Sample Answer to Complaint of Illegal Detainer


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

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