Sample-Complaint

Document Sample
Sample-Complaint Powered By Docstoc
					      IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF STATE


YOUR NAME,                                        ) CIVIL ACTION NO.: ________________
YOUR ADDRESS                                      )
                                                  )
                                                  )
        Plaintiff,                                )
                                                  )
vs.                                               )
                                                  )
YOUR LENDER                                       )
YOUR LENDER’S ADDRESS                             )
                                                  )
YOUR LOAN SERIVICER                               )
YOUR LOAN SERVICER’S ADDRESS                      )
                                                  )
[POTENTIAL OTHER PARTIES, IF                      )
APPLICABLE:]                                      )
                                                  )
YOUR MORTGAGE BROKERAGE                           )
COMPANY                                           )
                                                  )
YOUR LOAN ORIGINATOR                              )
                                                  )
THE PERSON WHO BOUGHT YOUR                        )
PROPERTY, IF IT’S BEEN SOLD                       )
                                                  )
[IF YOU DON’T KNOW THE NAMES                      )
OF THESE PEOPLE, YOU CAN SUE                      )
THEM AS “JOHN DOE, ADDRESS                        )
UNKNOWN]                                          )
                                                  ) JURY DEMAND ENDORSED HEREON.
        Defendants.                               )

                 COMPLAINT – ACTION INVOLVING REAL PROPERTY

        Plaintiff Your Name brought this suit when she learned that her home had been sold at a

foreclosure sale [Or, when she learned that her house was set for sale at a foreclosure auction,

OR when she learned of violations in her loan documents]. The first time she learned that a

foreclosure had even been planned was when Defendant John Doe arrived on her property, told

her that he had purchased the house, and asked when she would be leaving. Your Name was
completely unaware that the sale had even taken place. Defendants never provided any of the

notices required by law. As such, she seeks a set aside of the sale and an injunction from

Defendant John Doe preventing him (1) from entering the property and (2) making any efforts to

take possession of the property.

                                        THE PARTIES

   1. On March 31, 2004, Plaintiff, Your Name purchased the property located at Your

       Address.

   2. Defendant [the loan originator], was both the loan originator under the Deed of Trust and

       the mortgage broker for the real estate transaction.

   3. Defendant GMAC Mortgage LLC (“GMAC”) is a subsequent assignee and/or successor

       to Defendants Pulte Mortgage and MERS.

   4. Defendant Professional Foreclosure Corporation of Your State (“Professional Foreclosure

       Corp.”) is the agent of GMAC and the Substitute Trustee under the Deed of Trust.

                                   JURISDICTION AND VENUE

   5. The United States District Court for the District of State has jurisdiction under 28 U.S.C.

       §1331. Venue is appropriate in this District under 28 U.S.C. § 1391(b)(1), (b)(2), and (c).

                                   FACTUAL ALLEGATIONS

   6. The borrower under the Deed of Trust was designated as Your Name.

   7. Your Name is now the sole borrower under the Deed of Trust.

   8. Under the Deed of Trust, the original beneficiary and nominee was designated as

       Mortgage Electronic Registration Systems, Inc. (MERS).

   9. On April 8, 2010, MERS assigned its rights under the Deed of Trust to GMAC.




                                                2
10. The trustee under the Deed of Trust was designated as Trustee’s Name from Deed of

   Trust.

11. The lender under both the Deed of Trust and the Note was Pulte Mortgage.

12. On April 8, 2010, MERS purported to assign its interest in the Deed of Trust to GMAC.

13. MERS attempted this transfer via an affidavit signed by Jeffrey Stephan (“MERS

   Affidavit”).

14. Jeffrey Stephan is listed as the Vice President of MERS.

15. On the MERS Affidavit, Jeffrey Stephan’s purported signature is entirely illegible and

   amounts to a scribble on the page. The signature is adjacent to what appears to be a

   rubber stamp of his name, more than half of which is unreadable.

16. On the same day that Jeffrey Stephan signed the MERS affidavit, GMAC appointed

   Professional Foreclosure Corp. as the Substitute Trustee.

17. GMAC attempted to make this appointment by affidavit (“GMAC Affidavit”).

18. The GMAC Affidavit was also signed by Jeffrey Stephan. On this affidavit, he is listed

   as the Limited Signing Officer of GMAC.

19. The original Note stated that the borrower owed to Pulte Mortgage the sum of

   $595,768.00, at a variable interest that started at 4.375%.

20. Under Paragraph 4 of the Note, the interest rate was set to adjust in April, 2009.

21. This adjustment was set to occur five years after Your Name purchased the property.

22. At the time that Your Name applied for the loan, Your Name’s income was

   approximately $87,000 per year.

23. Upon information and belief, the income of Your Name did not qualify Your Name for a

   loan in this amount and under these terms.




                                             3
24. Upon information and belief, Defendant Pulte Mortgage knew that Your Name would be

   unable to afford the mortgage upon the adjustment of the interest rate.

25. Upon information and belief, Defendant GMAC knew that Your Name would be unable

   to afford the mortgage upon the adjustment of the interest rate.

26. Upon information and belief, Pulte Mortgage pre-sold Your Name’s mortgage to GMAC.

27. Even before the time of the closing, GMAC was the ultimate recipient of Your Name’s

   mortgage.

28. During the time period between closing and GMAC’s assumption of the mortgage, Pulte

   Mortgage acted as the loan holder.

29. GMAC paid fees to Pulte Mortgage, in its capacity as the loan originator, for acting as the

   loan holder.

30. This fee arrangement was not disclosed to Your Name.

31. Your Name received no benefit from this undisclosed financial arrangement between

   Pulte Mortgage and GMAC.

32. At some point in 2009, Your Name fell behind in her mortgage payments. She

   subsequently received a Notice of Default from her lender.

33. In May of 2010, as Your Name was leaving her home to go to work, Defendant John Doe

   came to the property. Defendant John Doe explained that he had purchased her home at a

   foreclosure sale and asked when she would be leaving. This is the first time Your Name

   learned that GMAC had contemplated a foreclosure proceeding.

34. At no point did Your Name receive any foreclosure notices from GMAC Mortgage.

35. At no point did Your Name receive any foreclosure notices from Professional

   Foreclosure Corp.




                                             4
36. The Deed of Trust contains at Paragraph 22 a clause named “Acceleration; Remdies.”

   This clause states that upon the Borrower’s breach of any term of the Deed of Trust, the

   Lender must send to the Borrower a notice prior to acceleration (“pre-acceleration

   notice”).

37. This clause also stated the form in which the notices were to be sent.

38. GMAC never sent any such notice to Your Name.

39. Professional Foreclosure Corp. never sent any such notice to Your Name.

40. Your Name never received any such notice.

41. Paragraph 22 also called for a notice to be sent to the Borrower in the event that the

   Lender elected to accelerate the amounts due under the Note.

42. GMAC never sent any such notice to Your Name.

43. Professional Foreclosure Corp. never sent any such notice to Your Name.

44. Your Name never received any such notice.

45. The foreclosure proceeded notwithstanding the lack of these notices. John Doe

   purchased the property thereafter.

                        COUNT I – BREACH OF CONTRACT

46. Plaintiff incorporates fully the allegations in paragraphs 1 through 45 as if fully re-written

   herein.

47. Plaintiff’s Deed of Trust is a binding contract to which all Defendants, except John Doe,

   are a party.

48. Defendants GMAC and Professional Mortgage Corp. failed to provide the Pre-

   Acceleration Notice under the Deed of Trust.




                                              5
49. Defendants failed to send any and all acceleration, default, and foreclosure notices to

   Plaintiff in the manner required by the Deed of Trust.

50. These failures constitute breaches of the Deed of Trust.

51. The foreclosure of Plaintiff’s property at Your Address proximately resulted from these

   breaches.

                         COUNT II – GROSS NEGLIGENCE

52. Plaintiff fully incorporates paragraphs 1 through 51 as if fully re-written herein.

53. In carrying out the obligations under the Deed of Trust, Defendants GMAC and

   Professional Mortgage Corp. owed Plaintiff a duty to act in good faith and fair dealing.

54. Defendants GMAC and Professional Mortgage Corp. knew of their obligations to provide

   a Pre-Acceleration Notice.

55. Defendants GMAC and Professional Mortgage Corp. failed to send any other foreclosure,

   acceleration, and default notices designated per Paragraph 22 of the Deed of Trust.

56. Defendants GMAC and Professional Mortgage Corp. knew of their obligations pursuant

   to Paragraph 22 of the Deed of Trust.

57. The purported assignments conducted by Jeffrey Stephan were void on the grounds that

   he had no authority to sign affidavits on behalf of both MERS and GMAC.

58. As the assignments conducted by Jeffrey Stephan were invalid, the foreclosure was

   wrongful.

59. Defendants GMAC and Professional Mortgage Corp. intentionally failed to perform their

   duties to act in good faith and fair dealing.

60. This intentional failure was made with reckless disregard of Plaintiff’s property.




                                              6
  61. Plaintiff lost her property at foreclosure as a result of the Defendants GMAC and

     Professional Mortgage Corp.’s gross negligence.

   COUNT III – INTENTIONAL VIOLATION OF THE DUTY OF GOOD FAITH

  62. Plaintiff incorporates fully the allegations in paragraphs 1 through 61 as if fully re-written

     herein.

  63. Defendants GMAC and Professional Mortgage Corp. had obligations to carry out their

     duties under the Deed of Trust in good faith and to deal fairly with Plaintiff.

  64. Defendants GMAC and Professional Mortgage Corp.’s conduct in foreclosing on the

     property was in bad faith.

  65. The purported assignments conducted by Jeffrey Stephan were void on the grounds that

     he had no authority to sign affidavits on behalf of both MERS and GMAC.

  66. As the assignments conducted by Jeffrey Stephan were invalid, the foreclosure was

     wrongful.

  67. Defendants GMAC and Professional Mortgage Corp.’s improper conduct was carried out

     for their own pecuniary gain.

COUNT IV – WRONGFUL FORECLOSURE FOR FAILING TO ADHERE TO POWER
                 OF SALE NOTICE REQUIREMENTS

  68. Plaintiff incorporates fully the allegations in paragraphs 1 through 67 as if fully re-written

     herein.

  69. State law required that notice of the pending foreclosure sale be sent to Plaintiff’s address

     at least ____ days before the sale.

  70. Defendants GMAC and Professional Mortgage Corp. failed to submit the statutorily

     requisite notice to Plaintiff’s address, yet conducted the foreclosure sale anyway.




                                                7
COUNTS VI and VII – ABUSE OF PROCESS AND MALICIOUS PROSECUTION

71. Plaintiff incorporates fully the allegations in paragraphs 1 through 70 as if fully re-written

   herein.

72. Defendants GMAC and Professional Mortgage Corp. intentionally and wrongfully

   instituted the foreclosure action knowing that they failed to follow the requirements in the

   Deed of Trust and the foreclosure law of State and knowing that the assignments

   conducted by Jeffrey Stephan were void.

73. Defendants knew that such an action would result in a wrongful foreclosure.

74. Defendants instituted the foreclosure proceedings for their pecuniary gain.

        COUNT VIII – VIOLATIONS OF THE TRUTH IN LENDING ACT

75. Plaintiff incorporates fully the allegations in paragraphs 1 through 74 as if fully re-written

   herein.

76. In violation of the federal Truth In Lending Act, Pulte Mortgage extended credit to Your

   Name without regard to the consumer’s repayment ability as of the time of the loan

   consummation.

77. GMAC acted in concert with Pulte Mortgage to extend this credit.

78. GMAC acted without regard to repayment ability of Your Name.

79. Pulte Mortgage overstated the assets, income, collateral, or other financial information in

   order to qualify Your Name for the adjustable rate mortgage in the amount of

   $595,768.00.

80. GMAC was aware of this overstatement.

81. Pulte Mortgage concealed this overstatement from Your Name.




                                              8
82. Pulte Mortgage failed to disclose certain finance charges on the HUD-1 statement that

   were to be imposed as a part of the extension of credit in the form of the mortgage and/or

   failed to explain how those charges were to be determined.

83. Neither GMAC nor Pulte Mortgage disclosed the payments made to and received by

   Pulte Mortgage for its pre-selling and holding the mortgage for GMAC.

84. This fee arrangement was paid in the form of an unlawful yield spread premium,

   undisclosed to the borrower, but paid for by her in the form of higher payments or

   interest over the life of the loan.

85. Defendants GMAC and Pulte Mortgage concealed these facts from Your Name.

86. This concealment prevented Your Name from readily discovering the undisclosed acts.

87. Your Name was duly diligent in ascertaining these violations.

   COUNT IX – VIOLATIONS OF THE REAL ESTATE AND SETTLEMENT
                       PROCEDURES ACT

88. Plaintiff incorporates fully the allegations in paragraphs 1 through 87 as if fully re-written

   herein.

89. Defendant Pulte Mortgage failed to provide a Good Faith Estimate in the time and

   manner as required by the Real Estate and Settlement Procedures Act.

90. Defendant Pulte Mortgage’s conduct as holding the pre-sold loan for GMAC amounts to

   acting as a straw man for which the borrower received no value.

91. Defendants’ misconduct was concealed from Your Name, which prevented her from

   readily discovering the misconduct, which she was duly diligent in attempting to

   ascertain.




                                              9
COUNTS X, XI, XII, XIII – FRAUD, FRAUDULENT CONCEALMENT, FRAUDULENT
        MISREPRESENTATION, NEGLIGENT MISREPRESENTATION

  92. Plaintiff incorporates fully the allegations in paragraphs 1 through 91 as if fully re-written

     herein.

  93. During the time of the loan application, Defendant Pulte Mortgage misrepresented to

     Your Name (a) her ability to repay the loan and (b) her qualifications for the loan in the

     amount of $595,768.00.

  94. During the time of the closing, Defendant Pulte Mortgage misrepresented to Your Name

     (a) her ability to repay the loan; (b) her qualifications for the loan in the amount of

     $595,768.00; (c) the identity of the recipients of fees to be paid on the HUD-1; (d) the

     fees that Pulte Mortgage was paid by GMAC; (e) that her loan was pre-sold to GMAC;

     and (f) that the price of her loan was based on an inflated appraisal report.

  95. Defendant Pulte Mortgage made these misrepresentations knowing they were false, with

     the purpose of inducing Your Name to obtain credit from Pulte Mortgage.

  96. Defendant Pulte Mortgage had an obligation to disclose the truth.

  97. Your Name relied on these misrepresentations and had the right to do so.

  98. These misrepresentations denied Your Name the opportunity to find cheaper credit and/or

     a non-predatory loan. As a result, she has been injured in that she paid more for the

     credit she was defrauded into obtaining and that her predatory loan was the proximate

     cause of her foreclosure.

          COUNT XIV – CONSPIRACY TO COMMIT MORTGAGE FRAUD

  99. Plaintiff incorporates fully the allegations in paragraphs 1 through 98 as if fully re-written

     herein.




                                               10
 100.      Pulte Mortgage conspired with GMAC to carry out the acts described in Counts X

    through XIII.

 101.      GMAC communicated, consulted, and cooperated with Pulte Mortgage in

    carrying out the acts described in Counts X through XIII.

 102.      These communications, consultations, and cooperations took place at the time

    when Pulte Mortgage negotiated the sale of Your Name’s mortgage to GMAC.

 103.      At all times pertinent to these allegations, GMAC intended (1) to enter the

    conspiracy with Pulte Mortgage and (2) that Pulte Mortgage would carry out as a co-

    conspirator the acts described in Counts X through XIII.

 104.      Your Name was injured by the conspiracy in that she was denied the opportunity

    to find cheaper credit, that she was sold and made payments under a predatory loan, and

    that such fraud and predatory lending practices were the proximate cause of her

    foreclosure.

COUNTS XV, XVI, XVII – CIVIL RICO, CIVIL CONSPIRACY TO COMMIT MAIL
      FRAUD, AND CIVIL CONSPIRACY TO COMMIT WIRE FRAUD

 105.      Plaintiff incorporates fully the allegations in paragraphs 1 through 104 as if fully

    re-written herein.

 106.      Defendants GMAC and Pulte Mortgage engaged in a mortgage lending enterprise

    to undertake the conduct described in Counts X through XIV.

 107.      This pattern of activities resulted in the loss of Your Name’s home and the

    financial damages she suffered from her predatory loan.

 108.      In furtherance of these acts, Defendants GMAC and Pulte Mortgage used the

    interstate mail and wire system to communicate with one another and to Your Name.




                                            11
     109.      Defendants undertook such acts for their own pecuniary gain to the detriment of

        Your Name as described in Counts X through XIV.

     110.      As set forth in Count VIII, Defendants GMAC and Pulte Mortgage concealed

        these acts from Your Name, which prevented her from discovering them, despite her

        diligence in attempting to ascertain the truth.

                                     PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against Defendants for the following relief:

A.      An injunction preventing John Doe from entering the property or attempting to take any

action to take possession of the property, including, but not limited to, enjoining any eviction

proceedings, pending the resolution of the matters raised in this Complaint;

B.      A set-aside of the foreclosure sale as an equitable remedy or, alternatively, damages to

Plaintiff resulting from the wrongful foreclosure or breach of contract as a remedy at law;

C.      Compensation to Plaintiff for Defendants’ Gross Negligence, violations of the Duty of

Good Faith and Fair Dealing, Abuse of Process and/or Malicious Prosecution, Fraud, Fraudulent

Concealment, Fraudulent Misrepresentation, Negligent Misrepresentation, Conspiracy to

Commit Mortgage Fraud, Civil RICO, Civil Conspiracy to Commit Wire Fraud, and Civil

Conspiracy to Commit Mail Fraud;

D.      Punitive damages against GMAC, Pulte Mortgage, and Professional Foreclosure Corp.;

E.      Statutory damages for violations of the Truth In Lending Act and the Real Estate and

Settlement Procedures Act; and

F.      Compensation to Plaintiff for attorney fees, court costs, and such other relief as this Court

may deem appropriate.




                                                  12
Respectfully submitted,

_____________________________

Your Name, Pro Se




                                13
                                         JURY DEMAND

        Plaintiffs request a trial by jury with respect to all matters and issues properly triable by a

jury.

DATED:___________________

                                               Respecfully submitted,


                                               Your Name, Pro Se

				
DOCUMENT INFO