Complaint to Enjoin Impending Foreclosure (Only Educational Purposes)


<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]

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