by Mrs. XXXXXX and her attorney, and is completely unresponsive to her qualified written requests, which asked for an explanation of the $5,000 escrow deficit.
28. On or about May 18, 2005 BillClinton, through its attorneys Utrech Law Office, P.C., mailed a “Reinstatement Quote” to Mrs. XXXXXX. The May 13, 2005 reinstatement is attached as Exhibit “F”. The total amount claimed to be due is shown as $47,103.60. This document calls for monthly payments of $362.61, an amount that does not correspond to the $190.66 payment for principal and interest, the $666.96 payment shown on the December statement, or the $455.80 referred to on Exhibit D.
29. Exhibit E includes a demand for payment for numerous inspections of the property, despite the fact that Mrs. XXXXXX has been in constant communication with BillClinton, has a working telephone, and BillClinton has no basis to believe there is any danger of the property being abandoned.
30. Exhibit E includes a demand for $400 for a BPO, that is, a broker price opinion. This amount is not properly chargeable to Mrs. XXXXXX under the contract or Pennsylvania law.
31. Having no way to determine the correct amount due, Mrs. XXXXXX sent $1,400 to BillClinton on May 6, 2005 (enough to cover the principal and interest payments due from November 2004 through May 2005) in an effort to show her good faith and desire to maintain her mortgage payments.
32. BillClinton has, for the past two years, provided Mrs. XXXXXX with inconsistent, incomprehensible statements and correspondence and has made it impossible for her to maintain her monthly mortgage payments. To the extent BillClinton has made advances for taxes and insurance BillClinton has failed to identify the amounts advanced in a clear and simple manner and to establish a reasonable plan for Mrs. XXXXXX to repay those amounts.
33. Mrs. XXXXXX has suffered severe emotional distress and anxiety as a result of BillClinton’s conduct, and has expended money to travel to and from her attorney’s office and to copy documents in her vain efforts to resolve this account dispute.
COUNT I FAIR DEBT COLLECTION PRACTICES ACT
34. BillClinton was a debt collector within the meaning of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692a, at the time it became the servicing agent for Mrs. XXXXXX’s loan, in that it regularly collects debts owed to another, and the debt was asserted by BillClinton to be contractually in default at the time it became the servicer of the debt.
35. Each of the letters described above incorrectly stated the amount and the status of Mrs. XXXXXX’s debt.
36. BillClinton failed to provide verification of the alleged debt to Mrs. XXXXXX in response to her timely written request for such written verification.
37. Due to the repeated and continuing violations of the FDCPA, Mrs. XXXXXX is entitled to actual and statutory damages under15. U.S.C. 1692k.
COUNT II
RESPA
38. BillClinton is a servicer of a federally related mortgage loan within the meaning of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605.
39. Each of Mrs. XXXXXX’s (and her attorney’s) written requests for information about her account and correction of BillClinton’s numerous errors were “qualified written requests” within the meaning of RESPA.
40. BillClinton failed to respond in a proper and timely way to Mrs. XXXXXX’s “qualified written requests” for information about, and corrections to, her mortgage account, in violation of 12 U.S.C. § 2605(e).
COUNT III
XXXXXXXXXX ACT 6 of 1974

41. Mrs. XXXXXX’s mortgage is a “residential mortgage obligation” covered by XXXXXXXX Act 6 of 1974, 41 Pa. Stat. 101-605.
42. BillClinton has repeatedly failed to provide Mrs. XXXXXX with an accurate notice of the amount required to cure her mortgage default, as required by 41 P.S. 403, and has improperly demanded payment of improper amounts and has thwarted her right to cure her default, under 41 P.S. 404, and has applied some of her payments to amounts not due under her mortgage and Act 6.
WHEREFORE, Plaintiff requests judgment in her favor and against BillClinton for three times the amount of the illegal charges.
COUNT IV
XXXXXX PROTECTION LAW

43. BillClinton’s conduct described above constituted unfair and deceptive acts and practices, as defined by 73 Pa. Stat. § 201-2(4).
44. Mrs. XXXXXX has suffered an ascertainable loss of money as a result of BillClinton’s unfair and deceptive practices.
WHEREFORE, Plaintiff requests that the court enter judgment in her favor and against defendants, for a proper accounting and application of her mortgage payments and for actual, statutory, treble and/or punitive damages, and attorney’s fees and costs, along with any other and further relief as the court deems just and proper.
Attorney for Plaintiff
____________________

Another Super Complaint from Ohio

In Uncategorized on 04/04/2009 at 1:53 pm

http://livinglies.files.wordpress.com/2009/01/whittiker_v_deutsche_bank_complaint.pdf

Sample Answer to Complaint of Illegal Detainer

In Loan Modification on 04/03/2009 at 11:35 pm

This is a sample answer which I used for one of my client. This is not good for all the situations. Furthermore, this is only and exclusively meant for education purposes and not a substitute for a licensed (and that too a Nevada Licensed Attorney) attorney help. Please do not use it for any other purpose other than educating yourself for the current homeowners issues. Only hire a licensed attorney for all such questions.————

XYZ
Attorney for Plaintiff
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXX
xxxxxxx

Justice Court,
CLARK COUNTY NEVADA

US BANK NATIONAL ASSOCIATION AS INDENTURE TRUSTEE,
Plaintiff,

Vs.

XYZZZ, and DOE OCCUPANTS,1 through X, inclusive,
Defendant. Case No.:

Dept No.: 12

DEFENDANT ANSWER FOR UNLAWFUL DETAINER AND DAMAGES

Upon reading the Complaint of Plaintiff US Bank National Association As Indenture Trustee (“Plaintiff”) charging Defendant with unlawful detainer, and sufficient cause appearing therefore, Defendant XYZZZ through his attorney XYZZZAAA of the Law Office of XYZZZ _____________________, Las Vegas, Nevada 89128, hereby submits its answers and denies being in an unlawful detainer, as follows.
WHEREFORE, Defendant prays that this Court enter an Order: Dismissing the Complaint in this case with prejudice and entering judgment in favor of Defendant and against Plaintiff. Alternately, this Court should not proceed without the proper Joinder of Proper Party. Furthermore, because the complexity of issues involved, Defendant requests the transfer of this case to a more appropriate forums like District Court, Clark County, Nevada, US District Court, Las Vegas, Nevada.
1. The Defendant inter alia requests a trial date on the merits of this complaint. This complaint requires complete hearing because there are various issues of jurisdiction, joinder of proper and indispensable parties, breach of contract, violations of RESPA, TILA, HOEPA, as well as breach of fiduciary duties and deceptive trade practices by Plaintiff US Bank National Association as Indenture Trustee, and American Home Mortgage Servicing (hereafter “AHM”).
2. Furthermore, Defendant likes to file motion to include joinder of the proper and indispensable parties AHM and Dux Fin. in this lawsuit. AHM is a proper party in this lawsuit as the original contract for this loan was between Defendant and AHM. Dux Fin. is a mortgage broker and worked for XYZ Homes, Inc. Defendant US National does not carry a Note, had not shown a note in their possession, and is an unauthorized party in this potentially complex case. Furthermore, because of the domicile of US Bank in California, domicile and incorporation of AHM, and the presence of other federal subject matter issue, this case should be a proper case for a federal subject matter jurisdiction. The defense of Defendant shall be fully illustrative in a proper forum for this complex case.
3. Duxxxford Fin. is a mortgage broker affiliated with William Lyon Home and their address is Duxford Fin. Inc._________________, Nevada 89119-3624. Duxx Fin. is a Proper and Indispensable Party in this case.
4. Plaintiff US National Association as Indenture Trustee (hereafter “Indenture Trustee”) has initiated this Complaint on behalf of AHM. Defendant cannot replace a proper and indispensable party in this lawsuit. Plaintiff Indenture Trustee cannot be a proper party in this action because Plaintiff and Defendant have no contractual agreement at any time. If there was any contract, it was only between American Home Mortgage Servicing (“AHM”) and Defendant.
SPECIFIC OBJECTIONS
5. Defendant admits the facts given in Paragraph 1.
6. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint, and, upon that basis, denies each and every allegations of said paragraph.
7. Defendants deny the facts contained in paragraph 3 of the Complaint owing to lack of knowledge.
8. Defendants deny the allegations contained in paragraph 4 of the Complaint and have no knowledge or beliefs of any information to that effect.
9. Defendants deny the allegations contained in paragraph 5 of the Complaint and have no knowledge or beliefs of any information to that effect.
10. Defendants deny the allegations contained in paragraph 6 of the Complaint and have no knowledge or beliefs of any information to that effect.
11. Defendants deny the allegations contained in paragraph 7 of the Complaint and have no knowledge or beliefs of any information to that effect.
12. Defendants deny the allegations contained in paragraph 8 of the Complaint and have no knowledge or beliefs of any information to that effect.
FACTUAL OBJECTIONS
13. Proper Party AHM has refused to honor Modification Agreement entered into between the parties and as a result has overcharged the Plaintiff and failed to properly credit payments on his mortgage account. In addition to its breach of contract Proper Party AHM has engaged in abusive, deceptive and unfair debt collection practices in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.
14. Proper Party AHM has also failed to make appropriate corrections to the mortgage account despite Plaintiff’s dispute of the overcharges and misapplication of payments, in violation of the mortgage servicer provisions of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605. This Answer can be amended and can be instituted under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (“RESPA”), seeking to recover actual damages, treble damages, and court costs, by reason of both Defendant and Proper Party AHM’s’ violations of RESPA and Regulation X, 24 C.F.R. § 3500.1 et seq. (“Regulation X”).
15. Proper Party AHM has breached fiduciary duty, and interfered in contractual relationship, for money had and received, and also violated the Nevada Deceptive Trade Practices (“UDAP”).
16. Proper Party AHM negligently, willfully, and intentionally offered and made illicit payments to various loan officers including the loan agency for this loan and influenced to abandon its statutory, contractual and fiduciary duties to the Defendant and to serve Proper Party AHM’s interests instead, by steering Defendant for a mortgage loan.
17. Proper Party AHM has refused to follow any federal guidelines including various loan modification program announced by federal government including HOPE, Federal Programs.
18. Proper Party AHM is a corporation with its principal place in Irving Texas as follows:
American Home Mortgage Servicing Inc.,
_______________________________
________________________________TX 75063-1730.

19. Proper Party AHM maintains a website and provides interstate information on under: https://online.AHM3.com/servicing/AHM_aboutus.asp, as follows:
“American Home XXXXX Mortgage Servicing Inc. (AHM) provides services to homeowners and loan investors. Whether a borrower holds a traditional, Alt A, payment option or subprime loan, our highly trained experts are committed to providing high levels of service as they work to address each customer’s needs. Similarly, we carefully manage the loan portfolios of investors, giving them the attentive service that they appreciate.

Established in April 2008, XXXXXAHM brought together two mortgage loan servicing platforms, each with strong capabilities and specialized expertise. By multiplying these strengths, the company has achieved more than the sum of its parts – it has taken servicing to new levels. With a multibillion portfolio under management, AHM is one of the country’s largest servicers of Alt-A and subprime loans.

AHM is based in Irving, Texas, with servicing operations in Irvine, Calif., Jacksonville, Fla., and Pune, India. It is funded by Wilbur Ross & Co. LLC., a private equity firm based in New York, and holds membership in the Mortgage Bankers Association and the HOPE NOW Alliance. Differentiated by a focus on creative solutions and innovative ideas, the company credits its success to a talented team who do the best possible job for its customers.”

20. At all times material to this action, Proper Party AHM regularly transacted business in the State of Nevada.
21. Proper Party AHM is a “debt collector” of the Plaintiff’s “debt” as those terms are defined in the FDCPA, 15 U.S.C. § 163. At all times material to this action, Defendant AHM was and is a corporation organized and existing under the laws of the state of Texas with its principal place of business located as above.
22. Proper Party AHM is authorized to receive service of process through its registered agent, “The Corporate Trust Company of Nevada, 6100 Neil Road, Suite 500, Reno NV 89511”.
23. Proper Party AHM is a loan “servicer” of the Plaintiff’s “federally related mortgage loan” as those terms are defined in the RESPA, 12 U.S.C. § 2602(1) and 12 U.S.C. § 2605(i)(2).
24. Plaintiff US National Bank is not a proper party in this lawsuit, and cannot be a proper party because it has no contractual obligation with Defendant and is not the proper assignor of the property at _____________________ Drive, Las Vegas Nevada 89138.
25. Without joining Proper Party AHM, this law suit cannot be adjudicated properly on meritorious grounds.
FIRST AFFIRMATIVE DEFENSES
26. The Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
27. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations, statutes of repose, and/or the doctrine of laches.
THIRD AFFIRMATIVE DEFENSE
28. If Plaintiff suffered any damages as alleged, which is specifically denied, such injuries were caused, in whole or in part, by the actions or inactions of third parties, and not Defendant and for which Defendant is not liable.
FOURTH AFFIRMATIVE DEFENSE
29. Defendants are not liable because it did not act with requisite intent.
FIFTH AFFIRMATIVE DEFENSE
30. Plaintiff’s claims are barred under the doctrine of estoppel and/or waiver.
SIXTH AFFIRMATIVE DEFENSE
31. Plaintiff’s damages, if any, are speculative, and thus are not recoverable.
SEVENTH AFFIRMATIVE DEFENSE
32. Defendants acted at all times in good faith and, therefore, cannot be liable for punitive or exemplary damages.
EIGHTH AFFIRMATIVE DEFENSE
33. Plaintiff did not act in an actionable manner because there is a genuine good faith issue in dispute regarding the amounts.
NINTH AFFIRMATIVE DEFENSE
34. Defendants are not liable because they did not act with requisite intent.
TENTH AFFIRMATIVE DEFENSE
35. Plaintiff’s damages, if any, are speculative, and thus are not recoverable.
ELEVENTH AFFIRMATIVE DEFENSE
36. Defendant did not act in an actionable manner because there is a genuine good faith issue in dispute regarding the amounts.
TWELVETH AFFIRMATIVE DEFENSE
37. This defendant incorporates herein his statement of facts set out above and affirmatively defends this foreclosure based on the Plaintiff’s failure to comply with the forbearance, mortgage modification, and other foreclosure prevention loan servicing requirements imposed on Plaintiff and the subject FHA mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. § 1710(a). As a result, Plaintiff has failed to establish compliance with a statutory and contractual condition precedent to this foreclosure because of Plaintiff’s failure to comply with the federal regulations more particularly described below:
a. Defendant defaulted on this residential mortgage which is the subject of this cause due to reasons beyond his control due to a period of unemployment.
b. The Plaintiff is required under federal law to adapt its collection and loan servicing practices to this Defendant’s individual circumstances and failed to do so.
c. The Plaintiff did not make a reasonable effort as required by federal law to arrange a face to face meeting with the Defendant before three full monthly installments were unpaid. 24 C.F.R. § 203.604.
d. The Plaintiff is required by federal law to evaluate all available loss mitigation techniques and to re-evaluate these techniques each month after default and failed to do so. 24 C.F.R. § 203.605.
e. The Department of Housing and Urban Development has determined that the requirements of 24 C.F.R. Part 203(C) are to be followed before any mortgagee commences foreclosure.
f. Plaintiff has no valid cause of action for foreclosure unless and until Plaintiff can demonstrate compliance with the regulations in 24 C.F.R. Part 203(C).
g. This Defendant made significant efforts to access foreclosure prevention services from the plaintiff and to make payments but Plaintiff denied this Defendant the required opportunity to access and obtain mortgage servicing options designed to avoid foreclosure of this HUD insured mortgage. See Norwest Mortgage Inc. v. Rhoads, 5 Fla. L. Weekly 361 (Fla. 12th Judicial Circuit 1998).
38. The Plaintiff comes to Court with unclean hands as a result of its failures and omissions as set forth in the statement of facts set forth above and incorporated herein. Plaintiff is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. The Plaintiff’s unclean hands result from the Plaintiff’s intentional and reckless failure to properly service this mortgage pursuant to the federal regulations and specifically, by filing this foreclosure before offering Defendant any of the federally required foreclosure avoidance options. As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. This Court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from proceeding with this action because of misleading conduct and unfulfilled conditions.
COUNTERCLAIMS OF DEFENDANT AGAINST PLAINTIFF
STATEMENT OF FACTS

39. Defendant is a 64-year-old man, cab driver by profession and owned the property at _______________ Drive, Las Vegas, Nevada 89138 since 2004.
40. The home was purchased for approximately $550,073 in 2004.
41. At all relevant times, Defendant has resided in the home with his sons and grandchildren.
42. Defendant put down an amount of $113,335 in this home as down payment, and spent another $50,000 in upgrades and other remodeling.
43. Defendant, as a senior citizen with limited education and income, but substantial equity in his home, was a prime target for predatory mortgage lenders and brokers.
44. Defendant was an unsophisticated borrower who did not understand many of the basic terms and costs of a typical mortgage loan transaction.
45. At the closing, Defendant was presented with a myriad of loan documents to sign. A man showed Defendant the documents and told him where to sign them. He stated that he did not need to read the documents because the signing was a mere formality. Defendant, with limited education and little ability to understand the complicated financial documents placed before him, signed all the documents.
46. The transaction created a 30-year loan which by Countrywide Home Loans Inc. Countrywide Home Mortgage declared bankruptcy in 2008. Innumerable lawsuits were filed against Countrywide throughout United States and in Nevada, and following these lawsuits Countrywide entered into a settlement with the Nevada State Attorney General to modify loans and stops its predatory lending practices (Exhibit—-)
47. Countrywide started its loan with the so called “Teaser Rate” of 1.00 percent. The interest rate was subject to change on every month. It would be based on Index. The “Index” is the Twelve-Month Average” of the annual yields on actively traded United States Treasury Securities adjusted to a constant maturity of one year as published by the Federal Reserve Board in the Federal Reserve Statistical Release entitled “Selected Interest Rates (h.15)” (the “Monthly Yields”). Before each Interest Rate Change Date, the Note Holder will calculate my new interest rate by adding two points 65/100 to the Current Index. There was a complex formula for interest change beyond the understanding and comprehension of Defendant.
48. The loan also carried a prepayment penalty which would require Defendant to pay an amount equal to six months interest if he paid off the loan within five years.
49. Defendant had no idea that he would still owe $547,686.62 after making payments for 4 years and would not have agreed to the loan had he known.
50. Defendant relied on Duxford Fin.’s representation that the loan would provide him with a lower monthly payment and interest rate. He would not have entered into the transaction had he been aware of the true nature of the loan.
51. Defendant’s reliance was reasonable under all of the circumstances, given his age; limited education and lack of financial sophistication, and the fact that Dux Fin. was a professional mortgage broker which undertook to assist and advise Defendant in obtaining a loan.
52. According to the Itemization of Amount Financed attached to the Truth In Lending Statement, Duxford Fin. received more than $7800 from the loan proceeds for arranging the loan.
53. Dux Fin. received at least $5597 from the loan proceeds.
54. Dux Fin. received additional payment from xxxxCountrywidexxx, denominated “Broker’s Compensation.”
55. On information and belief, based on counsel’s familiarity with mortgage industry practices, the additional commission was measured or calculated based on the rate of interest which Dux Fin. was able to get Defendant to sign for, i.e., Dux Fin.’s compensation was increased by an amount corresponding to a higher rate of interest on the loan. The higher the rate, the more Dux Fin. could receive. Such a payment is sometimes known in the mortgage industry as a “yield spread premium.”
56. As part of the transaction, Defendant paid thousands of dollars in fees to the mortgage broker for obtaining a balloon loan with an interest rate of 11% that increased him mortgage payments without providing him with any real economic benefit.
57. On information and belief, based on counsel’s familiarity with the mortgage industry, the 11% interest rate exceeded Countrywide’s par rate on 15 year balloon loans for borrowers with similar credit histories to Defendant’s.
58. Dux Fin. was more than adequately compensated for its services by Defendant from the loan proceeds. The mortgage broker provided no goods or services for the additional “yield spread premium” fee.
59. With respect to the loan transaction, Countrywide was a “creditor” as that term is defined in the Truth-in-Lending Act, 15 U.S.C. § 1602(f), and Regulation Z, 12 C.F.R. § 226.2(a)(17).[nn]1@
60. The transaction between Countrywide and Defendant was a “consumer credit transaction” as that term is defined in the Truth-in-Lending Act, 15 U.S.C. § 1602(h), and Regulation Z, 12 C.F.R. § 226.2(a).
61. The transaction between Countrywide and Defendant was a “closed-end credit transaction” as the term is defined in 12 C.F.R. § 226.2(10), and is subject to the requirements for such transactions set forth in 15 U.S.C. § 1638 and 12 C.F.R. §§ 226.17 – 226.24.
62. The transaction between Countrywide and Defendant was one in which a security interest was taken in Defendant’s principal place of residence.
63. The transaction between Countrywide and Defendant was for the principal amount of $120,000.
64. The transaction between Countrywide and Defendant was for the Amount Financed of $111,705.66.
65. As such, the “total loan amount” for the transaction, as defined in 15 U.S.C. § 1602(aa)(1)(B) and 12 C.F.R. § 226.32(a)(1)(ii) was therefore a maximum of $111,705.66.
66. The total points and fees paid by Defendant in connection with the loan exceeded 8% of the total loan amount.
67. When the total points and fees are greater than 8% of the total loan amount, the mortgage is defined as a high rate mortgage pursuant to 15 U.S.C. § 1602(aa).
68. The transaction between Countrywide and Defendant was therefore a high rate mortgage.
69. Defendant has suffered economic and emotional damages as a result of the Third-Party Defendants’ conduct described herein. He is faced with the loss of his because of wrongful foreclosure.
70. Proper Party AHM subsequently became the owner of the subject Note and Mortgage (hereinafter referred to as the “original Loan”). At the time Defendant AHM obtained an interest in the Plaintiff’s original Loan, Defendant AHM deemed the mortgage account to be in default and serviced the account as a debt in default.
71. In January, 2009, Proper Party AHM all of a sudden broke the loan modification negotiations and oral agreement to that effect and accelerated foreclosure proceedings against the Plaintiff claiming that he was in default on the original loan.
72. Prior to this time, the Plaintiff had attempted to resolve a long-standing dispute with Defendant AHM over whether this payment he had made had been properly credited to his account.
73. Plaintiff had innumerably called AHM and its various telephone call centers scattered in different parts of the world (mostly India) and tried to elicit such information and resolve the outstanding issues.
74. Plaintiff such communication quite often broken down due to bad phone system in call centers outside USA (mainly India), due to language difficulties and breach communication at such call centers, their inability to help and help provided only by reading strictly the prepared script, and due to lack of prompt and quite often rude and arrogant customer service and bad debt collection policies maintained by AHM.
75. Plaintiff has submitted various documents to the given fax number 1-866-452-1837 few times and sent all the supporting documents for any loan modification agreement including his bank statements, monthly pay stubs, previous year tax return and hardship letter.
76. Plaintiff made handwritten notes of such conversation and spoke with Desiree Ford, (one of such representative) by calling 1-877-304-3100 and innumerably transfers of phone from one extension to other and finally to an extension No. 66393.
77. It was an ordeal to talk to various call centers either in USA and mostly in India because each time the representative was different and would always starts the conversation without any significant knowledge of the previous conversation and progress made.
78. The Plaintiff and Defendant AHM subsequently entered into a Modification Agreement subject to written ratification effective January1, 2009. This modification was about to be send to Plaintiff for formal signature and exchange.
79. Plaintiff hired the Law Office of XYZZZAAA for this loan modification ratification and a formal letter of acknowledgement was sent to the Law Office of XYZZZ on December 17, 2008 by Defendant AHM (Exhibit 1).
“Dear XYZZZAAA, Esq
American Home Mortgage Servicing, Inc. (AHM) received an inquiry regarding the above-referenced mortgage loan. We appreciate the opportunity to be of assistance.
In accordance with your request, AHM is ceasing all telephone communication with our borrower(s). We have updated our records to communicate with your office directly regarding the above mortgage loan.”

80. A similar letter was sent by AHM to Plaintiff’s attorney on December 24, 2008. (Exhibit 2)

“Dear XYZZZAAA, Esq
American Home Mortgage Servicing, Inc. (AHM) received an inquiry regarding the above-referenced mortgage loan. We appreciate the opportunity to be of assistance.
In accordance with the request, the following party/parties are authorized to receive information regarding the mortgage loan:
The Law Office of XYZZZAAA, Attorney at law.” (Exhibit 2)

81. The Plaintiff further submits that despite the alleged default and based on the Plaintiff’s request to modify the original Loan, the Defendant AHM agreed to adjust the terms of the original Loan, including reduction in interest, an amortization and reduction in principal balance.
82. The intention of the parties as evidenced by the terms of the Modification Agreement was that the Plaintiff’s loan was reinstated as current and that the total outstanding balance, including all accrued interest, charges and fees owing on the loan as of the effective date shall be put back at the end of the loan with a lower interest rate.
83. This modification or potential loan modification was completely in accordance with the federal guidelines printed in various federal programs including HOPE.
First Claim of Defendant
Plaintiff’s Assignor’s Failure to Provide Required Truth in Lending Disclosures
84. As described above, the transaction between plaintiff’s assignor and Defendant was a high rate mortgage. 15 U.S.C. § 1602(aa)(1)(B).
85. The transaction of May 27, 2006, between plaintiff’s assignor and Defendant, was therefore one in which the provisions of 15 U.S.C. § 1639 and 12 C.F.R. § 226.32 were applicable.
86. Plaintiff’s assignor violated the Truth-in-Lending, inter alia,
a. by failing to provide the disclosures to the consumer required by 15 U.S.C. §§ 1639(a)(1) and (a)(2)(A) and 12 C.F.R. § 226.32(c)(1)/-/(3);
b. by failing to provide the above disclosures to the consumer required at least three business days prior to the consummation of the transaction, in violation of 15 U.S.C. §§ 1639(b)(1) and 12 C.F.R. § 226.31(c).
c. by failing to provide accurate disclosures as required by 15 U.S.C. § 1638(a), and Reg. Z §§ 226.17 and 226.18.
87. The failure to comply with any provision of 15 U.S.C. § 1639 is deemed a failure to deliver material disclosures for the purpose of 15 U.S.C. § 1635. See 15 U.S.C. § 1639(j).
88. Pursuant to the Truth-in-Lending Act, Defendant had an absolute right to cancel the transaction for three business days after the transaction, or within three days of receiving proper disclosures from the plaintiff, after which he would not be responsible for any charge or penalty.
89. Plaintiff’s assignor’s violations of 15 U.S.C. §§ 1638, 1639 and 12 C.F.R. §§ 226.17, 226.18, 226.31 and 226.32, which are considered to be a failure to give all material disclosures, give rise to a continuing right of rescission on the part of Defendant.
90. Defendant hereby elects to rescind the transaction between himself and plaintiff’s assignor, pursuant to him continuing right of rescission.
91. When a consumer elects to rescind pursuant to the Truth-in-Lending Act, any security interest taken in connection with the transaction becomes void. 15 U.S.C. § 1635(b).
92. When a consumer elects to rescind pursuant to the Truth-in-Lending Act, the consumer is not liable for any finance or other charge. 15 U.S.C. § 1635(b).
93. The mortgage that is the subject of this foreclosure action was taken in connection with the transaction that Defendant has elected to rescind.
Second Claim
Recoupment for Violation of the Real Estate Settlement and Procedures Act
94. The transaction between plaintiff’s assignor and Defendant was a “federally related mortgage loan” as that term is defined in the Real Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2602(1).
95. Plaintiff’s assignor’s funding and origination of this transaction are “settlement services” as that term is defined in RESPA, 12 U.S.C. § 2601(3).
96. As part of the transaction, Defendant paid fees to the mortgage broker of at least $10,000.00 for obtaining a balloon loan with an interest rate of 9. % or more, that increased his mortgage payments without providing him with any real economic benefit.
97. This interest rate exceeded plaintiff’s assignor’s par rate on 30 year balloon loans.
98. In exchange for submitting an above par rate loan, plaintiff’s assignor believed to have paid the mortgage broker $5,000 or more. This payment was in addition to the money paid by Defendant, and was not for any services provided by the mortgage broker to plaintiff’s assignor or Defendant.
99. The mortgage broker was more than adequately compensated for its services by Defendant.
100. The mortgage broker provided no goods or services for this fee.
101. Plaintiff’s assignor’s payment of this fee to the mortgage broker violates RESPA’s prohibition against providers of settlement services from paying referral fees and kickbacks. 12 U.S.C. § 2607.
102. Plaintiff’s violation of RESPA is a violation that subjects Plaintiff to a civil penalty of three times the amount of any charge paid for settlement services. 12 U.S.C. § 2607(d)(2).
Third Claim
Nevada Consumer Fraud and Deceptive Practices Act
103. Defendant realleges paragraphs 1 to 102.
104. This defense is asserted pursuant to the Nevada Consumer Fraud and Deceptive Laws.
105. Dux Fin. Mortgage, and other unidentified employees and/or agents of Dux Fin. Mortgage made misrepresentations to Defendant, as set forth above, including but not limited to statements that they would act in his best interest, obtain a loan which would be to him benefit, lower him monthly payment, and provide additional cash to repair him roof.
106. Dux Fin. and its agents or employees also misrepresented the amount it was charging Defendant for its purported services.
107. Countrywide (plaintiff’s assignor) misrepresented the terms and finance charges imposed on the loan.
108. Countrywide’s closing agent misrepresented the import and contents of the documents which he asked Defendant to sign, and concealed the terms of the loan while requiring Defendant to sign the documents.
109. Countrywide and Dux Fin. entered into a conspiracy to defraud Defendant by agreeing to the payment of a kickback (the “yield spread premium”) from Countrywide to Dux Fin. for the purpose of getting Defendant to accept the loan at a higher rate than Countrywide was prepared to impose, without disclosing to Defendant the purpose and nature of the kickback.
110. The misrepresentations were material in nature, as they concerned the basic terms and benefits of the loan.
111. Dux Fin. and its employee agents knew that their representations were false at the time they were made.
112. Countrywide knew that its Truth In Lending disclosures were inaccurate. Countrywide’s agent knew that representations to Defendant at the closing were false.
113. The misrepresentations and omissions were made with the intent to induce Defendant’s reliance and thereby to enter into the transaction.
114. Defendant reasonably relied on Dux Fin.’s misrepresentations to his detriment.
115. Plaintiff’s assignor is a mortgage company with extensive experience and sophistication in transactions involving residential mortgages.
116. Conversely, Defendant is a single family homeowner who is inexperienced and unsophisticated in matters involving consumer lending.
117. The fees charged to Defendant far exceed the fees normally charged to consumers in home mortgage transactions.
118. In addition to the fees paid by Defendant for the loan, plaintiff’s assignor paid an illegal kick back to the mortgage broker of $11,654.57 in violation of RESPA.
119. Furthermore, plaintiff’s assignor failed to properly notify Defendant about the high cost nature of the loan, and failed to provide accurate Truth In Lending disclosures.
120. Plaintiff’s assignor’s practices as described above are unfair, immoral, unethical, and unscrupulous.
121. Theses practices offend public policy.
122. Plaintiff, as holder of a high cost loan, is liable for all claims and defenses that can be raised against its assignor. 15 U.S.C. § 1641(d)(1).
123. On information and belief, based on documents found in plaintiff’s loan files, plaintiff knew that the terms of the loan had been misrepresented to Defendant.
124. Plaintiff knew that the Truth In Lending disclosures given to Defendant were inaccurate. Such inaccuracy was apparent on the face of the documents assigned to plaintiff.
Fourth Claim
Common Law Fraud

125. Defendant incorporates paragraphs 1 to 124 above by reference herein.
126. Dux Fin. Mortgage, and other unidentified employees and/or agents of Dux Fin. Mortgage made misrepresentations to Defendant, as set forth above, including but not limited to statements that they would act in him best interest, obtain a loan which would be to him benefit, lower him monthly payment, and provide additional cash to repair him roof.
127. Dux Fin. and its agents or employees also misrepresented the amount it was charging Defendant for its purported services.
128. Countrywide (plaintiff’s assignor) misrepresented the terms and finance charges imposed on the loan.
129. Countrywide’s closing agent misrepresented the import and contents of the documents which he asked Defendant to sign, and concealed the terms of the loan while requiring Defendant to sign the documents.
130. Countrywide and Dux Fin. entered into a conspiracy to defraud Defendant by agreeing to the payment of a kickback (the “yield spread premium”) from Countrywide to Dux Fin. for the purpose of getting Defendant to accept the loan at a higher rate than Countrywide was prepared to impose, without disclosing to Defendant the purpose and nature of the kickback.
131. The misrepresentations were material in nature, as they concerned the basic terms and benefits of the loan.
132. Dux Fin. and its employee agents knew that their representations were false at the time they were made.
133. Countrywide knew that its Truth In Lending disclosures were inaccurate. Countrywide’s agent knew that representations to Defendant at the closing were false.
134. The misrepresentations and omissions were made with the intent to induce Defendant’s reliance and thereby to enter into the transaction.
135. Defendant reasonably relied on Countrywide’s and Dux Fin.’s misrepresentations to him detriment.
136. Plaintiff knew that the loan terms had been misrepresented to Defendant, and knew that the Truth In Lending disclosures given to Defendant were inaccurate. Such inaccuracy was apparent on the face of the documents assigned to plaintiff.
137. Plaintiff accepted assignment of the note with notice that the documents contained therein were inaccurate and that the loan violated TILA and RESPA. Therefore plaintiff is subject to the defense of fraud raised herein.
138. Plaintiff, as holder of a high cost loan, is liable for all claims and defenses that can be raised against its assignor. 15 U.S.C. § 1641(d)(1).
FIFTH CLAIM OF DEFENDANT
139. This defendant contacted the plaintiff or plaintiff’s agent for servicing and collection of the subject loan and advised plaintiff or plaintiff’s agent about his loss of income due to reasons beyond his control and requested a temporary forbearance, loss mitigation assistance and/or a special repayment plan to avoid acceleration of the subject debt and the loss of his home through foreclosure.
140. In response, the plaintiff or plaintiff’s agent advised this defendant that his only option was to bring his mortgage payments current in their entirety with a lump sum payment of the full arrearage amount.
141. This defendant affirmatively contacted the plaintiff and/or the plaintiff’s agent on more than one occasion to work out a repayment or forbearance agreement, but each time this defendant was advised by the plaintiff or plaintiff’s agent that nothing could be done to assist him to avoid the default, acceleration of the subject mortgage debt or foreclosure unless he had the ability to make lump sum payments to get current on the mortgage in amounts that far exceeded his income or his ability to pay.
142. This defendant was advised by plaintiff and/or plaintiff’s agent that partial payments toward the arrearage in the mortgage debt would not be accepted.
143. Defendant’s mortgage loan is an FHA-insured loan, therefore, the plaintiff must comply with the payment forbearance must comply with the payment forbearance, mortgage modification, and other foreclosure prevention loan servicing or collection requirements imposed on Plaintiff and the subject FHA mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. § 1710(a). These requirements must be followed before a mortgagee may commence foreclosure. 24 C.F.R. Part 203(C), Servicing Responsibilities Mortgagee Action and Forbearance.
144. Plaintiff is required by HUD regulation to ensure that all of the servicing requirements of 24 C.F.R. Part 203(C) have been met before initiating foreclosure. 24 C.F.R.§ 203.606, published August 2, 1982, 47 FR 33252.
145. Plaintiff and/or its agent for servicing, failed to carry out its federally-imposed duties which are owed to this defendant and are also incorporated into the terms of his mortgage to adapt effective collection techniques designed to meet this defendant’s individual differences and take account of his peculiar circumstances to minimize the default in his mortgage payments as required by 24 C.F.R. §203.600.
146. Plaintiff and/or its agent for servicing failed to make any reasonable efforts as required by federal regulation to arrange a face to face meeting with this defendant before three full monthly installments were unpaid to discuss his circumstances and possible foreclosure avoidance. 24 C.F.R. § 203.604, published June 16, 1986, 51 FR 21866.
147. Plaintiff and/or its agent for servicing, failed to inform this defendant that it would make loan status and payment information available to local credit bureaus and prospective creditors, failed to inform this defendant of other assistance, and failed to inform him of the names and addresses of HUD officials to whom further communication could be addressed as required by federal law. 24 C.F.R. § 203.604
148. Plaintiff and/or its agent for servicing, wholly failed to perform its obligation to explore foreclosure prevention strategies with this defendant; failed to determine the particular circumstances surrounding this defendant’s claimed default; his capacity to pay the monthly payment amount or a modified payment amount; to ascertain the reason for his claimed default, or the extent of his interest in keeping the subject property.
149. Plaintiff is required under federal law to adapt its collection and loan servicing practices to defendant’s individual circumstances and to re-evaluate these techniques each month after default and this plaintiff failed to do. 24 C.F.R. § 203.605, effective August 2, 1996.
150. Plaintiff failed to perform its servicing duty to this defendant to manage the subject mortgage as required by FHA’s special foreclosure prevention workout programs which must include and allow for the restructuring of the loan whereby the borrower pays out the delinquency in installments or advances to bring the mortgage current.
151. Plaintiff denied this defendant access to special forbearance in the form of a written agreement that would reduce or suspend him monthly mortgage payments for a specific period to allow him time to recover from the financial hardship he was suffering through no fault of his own. Such a plan can involve changing one or more terms of the subject mortgage in order to help this defendant bring the claimed default current thereby preventing foreclosure.
152. Plaintiff’s failure to comply with the FHA repayment plan or special forbearance workout programs denied this defendant the required access to explore alternatives to avoid foreclosure prior to the addition of additional foreclosure fees and costs.
153. Further, pursuant to the terms of this defendant’s mortgage, the plaintiff’s right to accelerate payments due under the terms of the subject mortgage is equitably limited by the above-referenced federal regulations. Paragraph 9(a) of the subject mortgage.
154. The subject mortgage “does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.” Paragraph 9(d) of the subject mortgage.
155. This defendant requested that plaintiff or plaintiff’s agent give him access to options to help him save his home. The plaintiff was non-responsive and only answered this defendant requests for access to loss mitigation servicing with threats to foreclose if reinstatement in full with all claimed fees and costs was not made right away.
156. Plaintiff failed to comply with its mortgage servicing responsibilities and the terms of the subject mortgage and as a proximate result, this defendant’s delinquency has been improperly inflated by mortgage foreclosure filing, service and other fees and inspections costs, and by foreclosure attorney’s fees in amounts that this defendant cannot afford to pay. Therefore, this defendant remains at the risk of losing his home.
157. This defendant made good faith efforts to access foreclosure prevention services and to pay the loan, however, the plaintiff or plaintiff’s agents denied this defendant the opportunity to access and obtain the mortgage servicing options required by federal regulations and designed to avoid foreclosure of this HUD insured mortgage.
158. Defendant first foreclosed this home and then filed the subject lawsuit in November, 2004 without first allowing this defendant the right to pursue the federally-required loss mitigation opportunities.
SIXTH CLAIM
DECLARATORY AND INJUNCTIVE RELIEF

159. This is an action for declaratory and injunctive relief against the Plaintiff.
160. Defendant reasserts and alleges his statement of facts set forth hereinabove.
161. Defendant contends that the Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this FHA insured residential mortgage in accordance with the federal regulations at 24 C.F.R. Part 203 Subpart C prior to filing this foreclosure action.
162. Defendant contends that he has a right to receive forbearance, mortgage modification, and other foreclosure prevention loan services from the Plaintiff pursuant to and in accordance with the federal regulations before the commencement or initiation of this foreclosure action.
163. Defendant is in doubt as to his rights and status as a borrower under the National Housing Act and the federal regulations made applicable to and incorporated in the subject mortgage because of the Plaintiff’s failure to service the subject loan pursuant to the federal law and because the Defendant is now subject to this foreclosure action, all of which the Defendant contends are the result of the illegal acts and omissions of Plaintiff set forth herein.
164. Defendant is being denied and deprived by Plaintiff of his right to access the special mortgage servicing required under the federal statute and regulations and Defendant is being illegally subjected to this foreclosure action, being forced to defend same, being charged illegal and predatory court costs and related fees and attorney fees, and is having his credit slandered and negatively affected, all of which constitute irreparable harm to this Defendant for the purpose of injunctive relief.
165. As a proximate result of the Plaintiff’s unlawful actions, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate.
PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment and relief as follows:
WHEREFORE, the Plaintiff respectfully requests that this Court:
A. Assume jurisdiction over this action or alternately allow Defendant to move to proper jurisdiction;
B. Declare that the Defendant AHM is in breach of the original Loan and Modification Agreement and that Plaintiff is current and not in default on the terms of the original Loan and Modification Agreement;
C. Enjoin the Defendant AHM from collecting or attempting to collect any attorney’s fees or other charges incurred prior to the effective date of the Modification Agreement that were not included the “New Principal Balance” specified in the Modification Agreement;
D. Award actual and compensatory damages, including those for mental anguish, in an amount to be determined at trial;
E. Award punitive or exemplary damages in an amount to be determined at trial;
F. Declare that Defendant AHMS violated RESPA, enjoin Defendant from committing any future violations of the Act, and award the Plaintiff actual damages and $1,000 in statutory damages pursuant to 12 U.S.C. § 2605(f);
G. Declare that Defendant AHMS violated the FDCPA, enjoin Defendant from committing any future violations of the Act, and award the Plaintiff actual damages and $1,000 in statutory damages pursuant to 15 U.S.C. § 1692k;
H. Award Plaintiff reasonable attorney’s fees and litigation expenses, plus costs of suit, pursuant to 12 U.S.C. § 2605(f) and 15 U.S.C. § 1692k(3);
I. Grant such other or further relief as is appropriate.
a. under Count I against AHM, treble damages and costs for RESPA violations;
b. under Count II against MFN, treble damages and costs for RESPA violations;
c. under Count III against AHM, actual damages and punitive damages for intentional interference with contractual relationship;
d.under Count IV against MFN, actual damages and punitive damages for breach of fiduciary duty;
e.under Count V against AHM, actual damages as restitution for money had and received;
f. under Count VI against AHM, actual damages and punitive damages for fraud by concealment;
g. under Count VII against MFN, actual damages and punitive damages for fraud by concealment;
h. such other relief to which Plaintiff may be entitled, or as determined just and appropriate by this Court.
TRIAL BY JURY DEMANDED.
Dated: February 27th, 2009
_______________________________________
XYZZZAAA, Esq.
Nevada Bar No. 1xxxxxxx
City Center West, Suite 108
7201 West Lake Mead Blvd.
Las Vegas, Nevada, 89128
(702) 270-9100 (Phone)
(702) 384-5900 (Fax)
Malik11397@aol.com
Attorney for Plaintiff
XYZZZ

CERTIFICATE OF SERVICE
I HEREBY CERTIFY service of the foregoing was made on this 2nd day of March, 2009, pursuant to NRCP, by personally delivering a copy of same to the following address of the counsel for Plaintiff:

________________
________________
_______________
xxxxxxxxSouth Valley View Blvd.
Las Vegas, Nevada 89107

___________________________
XYZZZAAA

Understanding Foreclosure in Nevada

In Loan Modification on 04/02/2009 at 11:41 am

What is foreclosure and how does it happen?

Does the homeowner have a chance to get back their home? Can I buy a home in foreclosure? Foreclosure is the final step in a process of a lender trying to recoup their money from a borrower who has defaulted on their loan. The first step on the road to foreclosure is the NOD or notice of default. After this there is a reinstatement period in the foreclosure process before the house is put up for auction. If the defaulted loan isn’t taken care of in this time period, a notice of sale is sent to the owner, posted on the property and in the newspaper and the home is put up for auction.

In this turning point in the foreclosure process, the home is either purchased by the highest bidder, meeting the reserve set by the bank to recoup their loan balance, interest and additional fees or the home is repossessed by the bank. At this point, the home becomes, bank or real estate owned (REO) property and can be purchased directly from them, often with a clean title.

Foreclosure is the process of a mortgage or lien holder exercising their legal right to reclaim the property if mortgage loan is in default. The process is a complicated one and sometimes and long drawn out process. Foreclosure laws can vary by area and it’s important to understand the foreclosure law of your state if you are in danger of being foreclosed upon or are an investor looking to cash in.

Foreclosure laws vary state by state and the process of a defaulting loan going into full out foreclosure differs according to your state law. Some states even offer a redemption period, in which one has a legal time period where they can repurchase their home. This is great for the homeowner and gives them kind of a last minute shot at keeping their home, however this can be a nerve wracking stumbling block for those looking to buy a foreclosure or bank owned home.

There are strict time guidelines and procedures to be followed with the courts and the lending institutions when it comes to foreclosure process. Foreclosure laws may offer you some relief and some options though, so check you state’s foreclosure law before proceeding with the process or purchasing a foreclosure home of your own.

Lenders in the state of Nevada may foreclose on a deed of trust or a mortgage in default using a judicial or non-judicial foreclosure process.
Judicial Foreclosure
A judicial process of foreclosure requires that the lender file a lawsuit and attain a court order to foreclose on a particular property. This type of process is generally used when no power of sale is present in the mortgage or deed of trust. A power of sale is a clause found in a deed of trust or mortgage that authorizes the sale or transfer of land as outlined by the terms of that clause.

In the event that a judicial foreclosure process is used in Nevada, the borrower has one (1) year after the foreclosure sale to redeem the property.

Non-Judicial Foreclosure

The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power of Sale Foreclosure Guidelines”.
Power of Sale Foreclosure Procedure
If the deed of trust or mortgage has a power of sale clause and it details the time, place and terms of sale, then the outlined procedure must be followed. However, if the power of sale clause does not clarify the time, place and terms of sale, then a foreclosure sale is conducted as follows:

The borrower receives a copy of the notice of default and election to sell on the date the notice is recorded in the county where the property is located. Notice is generally sent by certified mail, return receipt requested, to the borrower’s last known address. The property is then advertised and posted pursuant to Nevada law as it pertains to an execution sale.

The borrower has three (3) months from the date a notice of default and election to sell is recorded by the deed of trust’s trustee to perform and cure the default. In order to cure the default, the borrower is often expected to pay the missed payments or other sums due to the lender, but not the accelerated loan balance. The property is sold at foreclosure if the borrower fails to redeem during this time.

The time of sale must be specified in the foreclosure notice and the property sold in the manner required by law for the sale of real property on execution.

The lender may sue for a deficiency within three (3) months after the foreclosure sale or within six (6) months after the date of foreclosure. Borrowers have no rights of redemption.

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