Sue the Bank - Complaint - Heritage Pacific RESPA, FCCPA. 12 UCC Violation

8/3/2019 Sue the Bank - Complaint - Heritage Pacific RESPA, FCCPA. 12 UCC Violation

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IN THE COUNTY COURT OF THEEIGHTEENTH JUDICIAL CIRCUIT INAND FOR BREVARD COUNTY, FLCASE NO.: '']0 f2-~5'G/-Z-t;1L

MPlaintiff, - . . . . . . . , . .~ _ - . : i c ! I .-1"1 c: :=>c::J0 -- ; : : : : ; " - , , - l:;::Jr,

01rr1r.1 " " "::DO f"T1J:>::::t:.- co::::ooz ,CJ-n:::J:: ..D00r-r ('1"10-'::DCD f'--n O I C ;; :: t,-01--' :.t>. :-iLD &:' .~""'~..D

VS.

HERITAGE PACIFIC FINANCIAL, LLC,

Defendant.------------------------------~/

COMPLAINTCOMES NOW, the Plaintiff, M by and through the undersigned counsel and

sues the Defendant, HERITAGE PACIFIC FINANCIAL, LLC, and alleges:1. This is an action for damages of less than $2,499.99, exclusive of interest, costs andattorney's fees.2. At all times material hereto, Defendant, HERITAGE PACIFIC FINANCIAL, LLC(hereafter Heritage Pacific) was a foreign limited liability with its principal place of businessin Plano, Texas. As of March 2011, Heritage Pacific applied to conduct business in Stateof Florida. Upon information and belief Heritage Pacific conducts business in Florida andhas employees or agents in Florida.3. The Plaintiff is a resident of Brevard County, Florida and owns a home in Brevard Countywhich is his primary residence.4. Heritage Pacific is the alleged owner of a promissory note secured by a second mortgageupon M s primary residence.5. Heritage Pacific acquired the subject loan after default on the note by M6. Heritage Pacific services the subject loan.7. Upon information and belief Heritage Pacific falls within the Securities and ExchangeCommission's (SEC) definition of a loan servicer.


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8. Heritage Pacific for purposes of the Fair Debt Collection Practices Act (hereafter FDCPA) isa debt collector.9. On or about February 7, 2011, the Plaintiff, through his undersigned counsel sent

correspondence to the Defendant via fax and U.S. Mail that requested validation of the debtpursuant to the Fair Debt Collection Practices Act (hereafter FDCP A). The letter was alsosent as a Qualified Written Request (QWR) pursuant to the Real Estate Settlement PracticesAct (RESP A). A copy of the subject letter and fax confirmation is attached hereto as"Exhibit A."

COUNT I - VIOLATION OF RESPAPlaintiffrealleges paragraphs One toNine as set forth above.10. RESP A establishes the requirements for how a mortgage loan servicer or lender must

conduct its post-closing servicing of the loan.11. Twelve 12 U.S.C. 2605(e) details the duties and statutory obligations of a loan servicer

or lender in receiving and responding to borrower written inquiries.12. Under RESP A if a servicer receives a qualified written request (QWR) the servicer must

acknowledge receipt ofthe QWR within twenty (20) days.13. A QWR is "a written correspondence, other than notice on a payment coupon or other

payment medium supplied by the servicer, that (i) includes, or otherwise enables theservicer to identify, the name and account of the borrower; and (ii) includes a statementof the reasons for the belief of the borrower, to the extent applicable, that the account isin error or provides sufficient detail to the servicer regarding other information sought bythe borrower.

14. The Subject correspondence was a QWR under RESPA because it(a) Identified the subject borrower(b) Identified the subject loan(c) Identified the subject property(d) Included a statement of the reasons the borrower believed the account to be in

error, (i.e., payments not being credited and collection by entity other thanoriginal lender or servicer).

15. Prior to July 22,2010, Pursuant to 12 U.S.C. 2605(e)(1)(A) a loan servicer SHALLprovide a written response acknowledging receipt of the correspondence within 20 days.The Dodd-Frank Financial Reform Bill amended RESPA to require acknowledgement ofa QWR within 5 days. See http://www.nclc.orgldodd-franklnclc-rpts-ccu-jul-aug-2010-web.pdf
http://www.nclc.orgldodd-franklnclc-rpts-ccu-jul-aug-2010-/http://www.nclc.orgldodd-franklnclc-rpts-ccu-jul-aug-2010-/


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16. The Defendant failed to acknowledge receipt of the Qualified Written Request (QWR)within twenty days or in the alternative for QWR served sent after July 22,2010 withinfive (5) days.

17. Prior to July 22,2010, Pursuant to 12 U.S.C. 2605(e)(2) not later than sixty days afterreceipt of the QWR and servicer shall:

(C) after conducting an investigation, provide the borrower with awritten explanation or clarification that includes--(i) information requested by the borrower or an explanation of why theinformation requested is unavailable or cannot be obtained by the servicer;and(ii) the name and telephone number of an individual employed by, or theoffice or department of, the servicer who can provide assistance to theborrowerThe Dodd Frank amendment subsequently reduced this time fromanswering the QWR to 30 days.

18. Heritage Pacific never acknowledged receipt of the Qualified Written Request nor didHeritage provide any of the documents requested in the QWR.

19. Prior to July 22,2010, Pursuant to 12 U.S.C. 2605(f), Whoever fails to comply with anyprovision ofRESPA shall be liable to the borrower for any amount equal to the sum of:(a) any actual damages to the borrower and (b) any additional damages that the court mayallow, in the case of a pattern or practice of noncompliance with the requirements of thissection in the amount not to exceed $1,000.00.

The Dodd Frank Amendment increased the amount of statutory damages on RESP Aviolation occurring after July 22,2010 from $1,000 to $2,000.00.

20. The Plaintiff was damaged by the Defendant's failure to comply with RESP A.

COUNT II - VIOLATION OF FLORIDA CONSUMER COLLECTION PRACTICESACT (FCCPA)

Plaintiff realleges paragraphs One to Nine as set forth above.21. Plaintiff's financial obligation to pay the mortgage on his home is a consumer debt as

defined by F.S. 559.55(1).22. The Plaintiff is a "consumer" and "debtor" as defined by 559.55(2)


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23. Heritage Pacific is a "Debt Collector" as defined by 559.55(6) or in the alternative is an"Out-of-state debt collector" as defined by 559.55(8)

24. By letters dated February 7,2011, Plaintiffs undersigned counsel put Defendant,Heritage Pacific on notice that Plaintiffwas represented by counsel with respect to themortgage on his primary residence.

25. Florida Statute 559.72 sets forth in pertinent part:Prohibited Practices:--In collecting consumer debts, no person shall:(18) Communicate with a debtor if the person knows that the debtor is represented

by an attorney with respect to such debt and has knowledge of, or can readilyascertain, such attorney's name and address, unless the debtor's attorney fails torespond within a reasonable period of time to a communication from theperson, unless the debtor's attorney consents to a direct communication with thedebtor, or unless the debtor initiates the communication;

26. On or about January 17, 2011, Heritage Pacific sent a Notice of Assignment, Sale orTransfer of Servicing Rights to Defendant's home. A copy is attached hereto as "ExhibitB" to the complaint.

27. On or about February 7,2011, Plaintiffs undersigned counsel put Defendant, HeritagePacific, on notice that Plaintiff was represented by counsel with respect to the mortgageon his primary residence. A copy of the letter and fax confirmation is previouslyreferenced in this complaint and is attached hereto as "Exhibit A."

28. On or about January 13,2012, Heritage Pacific made direct written communication withPlaintiff by sending Demand For Payment of Outstanding Debt, in violation of559.72(18). A copy of the letter is attached hereto as "Exhibit C" to the complaint.

29. The above-referenced letter stated on its face "This is from a debt collector and is anattempt to collect a debt."

30. Heritage Pacific violated the FCCP A, because it or its agent left the notice AFTERDefendant was on notice that Plaintiff had retained counsel.

31. Pursuant to Florida Statute 559.72 Plaintiff is entitled to his actual damages, togetherwith statutory damages of up to $1,000.00 for the violation.


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WHEREFORE, the Plaintiff, ~ requests this Court to order:~---

Judgment for damages together with interest, costs and attorney's fees pursuant to FloridaStatutes, 559.72 and any and all further relief as this Court deems just and proper.

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a copy of the foregoing has been furnished to the Defendant

herein through service of process.

RICHA SHU R, ESQUIREFla. Bar No.: 045713540 North Harbor City BlvdMelbourne, Florida 32935Telephone: 321-622-5040Fax Number: 321-259-3255Attorney for Plaintiff


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THE LAW OFFICESOFSHUSTER & SABEN, LLC.540 NORTHHARBOR CITY BLVD.MELBOURNE, FLORIDA32935

PHONE (321) 622-5040 FAX (321) 259-3255

February 7,2011

VIA MAIL&FAX(972)996-5136Heritage PacificFinancial2200KAve., Suite 200Plano, TX 75074

Re:Case No.:Homeowner:Property Address:Account No:

Deutsche Bank v.M~OS-2010'-CA-OIIL------~~------- ~

' - - - : : - : = - = - = - - = - = = - Satellite Beach, FL 3293.400237t__ ~---

To Whom ItMay Concern:Please be advised that our law firm represents M regarding yattempts to collect a debt allegedly owed to the above-referenced financial institution.you may know, Deutsche Bank has already filed suit against our client to foreclose ofirst mortgage, and this law firm is defending the subject lawsuit.Pursuant to the Fair Debt Collection Practices Act and on behalf of our client, we herdispute the validity of the debt and demand validation of same.Please also let this letter serve as a qualified written request pursuant to RESPA and reamendments to TILA. Our client believes that his payments have not been propecredited toward the balance due and that the interest charged exceeds rate contractedin the MortgageAs such please furnish our office with the following:(1) The identity of the current owner of the Note and Mortgage.(2) The identity of all prior owners of the Note and Mortgage.(3) The date the current owner of the Note and Mortgage acquired the NoteMortgage. .(4) If the Note and Mortgage is owned by a trust please identify both the trustee of

subject trust and the trust itself.(5) Identify the current and all past servicers of the Mortgage.(6) Provide a complete payment history.


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(7) Provide documentation of when the current owner of the Note acquired the Nthe entity from which the Note was acquired, and the amount of considerapaid forthe loan.

(8) Specifythe interest rate utilized foreach installment due under the Mortgage.(9) Pleasestatewhether our clientwas evaluated for loanmodification under HAM(10) Please provide copies of any HAMP application received and all corresponde

and log notes concerning the application forHAMP.(11) Please identify the interest rate used for determining the amount of any HA

trial payment.(12) Ifour clientwas placed in a Trial HAMP state the reasonwhy the trial HAMP

not made permanent.(13) If the trial HAMP was not made permanent based on "missing documentati

please identify what documents were missing and state the date the servnotified the borrower and specifically advised what additional documents wneeded.

All future contact relative to this debt must take place solely through this office. Plecease and desist all communications with our clients.For your reference, please also find enclosed written authorization to disclosurerequested information.Thank yoUr! yo J onsideration of thismatter._ :

Enclosure


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AUTHORIZATION AND RELEASEKNOW ALL MEN BY THESE PRESENTS that I~ l \i L___ __

,do hereby authorize Richard Shuster, Esquire and ShusterL _ & ~ " .~S-a'-be-,-,LLC~ to coatacr and negotiate and' with any company, bank ormortgage lender on my behalf in reference to my real property located at:

Satellite Beach, FL 32937L O A N #4 0 0 2 3 7 5 L _ _ 1 _ _

This Authorization and Release shall confirm that I have hired RichardShuster, Esq. as my attorney. I authorize and request any and allinformation concerning any mortgage or other debt on theabove-mentioned property to be released to Richard gl\1~. I also authorizeRichard Shuster to request and receive a Qtralified Written Requestpursuaat to RESP.A ..

This authorization and release shall be effective immediately as ofthis


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************************ FAX TX REPORT ************************

TRANSMISSION OK

JOB NO.DESTINATION ADDRESSPSWD/SUBADORESSDESTINATION IOST. TIMEUSAGE TPGS.RESULT

088719729965136

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THE LAW OFflCES OFSHUSTER 8 :: SABEN~ LL.C 540 NORTHHARBOR CITYBLVD.MELBOURNE, FLORIDA 32935

PHONE (321) 622-5040 FAX (321) 259-3255

February 7, 2011VIA MAIL &FAX (972) 996-5136Heritage Pacific Financial2200 K Ave.;.SMi te 200Plano, TX 75074

Re: Deutsche Bank v.JCase No.: 05-2010-CA-OllOIHomeowner: M iProperty Address:L Satellite Beach,FLAccount No: 40023L_- 3293IL_ _To Whom ItMay Concern:Please be advised that our law finn represents M j regarding yourattempts to collect a debt allegedly owed to the above-referenced f i l1.ariciaI institution. Asyou may know, Deutsche Bank has already filed suit against our client to foreclose on afirst mortgage, and this law firm is defending the subject lawsuit.Ij

- I!I

I

Pursuant to the Fair Debt Collection Practices Act and on behalf of our client, we herebydispute the validity of the debt and demand validation of same.Please also let this letter serve as a qualified written request pursuant to RESPA and recentamendments to TILA. Our client believes that his payments have not been properlycredited toward the balance due and that the interest charged exceeds rate contracted forin the Mortgage -As such please furnish our office with the following:


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~HER.nAGf,JP.~~JI .( .


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I DATE I r~!2012:=:====::;:::;I AC CQ UN,T ( I I HPO~IBALANCE I I $93,446.98PROPERTY . l .ADDRESS' SATELLITE BEACH, FL 32937. . :. L_____

;.tPACifiC ~~~FINANCIALMail Processing Center - HeritagePFPO Box 41309, Dept. 231Nashvil le, TN 37204-1309

0000001L_1 ' 1 1 ' 1 1 1 1 1 , , 1 1 1 1 1 1 1 1 1 " , , 1 , , 1 , 1 1 , 1 1 1 1 1 1 " 1 ,~PO~~74

179 ELLWOOD AVESATELLITE BCH, FL 32937-3128

Please remit payment to:Heritage Pacific Financial2200 K Ave, Ste. 200Plano, TX 75074

Check or money order accepted by mail. For credit or debit card payments, call toll free 888-233-9

DEMAND FOR PAYMENT OF OUTSTANDING DEBTProperty: SATELLITE BEACH, FL 32937Outstanding Principal Balance: $93,446.98

OearMAs you know, Heritage Pacific Financial currently owns and holds the promissory note that you signed and executed for thsecond-mortgage on the above-referenced property. The promissory note that Herilagepacific Fihancial owns and holdevidences your agreement and promise to re-pay the money that was loaned to you. You received benefit from the loanhowever, you have failed to make the payments that you promised and contracted to make. Your refusal to fulfill youcontractual obligations causes injury and damage to Heritage Pacific Financial. Your account is unpaid, outstanding,and overdue.He.ritage Pacific Financial hereby DEMANDS payment of the above-referenced unpaid principal balance, whichand has been overdue.

OPTlON-LUMP SUM PAYMENT:

One (1) Payment of 100% of the OutstandingPrincipal Balance noted above being: $93,446.98

To discuss other settlement options, contact us toll free at 888-233-9115. You mayetso contact us via fax a972-212-6862, or you may email us:[email protected] is from a debt collector and is an attempt to collect a debt. Any information obtained shall be used for that purpose.Sincerely,HERITAGE PACIFIC FINANCIALCustomer Relations

SEE REVERSE FOR IMPORTANT NOTICESHeritage Pacific Financial 2200 K Ave, Ste. 200, Plano, TX 75074Phone: 888-233-9115 Fax: 972-212-6862 E-Mail: [email protected]
mailto:us:[email protected]:[email protected]:[email protected]:us:[email protected].

Documents

Sue the Bank - Complaint - Heritage Pacific RESPA, FCCPA. 12 UCC Violation