Lopez v. LoanCare, No. 2:2020cv00229 - Document 18 (D. Nev. 2020)
Court Description: ORDER granting 17 Stipulation; Amended Complaint deadline: within 7 days of entry of this order. Signed by Magistrate Judge Daniel J. Albregts on 7/6/2020. (Copies have been distributed pursuant to the NEF - JM)
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Lopez v. LoanCare Doc. 18 Case 2:20-cv-00229-JAD-DJA Document 17 Filed 07/02/20 Page 1 of 2 1 2 3 4 5 6 7 8 9 David Krieger, Esq. Nevada Bar No. 9086 Shawn Miller, Esq. Nevada Bar No. 7825 KRIEGER LAW GROUP, LLC 2850 W. Horizon Ridge Pkwy., Suite 200 Henderson, Nevada 89052 Phone: (702) 848-3855 Email: dkrieger@kriegerlawgroup.com Email: smiller@kriegerlawgroup.com Attorneys for Plaintiff, ESTHER LOPEZ UNITED STATES DISTRICT COURT 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 DISTRICT OF NEVADA 11 12 ESTHER LOPEZ, 13 14 15 16 17 18 Case No.: 2:20-cv-00229-JAD-DJA Plaintiff, STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT v. LOANCARE; NEW REZ, LLC; and NEW RESIDENTIAL MORTGAGE, LLC; Defendants. 19 20 21 22 STIPULATION AND ORDER TO AMEND COMPLAINT ESTHER LOPEZ (“Plaintiff”), by and through her counsel of record, together with Defendant LOAN CARE (“LoanCare”), by and thorugh its counsel of record, 23 24 (collectively the “Parties”) hereby respectfully submit the following Stipulation 25 permitting the Plaintiff to file the proposed first amended complaint (“Proposed FAC”), 26 27 attached hereto as Exhibit “1”. 28 -1- Dockets.Justia.com Case 2:20-cv-00229-JAD-DJA Document 17 Filed 07/02/20 Page 2 of 2 1 2 3 In part, this case is a RESPA case and Plaintiff has alleged servicing errors on her real estate loan. Plaintiff seeks to add two new parties in the Proposed FAC which acted as servicers or subservicers on Plaintiff’s real estate loan: (1) NEW REZ, LLC; and (2) 4 5 NEW RESIDENTIAL MORTGAGE, LLC. The FAC also clarifies the claims and 6 allegations against the Defendants. 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 IT IS SO STIPULATED this July 2, 2020. /s/ Shawn W. Miller . David H. Krieger, Esq. Shawn W. Miller, Esq. KRIEGER LAW GROUP, LLC 2850 W. Horizon Ridge Parkway, Suite 200 Henderson, Nevada 89052 /s/ Gary E. Schnitzer ___ Gary E. Schnitzer, Esq. KRAVITZ, SCHNITZER & JOHNSON, CHTD. 8985 South Eastern Avenue, Suite 200 Las Vegas, Nevada 89123 Attorneys for Plaintiff Esther Lopez Attorneys for Defendant Loan Care, LLC . 14 15 16 17 ORDER 18 19 20 21 22 IT IS ORDERED that this Stipulation and Order to Amend the Complaint is hereby GRANTED. IT IS FURTHER ORDERED, that the Plaintiff shall file the Proposed FAC within 23 24 25 26 seven (7) of entry of this Order. ______________________________________ Daniel J. AlbregtsCOURT JUDGE U.S. DISTRICT United States Magistrate Judge 27 28 July 6, 2020 DATED: ______________________________ -2- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 1 of 35 EXHIBIT 1: (PROPOSED FIRST AMENDED COMPLAINT) Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 2 of 35 1 2 3 4 5 6 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 David Krieger, Esq. Nevada Bar No. 9086 Shawn Miller, Esq. Nevada Bar No. 7825 KRIEGER LAW GROUP, LLC 2850 W. Horizon Ridge Pkwy. Suite 200 Henderson, Nevada 89052 Phone: (702) 848-3855 Email: dkrieger@kriegerlawgroup.com Email: smiller@kriegerlawgroup.com Attorneys for Plaintiff, ESTHER LOPEZ UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 11 12 13 ESTHER LOPEZ, 14 15 16 17 18 Case No.: 2:20-cv-00229-JAD-DJA Plaintiff, FIRST AMENDED COMPLAINT (JURY TRIAL DEMANDED) v. LOANCARE; NEW REZ, LLC; and NEW RESIDENTIAL MORTGAGE, LLC; Defendants. 19 20 21 22 For this Complaint, Plaintiff ESTHER LOPEZ, by undersigned counsel, states as follows: 23 24 JURISDICTION 25 26 27 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 as this action arises under the Dodd-Frank Wall Street Reform and Consumer Protection Act(DFA), the Truth 28 -1- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 3 of 35 1 2 3 in Lending Act (TILA), 15 U.S.C. §§ 1601, et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601, et seq. 2. This action is specifically filed to enforce regulations promulgated by the 4 5 Consumer Finance Protection Bureau (CFPB) that became effective on January 10, 2014, 6 specifically, 12 C.F.R. §§ 1024.35, et seq., of Regulation X. 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 3. This action also arises out of Defendants’ violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). 4. This action also arises under Nevada Revised Statutes Chapter 598.0918 (“NRS 11 12 598”) and Nevada Revised Statutes Chapter 41.600 et seq. (“NRS 41.600”) for 13 Defendants’ deceptive trade practices as further described herein. 14 15 16 17 5. Plaintiff alleges as follows upon personal knowledge as to Plaintiff and Plaintiff’s own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by Plaintiff’s attorneys. 18 19 6. This Court has original jurisdiction over Plaintiff’s RESPA/TILA and FDCPA 20 claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction exists (as applicable) 21 22 23 24 pursuant to 28 U.S.C. § 1367. 7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) & (c), because Plaintiff resides within the District of Nevada, a substantial portion of the events or 25 26 omissions giving rise to the claim occurred in this District, and Defendants regularly 27 conducts business in this District. 28 -2- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 4 of 35 PARTIES 1 2 3 8. Plaintiff ESTHER LOPEZ (“Plaintiff”) is an adult individual residing in Pahrump, Nevada. 4 5 9. Plaintiff is also an “elderly person” as defined by NRS 598.0933. 6 10. Defendant LOANCARE (“LoanCare”) is a mortgage servicer or sub-servicer 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 and was doing business in the State of Nevada at all times herein. 11. Upon information and belief, Defendant NEW REZ (“NewRez”) is a foreign limited liability company engaged in mortgage servicing or sub-servicing and was doing 11 12 13 business in the State of Nevada at all times herein. 12. Upon information and belief, Defendant NEW RESIDENTIAL MORTGAGE 14 15 16 (“NRM”) is a foreign limited liability company engaged in mortgage servicing or subservicing and was doing business in the State of Nevada at all times herein. 17 LOAN SERVICING 18 19 20 13. Plaintiff is the owner of real property located at and commonly known as 71 E. Calvada Blvd, Pahrump, NV 89048 (“Property”). 21 22 23 24 14. Plaintiff, at all times relevant, has maintained and currently maintains the Property as Plaintiff’s primary, principal residence. 15. Plaintiff has a mortgage loan on the Property, evidenced by a promissory note 25 26 (“Note”) and secured by a deed of trust interest (“DOT”), which shall collectively be 27 referred to herein as the “Loan.” 28 -3- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 5 of 35 1 2 3 16. The Loan was incurred to purchase the Property and as such, was primarily incurred for family, personal or household purposes. 17. Accordingly, the Loan meets the definition of a “debt” under 15 U.S.C. § 4 5 6 1692a(5). 18. Upon information and belief, in 2019, New Residential Investment Corp., a real 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 estate investment trust company, acquired selected assets from Ditech Financial, including a mortgage servicing rights portfolio. 19. The servicing rights on Plaintiff’s mortgage Loan was one of the assets that was 11 12 transferred from Ditech Financial to New Residential Investment Corp. as part of the 13 acquisition. 14 15 16 17 20. Upon information and belief, New Residential Investment Corp. did not keep the servicing rights to Plaintiff’s Loan but transferred the servicing rights to NRM, one of its subsidiaries or affiliates. 18 19 21. Upon information and belief, NRM is principally responsible for the servicing 20 of the Loan and engaged or employed the services of LoanCare and NewRez as agents 21 22 23 24 and entities to act as sub-servicers of the Loan. 22. As such, NRM via respondeat superior is legally responsible, in whole or in part, for the acts and omissions of its agents LoanCare and NewRez as it relates to the 25 26 servicing of the Loan. 27 28 -4- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 6 of 35 1 2 3 23. Upon information and belief, LoanCare and NewRez are agents of NRM and acting on behalf of or at the direction of NRM, and are affiliates, subsidiaries or part of a corporate family structure created, at least in part, to service loans. 4 5 24. On or about April 15, 2019, Plaintiff received correspondence from LoanCare, 6 dated April 10, 2019, indicating that servicing of the Loan had transferred from Ditech 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 Financial to LoanCare, effective April 1, 2019. 25. On or about April 25, 2019, Plaintiff received a mortgage statement from NewRez, dated April 16, 2019, stating that the Loan was in default and demanding 11 12 13 payment in the amount of $2,246.08, including an “unpaid amount” of $1,952.32. 26. The April 25, 2019 mortgage statement from NewRez also stated that the Loan 14 15 16 17 is subserviced by LoanCare on behalf of NRM. 27. The April 25, 2019 mortgage statement from NewRez (along with all subsequent mortgage statements) notified Plaintiff that any “Notices of Error” or 18 19 “Requests for Information” should be sent to the following address (hereinafter, the 20 “Designated Address”): 21 22 23 24 25 LoanCare Attn: Mortgage Resolution P.O. Box 8068 Virginia Beach, VA 23450 28. At the time the Defendants acquired the servicing rights in the Loan, Defendants 26 27 28 asserted that the Loan was in default in an amount in excess of $1,200.00. 29. Accordingly, the Defendants are, and at all times herein were, acting as -5- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 7 of 35 1 2 3 default mortgage servicers for the Loan and were at all relevant times herein acting as a “debt collector” as the term is defined by 15 U.S.C. § 1692a(6). 30. In January 2013, the CFPB issued a number of final rules concerning mortgage 4 5 markets in the United States, pursuant to the DFA, Public Law No. 111-203, 124 Stat. 6 1376 (2010). 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 31. Specifically, on January 17, 2013, the CFPB issued the RESPA (Regulation X) and TILA (Regulation Z) Mortgage Servicing Final Rules, 78 F.R. 10901 (February 14, 2013) and 78 F.R. 10695 (Regulation X) (February 14, 2013), which became effective on 11 12 13 January 10, 2014. 32. The Loan in the instant matter is a "federally related mortgage loan" as said term 14 15 16 17 is defined by 12 C.F.R. § 1024.2(b). 33. Defendants are subject to the aforesaid Regulations and do not qualify for the exception for "small servicers”, as such term is defined in 12 C.F.R. § 1026.41(e)(4), nor 18 19 do Defendants qualify for the exemption for a “qualified lender”, as such term is defined 20 in 12 C.F.R. § 617.700. 21 22 23 24 34. Plaintiff is asserting claims for relief against Defendants for breaches of specific rules under Regulation X and Regulation Z, as set forth, infra. 35. Mortgage “Servicing” means (among other things) using consumer reports and 25 26 furnishing information to consumer reporting agencies. See FTC v. Green Tree Servicing, 27 LLC, Case No. 0:15-cv-02064-SRN-JSM, Doc. No. 5 at p. 7 (D. MN. April 23, 2015). 28 -6- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 8 of 35 1 2 3 36. Plaintiff has a private right of action under RESPA pursuant to 12 U.S.C. § 2605(f) for the claimed breaches and such action provides for remedies including actual damages, costs, statutory damages, and attorneys’ fees. 4 5 6 37. Additionally, Defendants have attempted to collect on the Loan and therefore engaged in “communications” as defined in 15 U.S.C. § 1692a(2). 7 THE RESPA VIOLATIONS 8 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 9 10 38. Despite numerous statements, default notices, and collection letters from the 11 Defendants, Plaintiff has tendered every payment owed on the Loan, on time, and the Loan 12 13 14 15 should show the Plaintiff is current on the Loan. 39. Accordingly, on or about May 18, 2019, Plaintiff (through counsel) sent correspondence to LoanCare, the designated agent to receive Notices of Error and 16 17 18 Requests for Information. 40. Plaintiff’s correspondence was captioned or otherwise titled “Notice of Error 19 20 21 22 Pursuant to 12 C.F.R. § 1024.35(b); and Request for Information Pursuant to 12 C.F.R. § 1024.36” (“NOE 1”). 41. NOE 1 was sent via certified mail to the Designated Address. 23 24 25 42. NOE 1 requested the following information from Defendants: (a) the identity and address for the master servicer, current servicer, and current 26 27 owner of the Loan; (b) current payoff balance, (c) a life of loan mortgage transactional 28 -7- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 9 of 35 1 2 3 history along with a plain English description of any codes in the account history; and (d) the servicing notes related to the Loan. 43. Additionally, NOE 1 also described three errors that needed to be corrected with 4 5 regard to the Loan: (a) Defendants were including the name of Joe Lopez, Plaintiff’s 6 deceased spouse, on Defendants’ notices and statements, causing Plaintiff to relive hard 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 memories of his passing and requested that Defendants remove the name of Joe Lopez from future communications; (b) Defendants were sending Plaintiff’s account statements to Haines & Krieger, LLC and Plaintiff requested that practice be discontinued and that 11 12 statements be sent directly to Plaintiff; and (c) Plaintiff notified Defendants that the Loan 13 accounting was in error because it failed to account for all of Plaintiff’s payments, including 14 15 16 17 the April 2019 Payment, and Plaintiff requested that any fees, charges or expenses incurred as a result of the errors should be removed from Plaintiff’s account. 44. Defendant LoanCare received NOE 1 on May 24, 2019 at the Designated 18 19 Address, as seen below: 20 21 22 23 24 25 45. Defendants failed to acknowledge receipt of NOE 1, as required. 26 27 28 46. Defendants failed to provide a substantive response to the request for information in NOE 1 within thirty (30) judicial days, including failing to provide the -8- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 10 of 35 1 2 3 information requested by Plaintiff, failing to provide a written objection to the information requested by Plaintiff, and failing to provide any response at all to the information requested by Plaintiff in NOE 1. 4 5 47. Defendants also failed to provide a substantive response to the notice of errors 6 in NOE 1 within thirty (30) judicial days, including failing to correct or respond to the 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 servicing errors Plaintiff raised in NOE 1, failing to provide a written objection to the servicing errors Plaintiff raised in NOE 1, and failing to provide any response at all regarding the servicing errors raised by Plaintiff in NOE 1. 11 12 48. Because Defendants failed to respond at all to NOE 1, on or about June 25, 13 2019, Plaintiff sent additional correspondence to LoanCare, the designated agent to 14 15 16 17 receive requests for information and notices of error. 49. Plaintiff’s second letter was captioned or otherwise titled “Second Notice of Error pursuant to 12 C.F.R. § 1024.35(b); and Second Request for Information pursuant 18 19 20 to 12 C.F.R. §1024.36” (“NOE 2”). 50. NOE 2 was sent via certified mail to the Designated Address. 21 22 23 24 51. NOE 2 requested the same information that Plaintiff had requested in NOE 1 as detailed above, and Plaintiff demanded that Defendants not ignore her requests for information and provide a response. 25 26 27 28 -9- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 11 of 35 1 2 3 52. NOE 2 also requested the correction of the same errors outlined and described in NOE 1 as detailed above, and Plaintiff demanded that Defendants not ignore her notices of error and provide a response. 4 5 6 53. Defendants received NOE 2 on July 1, 2019 at its Designated Address, as seen below: 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 14 54. In response to the requests for information set forth in NOE 2, Defendants did provide Plaintiff with a payoff statement and also provided Plaintiff with the identity of the 15 16 17 Loan servicers. 55. However, without objection, explanation or excuse, Defendants again failed to 18 19 20 21 provide Plaintiff with a complete life of loan mortgage transaction history as requested in NOE 2, instead providing a one page “Account History” that only included eleven (11) transactions on the Loan. The purported “Account History” was missing years of payments 22 23 and transactions on the Loan and was useless in determining why the Defendants were 24 reporting the Loan in default. Defendants did not provide a written objection to producing 25 26 a complete life of loan history and essentially provided no meaningful response at all. 27 28 -10- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 12 of 35 1 2 3 56. In response to Plaintiff’s request for the Loan servicing notes in NOE 2, the Defendants ignored the request completely. The Defendants failed to provide the servicing notes, failed to provide a written objection as to why the servicing notes were not provided, 4 5 6 and failed to respond at all to Plaintiff’s request for servicing notes in NOE 2. 57. Defendant also failed to provide a proper, substantive response to the notice of 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 errors raised in NOE 2, correct the errors raised in NOE 2, or provide a proper objection to the servicing errors raised in NOE 2. 58. Rather than respond to any of the notice of errors raised in NOE 2, LoanCare 11 12 dismissively ignored the issues, claiming Plaintiff did not “clearly identify the alleged 13 servicing error.” 14 15 16 17 59. Additionally, despite having been designated as the entity to whom requests for information and notices of error should be sent, LoanCare attempted to side-stepped its obligations by claiming that “because LoanCare is the sub-servicer of the mortgage, we 18 19 are limited to answering questions related specifically to the servicing of the mortgage. 20 New Residential Mortgage may be able to address origination questions.” LoanCare did 21 22 23 24 not even identify what errors it thought were “origination questions.” 60. After receiving NOE 2, Defendants continued to include Plaintiff’s deceased husband’s name on their written communications to Plaintiff multiple times. 25 26 27 28 -11- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 13 of 35 61. After receiving NOE 2, Defendants continued to mail account statements, 1 2 3 notifications and communications to Haines & Krieger, LLC instead of to Plaintiff multiple times. 4 5 62. After receiving NOE 2, Defendants failed to account for all of Plaintiff’s 6 payments and continued to report missing payments, past due amounts, and unpaid 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 balances on the Loan account. 63. In fact, instead of responding to Plaintiff in a meaningful way in an effort to correct the servicing errors and accurately applying all of Plaintiff’s payments to the Loan, 11 12 13 the Defendants doubled downed, sending Plaintiff multiple default notices. 64. Between April 2019 and January 2020, Defendants sent no less than nine (9) 14 15 16 17 default notices to Plaintiff, erroneously claiming Plaintiff was in default on the Loan and threatening to foreclose on the Property and terminate Plaintiff’s ownership in her home. 65. In one last attempt to obtain information and resolve the ongoing servicing 18 19 errors on the Loan, Plaintiff (yet again) mailed a third letter to Defendants captioned or 20 otherwise titled “Third Notice of Error pursuant to 12 C.F.R. § 1024.35(b); and Third 21 22 23 24 Request for Information pursuant to 12 C.F.R. §1024.36” (“NOE 3”). 66. NOE 3 was sent via certified mail to the Designated Address. 67. In NOE 3, Plaintiff again outlined the servicing errors, including that 25 26 Defendants had failed to remove the name of her deceased spouse from notices and 27 communications, had failed to send her account statements and notices directly to Plaintiff 28 -12- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 14 of 35 1 2 3 rather than Haines & Krieger, LLC, and that Plaintiff had paid all payments on the Loan on time and that Defendants needed to review and properly account for her payments. 68. In NOE 3, Plaintiff again requested the complete life of loan history and the 4 5 servicing notes so that she could pinpoint the accounting errors Defendants were making 6 on the Loan. 7 8 69. Defendants received NOE 3 August 30, 2019, as seen below: 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 14 15 16 17 70. Defendants failed (or refused) to acknowledge receipt of NOE 3 within five (5) business days. 71. To date, Defendants have completely ignored NOE 3, failing to respond to the 18 19 substantive requests for information and notice of errors at all, failing to provide any 20 objections or reasons why Defendants could not comply with NOE 3, failing to provide 21 22 23 24 any of the information requested (including a complete life of loan history and account servicing notes), failing to correct any of the errors in NOE 3, and failing to respond at all. 72. Remarkably, after receiving NOE 3 Defendants have continued on numerous 25 26 27 occasions to send written communications and statements to Plaintiff still showing the name of Plaintiff’s deceased spouse, Joe Lopez. 28 -13- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 15 of 35 1 2 3 73. After receiving NOE 3, Defendants have continued on numerous occasions to send written communications and statements to Haines & Krieger, LLC rather than directly to Plaintiff. 4 5 74. After receiving NOE 3, Defendants have failed to correct the Loan accounting, 6 continuing to send erroneous default notices and making onerous demands that Plaintiff pay 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 amounts that are not due, including but not limited to the following: August 19, 2019 September 18, 2019 October 21, 2019 October 21, 2019 November 18, 2019 December 19, 2019 $1,338.90 $1,353.90 $1,596.18 $1,368.90 $1,380.89 $1,395.89 75. Additionally, Defendants have assessed Plaintiff with Loan charges, fees and 14 15 16 17 expenses that were not justified or warranted but were based on concocted past due balances and sham defaults conjured up out of nothing by the Defendants. 76. As a result, Defendants acted improperly in regards to its servicing of the Loan, 18 19 20 21 22 23 24 25 26 27 28 or in its dealings with the Loan, by engaging in the following acts: • Failing to properly account for all payments Plaintiff made in satisfaction of her obligations on the Loan; • Improperly alleging Plaintiff is in default of obligations on the Loan; • Failing to supply requested information in a timely manner that would enable Plaintiff to discover the root cause of the problems with the servicing of the Loan as required under 12 CFR § 1024.36; • Failing to correct errors in the servicing of the Loan of which Plaintiff has put Defendant on notice; -14- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 16 of 35 1 2 3 4 5 6 7 8 9 • Ignoring or failing to respond to properly served requests for information and notices of error; • Mischaracterizing the correct amount due on the Loan by providing multiple payoff statements, each stating an incorrect amount due to satisfy the Loan, and thus violative of both the FDCPA and Reg XZ; and • Assessing improper, wrongful, or otherwise unwarranted fees, charges and expenses on the Loan including, but not limited to numerous late fees, corporate advances, inspection fees, and other miscellaneous items. 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 77. All attempts and requests Plaintiff made to Defendants to have her mortgage 12 servicing corrected have fallen on deaf ears and any response Defendants have supplied 13 14 15 16 has been dismissive, vague, or otherwise unhelpful. Indeed, Plaintiff’s recent monthly statements continue to erroneously state she is in arrears and owes late fees and other default charges, which are not owed. 17 18 78. Rather than properly responding to attempts and requests Plaintiff has made to 19 correct Defendants’ errors, Defendants responded with threats of foreclosure by and 20 21 22 23 through its correspondence. 79. Moreover, Defendants’ improper actions have caused Plaintiff to incur costs, fees, and lost time in attempting to correct the errors and mistakes on the Loan. For 24 25 example, each of the certified mailings described above was a separate expense associated 26 with Plaintiff seeking correction of these issues with Defendants. 27 28 -15- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 17 of 35 1 2 3 80. Defendants’ wrongful and willful actions have caused Plaintiff to suffer emotional distress driven by the fear she might lose her home and be forced from her family home despite making all her timely monthly payments. Defendants are wrongfully 4 5 alleging Plaintiff to be in default, which has resulted in anxiety, depression, 6 embarrassment, fear, frustration, anger, loss of sleep, loss of appetite, chest pains, 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 headaches, feelings of helplessness and intimidation, illness, medical expenses, rage, and other emotional distress, as well as out of pocket expenses to dispute Defendants’ mistakes. As a result, Plaintiff has sought clinical treatment. 11 12 81. All attempts and requests for Defendants to correct its continued misapplication 13 of Plaintiff’s payments or provide a complete and accurate accounting of those payments 14 15 16 17 have fallen on deaf ears, and Defendants continue to threaten foreclosure. 82. Defendants continue to harass and assess inappropriate and unwarranted fees on Plaintiff’s mortgage account; fees which are a direct result of their own servicing errors. 18 19 83. Defendants continues to send improper and erroneous monthly mortgage 20 statements, which misstate both the amount of Plaintiff’s current amount due as well as 21 22 the amount necessary to pay off the Loan. 23 24 25 26 27 28 -16- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 18 of 35 THE FDCPA VIOLATIONS 1 2 3 84. As described above, Defendants have engaged in a persistent campaign of 4 5 6 7 deceptive and harassing collection abuse against Plaintiff in its attempts to collect the Loan. 85. Defendants sent Plaintiff multiple default notices and collection letters 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 8 9 regarding the Loan in which Defendants misrepresented the amount actually owed and 10 falsely threatening that Plaintiff is at risk of losing the Property due to the falsely alleged 11 12 13 14 failure to make timely payments on the Loan. 86. Each of Defendants’ collection communications received within the twelve months prior to filing the instant complaint contained language clearly stating “This 15 16 17 Communication is from a Debt Collector”. 87. As more fully described above, the defaults Defendants claimed against 18 19 20 21 Plaintiff were actually the result of Defendants’ own servicing errors and failures to properly apply Plaintiff’s payments, not Plaintiff’s failure to make timely payments. As a result, Defendants’ payment demands and threats of foreclosure were baseless, false and 22 23 24 misrepresented the status of the Loan and Defendants’ legal rights to collect. 88. As a result of Defendants’ illegal conduct in attempting to collect the Loan, 25 26 27 Plaintiff suffered severe emotional distress. Plaintiff suffered increased stress and anxiety, to the point she is reluctant to leave her home. Plaintiff’s increased stress manifested in 28 -17- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 19 of 35 1 2 3 various symptoms, including rashes, physical and mental fatigue, loss of appetite, heart and chest pains, and intense depression. Plaintiff has sought medical treatment for these conditions, and has incurred out of pocket expenses for treatment and medications to 4 5 combat them, as well as lost time spent with friends and family, gas costs and other out of 6 pocket expenses, in dealing with these collection violations. 7 8 VIOLATIONS OF NRS 598 ET SEQ 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 89. Nevada Revised Statutes 598 governs deceptive trade practices in Nevada. 11 12 90. Pursuant to NRS 598.0915(15), A person engages in a “deceptive trade practice” if, in the course of his or her business or occupation, he or she: … 13 14 15 (15) Knowingly makes any other false representation in a transaction. 16 17 18 91. Further, NRS 598.092(8) states 19 A person engages in a “deceptive trade practice” when in the course of his or her business or occupation he or she: 20 21 (8) Knowingly misrepresents the legal rights, obligations or remedies of a party to a transaction. 22 23 24 25 26 92. As stated in NOE 3 “Mrs. Lopez is elderly and widowed. She is over seventy (70) years old and these notices are causing her considerable distress.” (emphasis in original) 27 28 -18- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 20 of 35 1 2 3 93. In the instant case, Defendants made numerous false representations regarding the Loan and Plaintiff’s rights and obligations thereunder discussed, supra and preyed on her elderly and infirm status. 4 5 94. Specifically, Defendants threatened to foreclose on the Property and terminate 6 Plaintiff’s ownership in her home, representing that the Loan was in default (when it was 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 not) and that Plaintiff was behind on her payments (when she was not). Defendants also demanded Plaintiff pay more than was actually due on the Loan. 95. Defendants were aware at all times herein that Plaintiff was an elderly or 11 12 vulnerable person, and seized an opportunity to illicit illegal and improper fees and 13 charges given her infirm status. 14 15 16 17 96. Since Plaintiff is an “Older person” pursuant to Nevada Revised Statutes (NRS) 41.1395(4)(d), Defendants’ conduct violated NRS 41.1395. 97. Plaintiff is thus entitled to twice actual damages from Defendants as a result of 18 19 20 their conduct. 98. Plaintiff is also an “Older person” as defined by NRS 598.0933. Defendants’ 21 22 23 24 conduct thus violated NRS 598.0973, and Plaintiff is entitled to $12,500.00 in statutory damages for Defendant’s conduct. 99. Defendants’ actions violated NRS 598.0973 as Defendants: 25 26 a. knew Plaintiff was a “elderly person”; 27 28 -19- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 21 of 35 1 2 3 b. engaged in conduct in disregard of Plaintiff’s rights by seeking to collect monies knowingly not owed as well as punitively collecting through the false threat of an illegal foreclosure; 4 5 6 c. knew or should have known that its conduct was directed toward an elderly person (Plaintiff); 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 d. caused Plaintiff to suffer actual and substantial physical, emotional or economic damage as discussed herein and to be set forth more fully at trial; e. caused Plaintiff to suffer mental anguish; 11 12 f. caused Plaintiff to suffer emotional anguish; and also 13 g. caused Plaintiff the loss of assets which are essential to the health and welfare 14 15 16 17 of Plaintiff, such as her home and emotional health. COUNTS 1 THROUGH 3: VIOLATIONS OF 12 C.F.R. § 1024.36(d) (Failure to respond in a timely manner to a request for information issued pursuant to 12 C.F.R. § 1024.36) 18 19 20 100. Plaintiff restates and incorporates herein all of the statements and allegations contained in the preceding paragraphs in their entirety, as if fully rewritten. 21 22 23 24 101. 12 C.F.R. § 1024.36(a) provides, in relevant part, that a request for information may consist of “any written request for information from a borrower that includes the name of the borrower, information that enables the servicer to identify the borrower's 25 26 mortgage loan account, and states the information the borrower is requesting with respect 27 to the borrower's mortgage loan.” 28 -20- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 22 of 35 1 2 3 102. Comment 1 of the Official Interpretations of the CFPB to 12 C.F.R. § 1024.36(a) provides that “[a]n information request is submitted by a borrower if the information request is submitted by an agent of the borrower.” 4 5 6 103. 12 C.F.R. § 1024.36(d)(1) provides, in relevant part, that: [A] servicer must respond to an information request by either: 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 14 (i) Providing the borrower with the requested information and contact information, including a telephone number, for further assistance in writing; or (ii) Conducting a reasonable search for the requested information and providing the borrower with a written notification that states that the servicer has determined that the requested information is not available to the servicer, provides the basis for the servicer's determination, and provides contact information, including a telephone number, for further assistance 15 16 17 18 19 20 21 22 23 24 25 104. Furthermore, 12 C.F.R. § 1024.36(d)(2)(i) provides that: A servicer must comply with the requirements of paragraph (d)(1) of this section: (A) Not later than 10 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives an information request for the identity of, and address or other relevant contact information for, the owner or assignee of a mortgage loan; and (B) For all other requests for information, not later than 30 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the information request. 105. Plaintiff sent three requests for information (NOE 1, NOE 2, NOE 3)to 26 27 Defendants on or about May 18, June 25, and July 19, 2019. Plaintiff sent each request 28 -21- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 23 of 35 1 2 3 for information to Defendants at the Designated Address, an address self-designated by Defendants for the receipt of such correspondence pursuant to 12 C.F.R. § 1024.36(b). 106. Each request for information, in part, constituted a request for information 4 5 pursuant to 12 C.F.R. § 1024.36(a) as each requested information “with respect to the 6 borrower's mortgage loan.” 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 107. Defendants received all three requests for information as described above at the Designated Address. 108. Defendants were required to provide written notice to Plaintiffs that each 11 12 request for information was received by Defendants within five (5) days (excluding legal 13 public holidays, Saturdays, and Sundays). 14 15 16 17 109. Defendants failed to send written notice that NOE 1 and NOE 3 had been received. 110. Pursuant to 12 C.F.R. § 1024.36(d)(2)(i)(B), Defendants were required to 18 19 provide a substantive written correspondence to Plaintiff in response to the requests for 20 information “not later than 30 days (excluding legal public holidays, Saturdays, and 21 22 23 24 Sundays) after the servicer receives the information request” Deadlines”). 111. As detailed above, Defendants completely failed to respond at all to NOE 1 25 26 (“RFI Response and NOE 3, let alone within the RFI Response Deadlines. 27 28 -22- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 24 of 35 112. Additionally, Defendants failed to provide any meaningful response to 1 2 3 Plaintiff’s request for a complete life of loan history and request for the Loan servicing notes in NOE 2 at all, let alone within the RFI Response Deadlines. 4 5 113. To date, Defendants have never sent an objection to the information requested 6 in NOE 1, NOE 2, and NOE 3 or any other written reason why Defendants could not 7 8 comply with the requests for information in NOE 1, NOE 2, and NOE 3. 114. Defendants therefore failed to comply with the requirements of 12 C.F.R. § 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 1024.36(d)(1). 11 12 115. Defendants’ actions in completely ignoring two of the three requests for 13 information and completely failing to provide a life of loan history and servicing notes 14 15 16 without cause, excuse or objection constitutes a willful violation of 12 C.F.R. § 1024.36(d). 17 116. Defendants’ actions also constitute a pattern and practice of ignoring and 18 19 failing to comply with their RESPA obligations in conscious disregard for Plaintiff’s 20 rights. 21 22 23 117. As a result of Defendant’s actions, Defendant is liable to Plaintiff for actual damages, statutory damages, costs, and attorneys’ fees. 24 25 26 27 28 -23- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 25 of 35 1 2 COUNTS 4 THROUGH 6: VIOLATIONS OF 12 C.F.R. § 1024.35(e) (Failure to properly respond to notices of error issued pursuant to 12 C.F.R. § 1024.35) 3 4 5 118. Plaintiff restates and incorporates herein all of the statements and allegations contained in the preceding paragraphs in their entirety, as if fully rewritten. 6 7 8 9 119. 12 C.F.R. § 1024.35(a) provides, in relevant part, that “[a] servicer shall comply with the requirements of this section for any written notice from the borrower that asserts an error and that includes the name of the borrower, information that enables the 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 servicer to identify the borrower's mortgage loan account, and the error the borrower 12 believes has occurred.” 13 14 15 16 17 18 19 20 21 22 23 24 25 120. 12 C.F.R. § 1024.35(e)(1)(i) provides that a servicer must respond to a notice of error by either: (A) Correcting the error or errors identified by the borrower and providing the borrower with a written notification of the correction, the effective date of the correction, and contact information, including a telephone number, for further assistance; or (B) Conducting a reasonable investigation and providing the borrower with a written notification that includes a statement that the servicer has determined that no error occurred, a statement of the reason or reasons for this determination, a statement of the borrower's right to request documents relied upon by the servicer in reaching its determination, information regarding how the borrower can request such documents, and contact information, including a telephone number, for further assistance. 26 27 121. Further, 12 C.F.R. § 1024.35(e)(3)(i) provides, in relevant part: 28 -24- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 26 of 35 A servicer must comply with the requirements of paragraph (e)(1) of this section: (A) Not later than seven days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the notice of error for errors asserted under paragraph (b)(6) of this section. (B) Prior to the date of a foreclosure sale or within 30 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the notice of error, whichever is earlier, for errors asserted under paragraphs (b)(9) and (10) of this section. (C) For all other asserted errors, not later than 30 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the applicable notice of error. 1 2 3 4 5 6 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 122. Plaintiff sent three separate notices of error (NOE 1, NOE 2 and NOE 3) to 12 13 Defendants on or about May 18, 2019, June 24, 2019, and July 19, 2019 to the Designated 14 Address. 15 16 17 18 123. Defendants received NOE 1, NOE 2 and NOE 3. 124. NOE 1, NOE 2 and NOE 3 each constituted a notice of error as such term is defined in 12 C.F.R. § 1024.35(a). 19 20 125. To date, Defendants have failed to respond to NOE 1 and NOE 3, failed to 21 correct the errors set forth in NOE 1 and NOE 3, failed to object to NOE 1 and NOE 3, 22 23 24 25 and failed to provide any justification, cause or excuse why Defendants could not correct the errors set forth in NOE 1 and NOE 3. 126. To date, Defendants have failed to respond to NOE 2 in any substantive or 26 27 meaningful way, simply stating that Defendants did not understand the errors and 28 -25- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 27 of 35 1 2 3 suggesting that Plaintiff contact another entity for information. Defendants failed to correct the errors set forth in NOE 2, failed to raise any substantive objections to NOE 2, and have continued to send notices and statements in the name of Plaintiff’s deceased 4 5 spouse, have continued to send notices and statements addressed to Haines & Krieger, 6 LLC instead of directly to the Plaintiff, and have failed to correct the account on the Loan 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 and apply all of Plaintiff’s payments to the Loan. 127. Further, at no point in time did Defendants provide a response to NOE 1, NOE 2 or NOE 3 explaining that no error(s) occurred with an explanation as to the reason(s) for 11 12 such determination(s) after performing a reasonable investigation into such pursuant to 12 13 C.F.R. § 1024.35(e)(1)(i)(B). 14 15 16 17 128. Defendants’ actions, in failing to provide a response at all to NOE 1 and NOE 3, and failing to provide a proper response to NOE 2 failed to meet the express, explicit requirements of either 12 C.F.R. § 1024.35(e)(1)(i)(A) or 12 C.F.R. § 1024.35(e)(1)(i)(B). 18 19 129. Defendants’ actions in completely ignoring NOE 1 and NOE 3 and in response 20 to NOE 2 completely fail to correct, address or investigate the errors, constitutes a willful 21 22 23 24 violation of 12 C.F.R. § 1024.35(e). 130. Defendants’ actions constitute a pattern and practice of ignoring and failing to comply with their RESPA obligations in conscious disregard for Plaintiff’s rights. 25 26 27 131. As a result of Defendant’s actions, Defendant is liable to Plaintiff for actual damages, statutory damages, costs, and attorneys’ fees. 28 -26- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 28 of 35 COUNT 7: VIOLATIONS OF 15 U.S.C. § 1692 (The Fair Debt Collection Practices Act) 1 2 3 4 132. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. 5 6 7 133. Defendants’ conduct violated 15 U.S.C. § 1692d in that Defendants engaged in behavior the natural consequence of which was to harass, oppress, or abuse Plaintiff 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 in connection with the collection of a debt. 134. Defendants’ conduct violated 15 U.S.C. § 1692e in that Defendants engaged in false, deceptive, or misleading behavior in connection with the collection of a debt. 12 13 14 135. Defendants’ conduct violated 15 U.S.C. § 1692e(2) in that Defendants misrepresented the amount owed by Plaintiff, and attempted to have Plaintiff pay more 15 16 17 18 than owed. 136. Defendants’ conduct violated 15 U.S.C. § 1692e(5) in that Defendants threatened to take action against Plaintiff which it could not legally take or did not 19 20 21 intend to take in collection of a debt. 137. Defendants’ conduct violated 15 U.S.C. § 1692e(10) in that Defendants 22 23 24 25 employed various false representations and deceptive means to collect a debt. 138. Defendants’ conduct violated 15 U.S.C. § 1692f in that Defendants used unfair and unconscionable means to collect a debt and attempted to humiliate and belittle 26 27 Plaintiff. 28 -27- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 29 of 35 1 2 3 139. The foregoing acts and omissions of Defendants constitute numerous and multiple violations of the FDCPA, including every one of the above-cited provisions. 140. Plaintiff is entitled to damages as a result of Defendants’ violations. 4 5 6 141. Plaintiff has been required to retain the undersigned as counsel to protect her legal rights to prosecute this cause of action, and is therefore entitled to an award or 7 8 reasonable attorneys’ fees plus costs incurred. 9 COUNT 8: VIOLATIONS OF NRS 598 ET SEQ 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 142. Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates them herein by reference. 13 14 15 16 143. Defendants violated the provisions of NRS 598 et seq cited above. As a result, Defendants are liable to Plaintiff for any damages Plaintiff suffered as a result of their conduct. 17 18 19 144. Defendants caused Plaintiff to suffer injuries as a result of its illegal conduct; specifically, Plaintiff has suffered, and continues to suffer, emotional and economic 20 21 22 23 distress as a result of Defendants’ deceptive trade practices. 145. Defendants’ actions were willful and unjustified, and resulted in injuries and mental anguish to Plaintiff. 24 25 26 146. Specifically, as a direct consequence of Defendants’ acts, practices, and conduct, Plaintiff suffered, and continues to suffer from, anxiety, severe emotional 27 28 distress, depression, fatigue, chest pains, rashes, frustration, feelings of helplessness, -28- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 30 of 35 1 2 3 weight loss, and worry, as well as out of pocket expenses in paying for medical treatment and medication to treat these symptoms. 147. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiff 4 5 has therefore suffered damages. 6 7 8 COUNT 9: VIOLATIONS OF NRS 41.1395 148. Plaintiff repeats and realleges the above paragraphs of this Complaint and 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 incorporates them herein by reference. 149. Plaintiff is an "older or vulnerable" person as defined by NRS 41.1395. 12 13 14 15 150. Defendants caused Plaintiff to suffer injuries as a result of its illegal conduct; specifically, Plaintiff suffered, and continues to suffer, emotional and economic distress as a result of Defendants’ deceptive trade practices, false collection communications and 16 17 18 false threats of foreclosure. 151. Defendants’ actions were willful and unjustified, and resulted in injuries and 19 20 21 22 mental anguish to Plaintiff. 152. Specifically, as a direct consequence of Defendants’ acts, practices, and conduct, Plaintiff suffered and continues to suffer from anxiety, severe emotional 23 24 distress, depression, fatigue, chest pains, rashes, frustration, feelings of helplessness, 25 weight loss, and worry, as well as out of pocket expenses in paying for medical 26 27 treatment and medication to treat these symptoms. 28 -29- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 31 of 35 1 2 153. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiff has therefore suffered damages. 3 4 5 COUNT 10 154. Plaintiff made timely payments pursuant to a Loan agreement, which 6 7 8 9 Defendants received. 155. Defendants breached the Loan by failing to apply the payments and abide by the Loan terms and properly apply payments to the Loan as agreed per the Loan terms. 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 156. Defendant has denied or failed to honor the Loan and instead, generated profit for itself by charging late and default fees in breach of the Loan, and thereby breached 13 14 15 16 the contract between Plaintiff and Defendants. 157. Plaintiff performed all obligations under the Loan; however Defendants breached the Loan agreement. 17 18 19 158. As a result of these breaches, Plaintiff sustained the following damages, to be proven at trial, including, but not limited to: 20 21 22 23 a. Increased amounts of the principal balance of the Loan; b. Increased amounts of mortgage payments over the course of the Loan; c. Late fees and the improper application of principal payments improperly used 24 25 26 to service those fees; 159. As a direct and proximate result of Defendants’ breach of the Loan, Plaintiff 27 28 did not receive the benefit of the bargain, suffered damages, and is faced with additional -30- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 32 of 35 1 harm (foreclosure) in an amount to be determined at trial. 2 COUNT 11 3 4 (Breach of Implied Covenant of Good Faith And Fair Dealing) 5 6 7 8 160. Every contract contains an implied covenant requiring that neither party act to disrupt the other’s ability to enjoy the benefit of the bargain. Furthermore, where a contract provides one of the Parties with discretion or sole authority to carry out 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 9 10 obligations under the agreement for the benefit of the other Party, the Party enjoying 11 such discretion and authority may not abuse it or exercise it in such a manner so as to 12 13 14 15 deprive the other Party of the benefits of the contract. 161. Defendants breached the implied covenant of good faith and fair dealing contained in the Loan. 16 17 18 162. Defendants further breached the implied covenant of good faith and fair dealing by, inter alia: 19 20 21 22 a. failing to make a good faith effort to fulfill contractual obligations, written and implied promises, and loan servicing functions and apply Plaintiff’s payments to the Loan; 23 24 b. failing to allocate sufficient resources and to train competent and 25 knowledgeable staff in order to ensure accurate processing of payments made 26 27 pursuant to a valid and existing loans agreement; and 28 -31- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 33 of 35 1 2 3 c. demanding late fees, interest and other delinquency related fees from Plaintiff in excess of the original monthly mortgage payment amount that Plaintiff could not reasonably pay; 4 5 d. threatening and placing Plaintiff in a threat of foreclosure despite Plaintiff’s 6 timely payments under the Loan and numerous efforts to bring these errors 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 to Defendants’ attention. 163. Defendants intentionally and continuously acted in a manner so as to frustrate Plaintiff’s ability to make continued and timely payments pursuant to the terms 11 12 13 of the Loan by which Defendants were obligated to abide. 164. By failing to honor the terms of the Loan, Defendants abused their authority 14 15 16 17 under the Loan, frustrated Plaintiff’s ability to obtain the benefits of the Loan, and thus breached the implied covenant of good faith and fair dealing. 165. As a direct result of Defendants’ breaches of the implied covenant of good 18 19 faith and fair dealing, Plaintiff suffered damages in an amount to be determined at trial. 20 PRAYER FOR RELIEF 21 22 23 24 25 WHEREFORE, Plaintiff prays judgment be entered against Defendants, awarding Plaintiff: • actual damages pursuant to 12 U.S.C. § 2605(f)(1); 26 27 28 -32- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 34 of 35 1 2 3 4 5 6 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 11 12 13 14 15 • statutory damages pursuant to 12 U.S.C. § 2605(f)(2) for each and every violation discussed above; • costs of litigation and reasonable attorney’s fees pursuant to 12 U.S.C. § 2605(f)(3); • actual damages pursuant to 15 U.S.C. § 1692k(a)(1); • statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A); • actual damages pursuant to NRS 598 et seq; • punitive damages pursuant to NRS 598.0977; • two (2) times any actual damages pursuant to NRS 41.1395; • punitive damages for bad faith; and • any other legal or equitable relief that the court deems appropriate. 16 TRIAL BY JURY 17 18 19 Pursuant to the Seventh Amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. 20 21 Dated: June 24, 2020 . /s/ Shawn W. Miller David H. Krieger, Esq. Nevada Bar No. 9086 Shawn W. Miller, Esq. Nevada Bar No. 7825 KRIEGER LAW GROUP, LLC 2850 W. Horizon Ridge Pkwy., Ste 200 Henderson, Nevada 89052 Attorney for Plaintiff ESTHER LOPEZ 22 23 24 25 26 27 28 -33- Case 2:20-cv-00229-JAD-DJA Document 17-1 Filed 07/02/20 Page 35 of 35 CERTIFICATE OF SERVICE 1 2 3 I hereby certify that I served the above FIRST AMENDED COMPLAINT (JURY TRIAL DEMANDED) via the Court’s Electronic Case Filing (ECF) system to the 4 5 6 7 8 9 2850 W. Horizon Ridge Pkwy, Suite 200 Henderson, Nevada 89052 KRIEGER LAW GROUP, LLC 10 following: gschnitzer@ksjattorneys.com Gary E. Schnitzer, Esq. KRAVITZ, SCHNITZER & JOHNSON, CHTD. 8985 South Eastern Avenue, Suite 200 Las Vegas, Nevada 89123 All other Parties to be served via service of process. I declare under penalty of 11 12 perjury under the laws of the State of Nevada and the United States that the above is true 13 and correct. Executed on June 24, 2020. 14 15 /s/ Shawn Miller . An employee of Krieger Law Group, LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 -34-
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