Nevada Landlord/Tenant Laws

Quite often we get calls from our clients and potential clients about tenancy situations in Nevada and where a home has been foreclosed, and the tenants are seeking a remedy. Here, we are posting this section which clealry spells the Nevada laws. Again, our job is to provide the source directly without giving any legal opinion. Of course, we can provide specific opinions to our clients as well.

http://www.leg.state.nv.us/NRS/NRS-118A.html

How to Write a Wrongful Foreclosure Complaint

Attorney Malik reviews basic wrongful complaint.
How to Write a Sample Complaint for Wrongful Foreclosure
[No legal advice intended. It is purely an academic exercise because of greater interest in such issues. Absolutely no legal relationship is created and no follow up questions entertained other than general issues.]
IN THE CLARK COUNTY
OF THE STATE OF NEVADA

FRANK SINATARA,
Plaintiffs,

v.

MILLSFARGO MUTUAL BANK, FA dba MILLSFARGO MUTUAL MORTGAGE
dba MILLSFARGO MUTUAL; PROFESSIONAL FORECLOSURE SERVICES
Defendants.

FIRST AMENDED COMPLAINT

Come now the plaintiffs, Frank Sinatara, by and through their attorneys of record, and for their First Amended Complaint against the defendants hereby complain and allege as follows:

I. PARTIES

1.1 Frank Sinatara are residents of Clark County, Nevada.

1.2 MillsFargo Mutual Bank, FA (hereafter “WMU”) does business in the state of Nevada and at relevant times serviced a loan acquired by MillsFargo Mutual and ultimately by the Federal National Mortgage Association.

1.3 Professional Foreclosure Services is believed to be a Nevadan corporation operated from California and is in the business of conducting non-judicial foreclosures in Clark County, Nevada.

II. FACTUAL ALLEGATIONS AND FIRST CLAIM: BREACH OF CONTRACT

2.1 On or about January 2005 the plaintiffs purchased a condominium and obtained a mortgage loan from the Johny Walker National Mortgage Company, Pahrump, Nevadain the approximate amount $265,000.00. This mortgage loan was eventually transferred for servicing to Milikan Mortgage Company (hereafter “Milikan”). On or about June, 2006, WMU acquired Milikan and began servicing plaintiffs’ mortgage loan. The exact monthly payment varied according to property taxes and other fees paid but a typical monthly payment was $1496.36 including reserves for the payment of taxes and insurance.

2.2 Beginning in February 2007 and continuing until July of 2001 the plaintiffs made timely payments to Lee National Mortgage until such time as the loan was assigned to Milikan Mortgage and, thereafter, payments were made to Milikan Mortgage.

2.3 Around June of 2001 the plaintiffs were notified that MillsFargo Mutual had acquired Milikan Mortgage and payments were to be made to MillsFargo Mutual prospectively.

2.4 On or about August 1, 2001 the plaintiffs, through their personal bank, MacMacMacPacific Bank, initiated an automatic bill payment service to automatically pay the MillsFargo Mutual home loan payment, which commenced on August 14, 2001. Initially, the payments were scheduled to be sent on or about the 14th day of each month in accordance with the loan agreement. Between August 14, 2001, and April 10, 2002 MacMacPacific Bank sent automatic payments to MillsFargo Mutual for the amount of the full payment each and every month in a timely fashion.

2.5 The automatic payments were received by MillsFargo Mutual within a few days of the transmission by MacMacPacific Bank, but not credited to their account.

2.6 Around October of 2007 the monthly statements from MillsFargo Mutual reflected that payments were not being credited. The Consumers promptly checked with MacMacMacPacific Bank to ensure that the payments had been sent and then supplied the requested information about the transmission and receipt of the payments to MillsFargo Mutual. The Consumers had MacMacPacific Bank produce canceled checks from these payments which were transmitted to MillsFargo Mutual whenever requested. In November, MillsFargo Mutual, without explanation, sent back the September payment to MacMacPacific Bank which credited it to the Consumers’ MacMacPacific Bank account.

2.7 On December 12, 2001 MillsFargo Mutual wrote to the Consumers indicating no payments had been received since October 1. MillsFargo Mutual assessed escrow expenses and delinquency charges and threatened to foreclose on the property.

2.8 The Consumers immediately responded to this, again supplying canceled checks and proof that MillsFargo Mutual had in fact received their payments.

2.9 In early 2002, despite repeated communication from the Consumers and repeated proof of payments made, MillsFargo Mutual hired Professional Foreclosure Services to commence foreclosure. On March 6, 2002, a Notice of Default was issued by Professional Foreclosure Services and approximately 30 days later a Notice of Trustee Sale scheduling a non-judicial foreclosure for July 19, 2002, was transmitted to the Consumers.

3.0 The Consumers continued to send letters and make phone calls to MillsFargo Mutual to no avail. As a result, in April 2002 adverse credit consequences occurred to the Consumers including a cancellation of a MacMacPacific Bank credit line and reduction of an American Express credit line.

3.1 MillsFargo Mutual and/or Professional Foreclosure Services has transmitted to various credit reporting agencies, including Equifax, false adverse information about the Consumers, causing their credit to be impaired.

3.2 In April of 2002 MillsFargo Mutual returned some of the payments and refused to take further payments made by the Consumers.

3.3 Beginning May 2002, the Consumers have made payments directly to MillsFargo Mutual payable to a bank account in a MillsFargo Mutual bank to show their good faith and intent to comply with their loan obligations.

3.4 The Consumers have contacted Professional Foreclosure Services to dispute the debt and request verification of the debt and have received no information whatsoever in violation of the Fair Debt Collection Practices Act and the Alaskan Collection Agency Act, as well as in breach of the duty of Good Faith and Fair Dealing implicit in contracts.

III. SECOND CLAIM: WRONGFUL FORECLOSURE

3.1 As a proximate result of the negligent or reckless conduct of MillsFargo Mutual and Professional Foreclosure Services the Consumers’ credit has been impaired and they are threatened with the eminent loss of their property despite the fact that they have made all payments in accordance with the loan agreement.
3.2 Unless enjoined, the plaintiffs will suffer irreparable harm and will not have an adequate remedy at law.

3.3 As a proximate result of the negligent actions of both defendants, the Consumers have suffered consequential damage and will continue to suffer additional damage in an amount to be fully proved at the time of trial.

IV. THIRD CLAIM: SLANDER OF TITLE

4.1 The defendants have caused to be recorded various documents including a Notice of Trustee Sale which has impaired the Consumers’ title which constitutes slander of title and the Consumers should be awarded resulting damages to be fully proved at the time of trial.

V. FOURTH CLAIM: VIOLATION OF THE CONSUMER PROTECTION ACT

5.1 The defendants have engaged in a pattern of unfair practices in violation of the Nevada Revised Statutes XXXXXX Consumer Protection Act, XXXX et seq. entitling the Consumers to damages, treble damages and reasonable attorney fees and costs pursuant to the statute.

VI. FIFTH CLAIM: SLANDER OF CREDIT

6.1 The Consumers allege that the actions and inactions of the defendants have impaired their credit causing them to lose the ability to have good credit entitling them to damages, including statutory punitive damages pursuant to state and federal law, all to be proved at the time of trial.

VII. INFLICTION OF EMOTIONAL DISTRESS

7.1 The defendants have intentionally or negligently taken actions which have caused the plaintiffs severe emotional distress.

Wherefore, having set forth various causes of action against the defendants, the plaintiffs pray for the following relief:

1.That this Court enjoin the foreclosure presently scheduled for July 19, 2005, conditioned upon the Consumers making payments as the have in the past in a timely fashion;

2. That the actions of both defendants be determined to be unfair and deceptive business practices in violation of UDAP Nevada;

3. That the Consumers be awarded punitive damages provided for in UDAP XXXX including costs and attorney fees;

4. That the Consumers be awarded consequential damages to be fully proved at the time of trial;

5. That the Consumers be awarded their fees and costs pursuant to the written loan agreements which bind the defendants; and

6. That the Court grant any other relief that may be just or equitable.

Attorney for XXXXXXX

Complaint to Enjoin Foreclosure (Education Purposes Only)

<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]

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

[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

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]

Complaint Against Servicer of Loan (Education purposes only)

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 NEVADACCCCCCCC,

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

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