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     ARTHUR D. LEVY (SB # 95659)
     Three Embarcadero Center, Suite 1650
 2   San Francisco, California 94111                                       ENDOnSED FILED
     TeL (415) 702-4550                                                    SU~IORCOURT
 3
     t~ltr~~&~~F(&~Bl6%~i~~)                                         COumvOfSANfRAMCtSOO
 4   KEMNITZER, B~ON & KRIEG, LLP                                         JAN 28 lmO
     445 Bush Street. 6 Floor
     San Francisc9_, California 94108                             OO....nn1l>.l PARK: U,CleJk
 5   TeL (415) 63£-1900           CASE MANAGEMENT CONFERENCE SET     '.ru.N~"            NAn:
     Attorneys for Plaintiff                                     nY:         p~ 1)eplI1)I CiIIIit
 6   LOUISE PEREZ
     Individually and on Behalf of        JUL - 22010 9m!AM
 7   All Others ~imilarly Situated
                                             DEPAKlMENT212
 8
                                  SUPERIOR COURT OF CALIFORNIA
 9
                                    COUNTY OF SAN FRANCISCO
10
     LOUISE PEREZ, individually and on behalf of
11   All Others Similarly Situated,                       Case No.

12                  Plaintiff,                                 CGC• 1 0 .4 9 6 3 7 4
                                                          CLASS ACTION COMPLAINT FOR
13                                                        VIOLATIONS OF THE ROSENTHAL FAI
            vs.
14                                                        DEBT COLLECTION PRACTICES ACT
                                                          AND UNFAIR COMPETITION LAW;
15   BARCLAYS CAPITAL REAL ESTATE INC.                    DEMAND FOR JURY TRIAL
     dba HOMEQ SERVICING,a Delaware
16   corporation; and DOES 1 through 20,                  UNLIMITED JURlSIDICTION
                                                          CLASS ACTION
17
                    Defendants.
18

19

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            Plaintiff LOUISE PEREZ, individually and on behalf of all members of the proposed
21
     plaintiff Class defined below, and alleges as follows:
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                                       GENERAL ALLEGATIONS
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            1.      Plaintiff is a natural person and a resident of Fresno County, California at the time
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     of commencement of this action.
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            2.      Plaintiff brings this action as a class action on behalf of all natural persons who,
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     while residing in California, obtained a home mortgage loan serviced by HomEq and received a
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     written home mortgage modification offer from HomEq in the same or substantially the same
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                      1
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR TIlRY
     TRIAL
 1
     form as Exhibit "A" attached to this complaint during the period beginning four years preceding
 2
     the filing of this action and continuing until the date of Judgment in this action, and did not
 3
     receive a modification..
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            3.      Defendant Barclays Capital Real Estate Inc. is a Delaware corporation that has not
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     designated any principal place of business in California with the California Secretary of State.
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     Barclays Capital Real Estate, Inc. has transacted and continues to transact business in California
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     under the fictitious business name "HomEq Servicing" and is referred to in this complaint as
 8
     "HomEq."
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            4.      HomEq at all relevant times was, and continues to be, engaged in the business of
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     mortgage loan servicing. HomEq's business includes servicing home mortgage portfolios
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     throughout California. HomEq' s mortgage loan servicing business includes a significant number
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     of home mortgages made to individuals residing in San Francisco and throughout the San
13
     Francisco Bay Area secured by homes located here.
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            5.      The members of the Class include a large number of people who live in San
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     Francisco and throughout the San Francisco Bay Area and whose mortgages are serviced by
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     HomEq and secured by homes that are located here.
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            6.      Defendants Does 1 through 20 are persons or entities whose true names and
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     capacities are currently unknown to plaintiff, and who therefore are sued by fictitious names.
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     Plaintiff will amend this complaint to allege the true names and capacities of these fictitiously-
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     named defendants when they are ascertained. Each of the fictitiously-named defendants is
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     responsible for the business practice alleged in this complaint.
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            7.      On or about August 1, 2005, plaintiff obtained a $100,000 mortgage loan from
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     WMC Mortgage Corp. The loan was secured by a deed oftrnst against plaintiffs home located
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     in Parlier, Fresno County, California.
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            8.      HomEq became the loan servicer for plaintiff s horne mortgage.
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            9.      Each of the members of the Class likewise was and/or is indebted on a home
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     mortgage in a portfolio of horne mortgages serviced by HomEq.
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                     2
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR JURy
     TRIAL
~

     1
                 10.    As of October 2008, plaintiff was unable to meet her home mortgage obligations.
     2
                 11.    On or about October 23, 2008, HomEq commenced a non-judicial foreclosure of
     3
         plaintiff's home by causing a Notice of Default and Election to Sell to be recorded against her
     4
         home.
     5
                 12.    On or about January 27,2009, HomEq caused a Notice of Trustee's Sale to be
     6
         recorded for a trustee's sale of plaintiff's home on February 18,2009.
     7
                 13.    On January 29,2009, defendants sent, and plaintiff received, the written form
     8
         home mortgage modification offer attached as Exhibit "A."
     9
                 14.    According to the offer, HomEq had determined that plaintiff was eligible for a
    10
         modification of her home mortgage. The offer stated, in pertinent part:
    11
                 The required downpayment that we will need to be collected in order to proceed
    12
                 with the modification process is ($2,116.00). These funds must be received in our
    13
                 office no later than (02/06/09). Please send these funds by Western Union Quick
    14
                 Collect using city code: HomEq and state code: CA.
    15
                 15.    Defendants likewise sent each of the members of the Class, and each member
    16
         likewise received, a written form home mortgage modification offer that was the same or
    17
         substantially the same as Exhibit "A" except for the borrower's name and address and the amount
    18
         and date of the downpayment
    19
                 16.    Plaintiff promptly remitted $2,116.00 to defendants as a downpayment on account
    20
         of a mortgage modification.
    21
                 17.    On or about June 22, 2009, plaintiff received a letter from HomEq informing her
    22
         for the first time that HomEq had denied her a home mortgage modification.
    23
                 18.    On or about July 1, 2009, without plaintiff's knowledge and without further notice
    24
         to her, HomEq caused plaintiffs home to be sold at a Trustee's Sale.
    25
                 19.    On July 2, 2009, plaintiff called HomEq and was then informed for the first that
    26
         her home had been sold at the Trustee's sale.
    27
                 20.    HomEq applied the $2,116.00 that plaintiff paid as a downpayment on account of
    28
         CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL F AlR DEBT                                 3
         COLLECTION PRACTICES ACT AND UNF AlR COMPETITION LAW; DEMAND FOR JURY
         TRIAL
 1
     a modified home mortgage against the balance outstanding on plaintiff's unmodified home
 2
     mortgage. Defendants did not refund plaintiff's downpayment to her before, during, or after
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     HomEq decided not to modify plaintiff s home mortgage.
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                                    CLASS ACTION ALLEGATIONS
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             21.    Plaintiff brings this action asa class action on behalf of herself and all members of
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     the proposed plaintiff Class defined above.
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             22.    The Class is ascertainable because its members can be determined from
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     defendants' business records and/or the above definition of the Class is sufficient to enable
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     members of the Class to identify themselves as members of the Class.
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             23.    The members of the Class are so numerous that individual joinder of all Class
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     members is impracticable. Plaintiff is informed and believes, and on that basis alleges, that there
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     are thousands of members in the Class, although the precise size of the Class has not yet been
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     ascertained.
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             24.    Classwide common questions oflaw and fact exist and predominate over
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     questions affecting only individual Class members. Common questions include, but are not
16
     limited to:
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             a.     Defendants' common business practice of sending the written home mortgage
18
                    modification offer to plaintiff and the Class in the form of Exhibit "A."
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            b.      Whether defendants are "debt collectors" within the meaning of Civil Code
20
                    section l788.2(c).
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             c.     Whether defendants' common written home mortgage modification offer to
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                    plaintiff and the Class violated Civil Code section 1788.17 by using false,
23
                    deceptive, and misleading representations or means.
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            d.      Whether defendants' common written home mortgage modification offer to
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                    plaintiff and the Class constitntes an unlawful and/or fraudulent business practice,
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                    and/or false or deceptive advertising, in violation of Business & Professions Code
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                    §§ 17200 et seq. and §§ 17500 et seq.
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                  4
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR JURy
     TRIAL
 1
             25.     Plaintiff s claims are typical of the claims of the members of the Class. Plaintiff,
 2
     like each of the members of the Class, obtained a home mortgage loan serviced by HomEq and
 3
     received a written home mortgage modification offer from defendants in the same or
 4
     substantially the same form as Exhibit "A."
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             26.     Plaintiff is an adequate representative of the Class because (a) her interests do not
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     conflict with the interests ofthe individual members of the Class she seeks to represent; (b) she
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     has retained counsel who are competent and experienced in complex class action litigation; and
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     (c) she intends to prosecute this action vigoronsly. Plaintiff and her counsel will fairly and
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     adequately protect the interests of the Class.
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             27.     A class action is superior to other available means for the fair and efficient
11
     adjudication of the claims of plaintiff and the Class. Their claims are too small to practicably
12
     permit pursuit on an individual basis, even though the Class members' rights have been violated
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     by defendants' practice. Hence, the Class members' common claims can only be economically
14
     adjudicated in a class action.
15
                                         FIRST CAUSE OF ACTION
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                      For Violations of the Rosenthal Fair Debt Collection Practices Act
17
                                               Civil Code §§ 1788 et seq.
18
             28.     Plaintiff realleges and incorporates all of the preceding allegations as though
19
     stated in full in this cause of action.
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             29.     In sending the home mortgage modification offer to plaintiff and the members of
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     the Class, defendants were acting and continue to act as persons who, in the ordinary course of
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     business, regularly, on behalf of themselves or others, engage in debt collection. Defendants
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     were and continue to be "debt collectors" within the meaning of Civil Code section 1788.2(c).
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             30.     Defendants violated Civil Code section 1788.17 by using a false, deceptive, and
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     misleading representation or means in connection with the collection of the home mortgage loans
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     of plaintiff and the Class. Defendants' false, deceptive, and misleading representation or means
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     was sending plaintiff and the members of the Class the home mortgage modification offer alleged
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                        5
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR JURy
     TRIAL
                    This offer was false, deceptive, and misleading because:

                    It expressly and falsely represented that the requested payment was a

                    "downpayment" on account of a home mortgage modification, when defendants

                    intended to apply, and applied, the payment against amounts outstanding under the

                    unmodified home mortgages of plaintiff and Class members, regardless of
 7
                    whether a home mortgage modification offer was approved.
 8
             b.     It impliedly and deceptively represented that defendants would apply the
 9
                    payments made by plaintiff and the Class on account of their modified home
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                    mortgage obligations, when in fact defendants intended to apply, and applied, the
11
                    payments against amounts outstanding under their unmodified home mortgages,
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                    regardless of whether a home mortgage modification offer was approved.
13
             c.     It deceptively failed to include facts necessary to make the statement that the
14
                    payment to be made was a "downpayment" for a home mortgage modification not
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                    misleading by failing to state that defendants intended to apply the payment
16
                    against amounts outstanding under the unmodified home mortgages, regardless of
17
                    whether a home mortgage modification offer was approved.
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             32.    This false, deceptive, and misleading representation or means was likely to
19
     deceive the least sophisticated consumer.
20
             33.    This false, deceptive, and misleading representations or means did in fact deceive
21
     plaintiff. Plaintiff understood and believed that defendants would apply her payment of $2,116
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     on account of her home mortgage modification and would not apply her payment on account of
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     amounts outstanding under her unmodified home mortgage, regardless of whether a home
24
     mortgage modification offer was approved.
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             34.    In reliance on, and as a direct and proximate result of, defendants' home mortgage
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     modification offer, plaintiff remitted to HomEq the sum of $2, 116.
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             35.    Plaintiff has suffered actual damages in the amount of$2,116 and further general,
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                    6
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR WRY
     TRIAL
 1

 2
     specific, actual, and other damages as will be shown at trial.
 3
                                        SECOND CAUSE OF ACTION
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                   For Violation of the Unfair Competition Law - Unlawful Business Practice
 5
                                 Business & Professions Code §§ 17200 et seq.
 6
             36.      Plaintiff realleges and incorporates all of the preceding allegations as though
 7
     stated in full in this cause of action.
 8
             37.      Defendants have engaged and continue to engage in an unlawful business
 9
     practice under California Business & Professions Code Section 17200 et seq. by violating Civil
10
     Code section 1788.17 as alleged above.
11
             38.      Plaintiff has suffered injury in fact and lost money or property as a result of this
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     unlawful practice by making a downpayment to HomEq on account of a home mortgage
13
     modification.
14
             39.      Plaintiff and the Class made downpayments to HomEq on account of home
15
     mortgage modifications that should equitably be restored to plaintiff and the Class.
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             40.      Defendants will continue this unlawful practice unless and until restrained and
17
     enjoined by this Court. Under Business & Professions Code section 17203, restraining orders
18
     and preliminary and p=anent injunctive relief are warranted and authorized to protect the



                                         TIDRD CAUSE OF ACTION

                    For Violation of the Unfair Competition Law and False Advertising Law

                              Fraudulent Business Practice and False Advertising

                       Business & Professions Code §§ 17200 et seq. & §§ 17500 et seq.

                      Plaintiff realleges and incorporates all of the preceding allegations as though

     stated in full in this cause of action.
26
             42.      Defendants have engaged and continue to engage in a fraudulent business
27

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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                        7
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR JURy
     TRIAL
 1
     practice and false and deceptive advertising in violation of California Business & Professions
 2
     Code sections 17200 et seq. and sections 17500 et seq. by sending plaintiff and the members of
 3
     the Class a home mortgage modification offer that was likely to deceive a reasonable consumer.
 4
            43.     Plaintiff reasonably relied on defendants' fraudulent business practice and false
 5
     and deceptive advertising by paying defendants $2,116 on account of a home mortgage
 6
     modification in the reasonable belief that defendants would apply her payment on account of the
 7
     home mortgage modification and would not apply her payment against amounts outstanding
 8
     under her unmodified mortgage, regardless of whether a home mortgage modification was
 9
     approved.
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            44.     Plaintiff has suffered injury in fact and lost money or property as a result of this
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     fraudulent business practice and false advertising by making a downpayment to HomEq on
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     account of a home mortgage modification.
13
            45.     Plaintiff and the Class made downpayments to HomEq on account of home
14
     mortgage modifications that should equitably be restored to plaintiff and the Class.
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            46.     Defendants will continue this practice unless and until restrained and enjoined by
16
     this Court. Under Business & Professions Code section 17203, restraining orders and
17
     preliminary and permanent injunctive relief are warranted and authorized to protect the public.
18
                                            RELIEF SOUGHT
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            47.     Plaintiff requests relief for herself and all members of the Class as follows:
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            a.      An Order certifYing the proposed plaintiff Class under Code of Civil Procedure
21
                    section 382 and appointing plaintiff and her counsel of record to represent the
22
                    Class.
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            b.      Restitntion by defendants to plaintiff and all Class members of all downpayments
24
                    made on account of a home mortgage modification, plus prejudgment interest.
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            c.      An Order temporarily and permanently enjoining defendants from continuing to
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                    send home mortgage modification offers requiring a downpayment that is not fully
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                    refundable if the home mortgage modification is not approved and put into effect.
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     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTHAL FAIR DEBT                                      8
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR JURy
     TRIAL
 1
           d.     Statutory damages to plaintiff and the members of the Class.
 2
           e.     An award of general, actual, and other damages sustained by plaintiff and the
 3
                  members of the Class.
 4
           £      An award of attorney's fees and expenses of litigation to plaintiffs counsel as
 5
                  provided by law.
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           g.     Pre-judgment interest.
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           h.     Costs of suit.
 8
           1.     Such other and further legal and equitable relief as this Court may deem proper.
 9

                                                                         »
     DATED: January 28, 2010
10
                                               a-/ZA-
                                                Arthur D. Levy
                                                                   ~,
11

12                                                and

13                                                KEMNITZER, BARRON & KRlEG, LLP
                                                  Bryan Kemnitzer
14                                                William M. Krieg

15                                                Attorneys for Plaintiff
                                                  LOUISE PEREZ, Individually and on Behalf of All
16                                                Other Similarly Situated

17
                                     DEMAND FOR JURY TRIAL
18
           Plaintiff demands trial by jury of each and every issue so triable.
19

20
     DATED: January 28, 2010                      a..._;-~ r:l ~
21                                                Arthur D. Levy

22                                                and

23                                                KEMNITZER, BARRON & KRIEG, LLP
                                                  William M. Krieg
24
                                                  Attorneys for Plaintiff
25                                                LOUISE PEREZ, Individually and on Behalf of All
                                                  Other Similarly Situated
26
27

28
     CLASS ACTION COMPLAINT FOR VIOLATIONS OF THE ROSENTIIAL FAIR DEBT                               9
     COLLECTION PRACTICES ACT AND UNFAIR COMPETITION LAW; DEMAND FOR mRY
     TRIAL
                                                                          HomEq Servicing
    01/29/2009
                                                                                             HmnEq Servicing CASSQ7
                                                                                              48S7 Watt Avenue Slllte 100
    louise EPerez                                                                            !'!ori:h Hlghiands. -ca 95660
                                                                                             Fax! (8G5)·554-5325
    8801 South Ml~nn Ave
    P~rJier, CA S364~

    Dear louiS" EPere>:
    We have re\'hlwed your req~esI for. modJRcation forth. aboye referenced ac<aunt Based upon fu. flnandallnfurm.tlcn that you
    proVided OVlOI"th. phone, we have determIned fuat your account Is ellglbldor modification.
    "rhe reqUired down payment that wnl need to be coJlocted in order to proceed with the ma dificatlon process is ($2,110,00). These funds
    must be receIveo in our office no larerthah (OZl061Z00S). please =d these fund. by Western I.Inia" quIck coliectu.1nE cil:y code:
                                                       '0
   .J.lotrlEq and state code CA. C~1I1·866-B<.2·1471 prll'llde the MC'I"N# for tracKIng, Immediately after , ....ding this down payment
    Additionally, below ls a list <:If supportirlg documentotlon 1Iw1; mil;;! be submitted in o~der for HomEq to begi1 the mQdtftea~ 0J1 proe';""
    Pie"•• fax ths foilol<'ing required documents to 1·366·SS4·5325,
        •     Hcrnshlp Lett",
        •     ~Brt30daysBank$tatemem.
        •     Last 30 tlay> pay check stubs
        •     La>tTElXllill(ifnot<iScrowe~)
        •      La5tlnsurancellill (ifnCtescrowad)
        •      1..>", Year's Tax FIling (if self employed)
   FI •• se be awar.that during the modlflcatlon review process we will com:itlue our effqrts tD collect fue amounts oWed on your loan,
   and Y"U m"y receive collection letters or nOli""" from HomEq oroU! .tU>rneys. Foroclosure ."~ons will not b. suspended uht' we
   receive the ··eqvired dOCl.lmerrlllUoo and minimum down payment required tu proceed with fue modification pIOC<1SS,
   DUring the mooifh:"uon review process, addl1"lOnal supporting documentation also may be reQUested. In the evant that roquesred: .
   InfoJ111a\jon ls not receWed within (10) blJsiness day~ of the date afme f"'luest. ~OUf m~dITlCotlO!'\ may b. denl.d, Upon retelpt of.the
   reg ull"lld do :umentatlon and down payment. we Will suspend foreclosure aaivity and proceed with !:he modlfice;l:ion process, Plmse!:eep
   in mind tho', eliglbilityfor modificatiOh is pat a guarantee that a modiiicatio" will be granted. E1lglbllityWllS e.stabfiShed based upon .
   infurmlrllon prOVided verbally whlo(1 must bE reviewed ond validated prior to tho modrtiGittion approv"1 being gram.1i lfthe modification
   is denied fo' any reason. Hom&! may proceed with its normal default actMlies on rOUT account
   If yO" file a Chapter 7 or Chapter 13 BanRtuptcj at any time during ilie modiffJ:atioo process, a materia! default Will be deemed to have
   o<:curmd and HomEq will take $Udt aotion .,; It cleen')!; appropriate withaUI further noliCe to you.

   lfyOl.l Mye sny question. c.oncerning this maller, please call (8oli) 822·1471.


                                                         L .
   Please sign ~e1ow and fax a copy of your signed letter to (866) $54·5325, Please note that the slgn.tures of all co·bO!Tllwers are roquired
   (hpplicaI>Je).
   Agreeq IlI1d Aoknowledged.
                                    , />
                                    'f./                          _                                       /           !
o<sorrower.::d.._       004A               be          ~ (::37                           Date ()     r   I    2.'1;01
   8orrower _ _ _- _ _ _ _ _ _ _                 ~   _ _ _ _- _ __                       Dat. _ _ _ _ _ _ _ _ __

   HomEq SeMdng is a cjef;lt collector. I1QrnEq is at!<>ffiptinll Ie. collect" daht and any information          o~tainecl   wm be USlOd fur that
   purp""~,




   IMPORTANt, You are hereby notified that We may !/!poM; inforrna~o~ about your l1CCOUl1tto credit reporting ag<nGie5. Lat;) payments,
   ml~s.d payments, 0 ramer defaults on your account may <Iso be Teflected on·your credit report.




                                                                       EXHIBIT "A"

				
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