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Complaint 2 Vacate Foreclosure

Complaint 2 Vacate Foreclosure

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Published by BlaqRubi
Complaint Template used in Massachusetts
Complaint Template used in Massachusetts

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Categories:Types, Research, Law
Published by: BlaqRubi on Aug 09, 2010
Copyright:Attribution Non-commercial


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VERIFIEDCOMPLAINT TO VACATE FINALJUDGMENT OF FORECLOSURE, FOR FRAUD, DAMAGES,INJUNCTIVE RELIEF, AND OTHER RELIEFPlaintiffs sue Defendants to vacate a Final Judgment of Foreclosure, for fraud, damages,injunctive relief, and other relief, and state:A.Parties and JurisdictionThis is an action for damages, injunctive relief, and other relief which is properly broughtwithin this Court as the real property the subject of this action is situated within RocklandCounty, Massachusets.Plaintiffs are and were at all times material hereto sui juris citizens and residents of theYOUR COUNTY OF RESIDENCE and over the age of eighteen (18).Defendant YOUR BANK, but is subject to the jurisdiction of this Court pursuant to theYOUR STATE long-arm statute, ___________ as it transacted business in this jurisdiction deliberately by lending money for a refinance of real property located in thisYOUR COUNTY and instituting a foreclosure proceeding in YOUR STATE as to real property.Defendant ADDITIONAL DEFENDANT , on information and belief, a corporationwhich is subject to the jurisdiction of this Court pursuant to ______________ by virtue of deliberately transacting business in this jurisdiction through the acquisition of real property located in YOUR STATE nd initiating eviction proceedings incident to such property in THIS JURISDICTION as well.All transactions and occurrences material hereto took place in ___________ County, _________________.A.Material Facts Common to All CountsPlaintiffs, who are not and have never been engaged in the business of extendingconsumer loans, originally closed on a fixed-rated mortgage loan with Defendant inYEAR in connection with the refinance of residential real property located at ADDRESSDefendant ’s pre-closing Truth-In-Lending Statement presented to Plaintiffs affirmativelyrepresented that the interest rate on the loan was 12.881%. At all times material,Defendant ESB knew that the loan was not an “interest only” loan.1
Defendant ESB’s pre-closing Truth-In-Lending Statement disclosed to Plaintiffs alsoaffirmatively represented that the monthly payments on the loan were to be reduced from$1,716.92 to $1,605.97 as of October 30, 2006; further reduced to $1,499.17 as of June30, 2008; further reduced to $1,397.45 as of February 28, 2010; and reduced again to$1,301.71 as of October 28, 2011, with a final payment of $1,272.71 due on September 28, 2033.Plaintiffs relied upon the affirmative disclosures and representations of Defendant ESB inagreeing to close on the mortgage loan.However, and despite repeated demand by Plaintiffs, Defendant ESB failed to providePlaintiffs with a copy of the fully executed closing documents for in excess of three (3)years following the closing. Defendant ESB also failed to provide the MortgageServicing Disclosure Statement to Plaintiffs either at closing or within the legally prescribed three business days of receiving the loan, having only provided the subjectMSDS some 4 and ½ years after closing.Despite Plaintiffs having made their mortgage payments, Defendant ESB failed to applyany portion of the payments toward principal and failed to reduce principal incontradiction to the affirmative representations of Defendant ESB in its pre-closingTruth-In-Lending Statement.In June of 2005, Defendant ESB charged Plaintiffs $983.50 for “legal fees” for an allegedforeclosure even though Plaintiffs were not in arrears or default of the mortgage.Plaintiffs contacted Paul Buckingham, an authorized representative of Defendant ESB, asto the wrongful attorneys’ fee charge and the failure of Defendant ESB to apply any portion of Plaintiffs’ mortgage payments to principal. Plaintiffs also forwarded writtencorrespondence to Defendant ESB’s counsel detailing the errors then known to Plaintiffs.Defendant ESB and its counsel failed to respond to the Plaintiffs as to the wrongfulcharge for attorneys’ fees, failure of Defendant ESB to apply any portion of Plaintiffs’ payments to principal, and other errors.Defendant ESB further wrongfully and unilaterally changed Plaintiffs’ interest rate to$13.99% on the loan without any authorization from or consent of Plaintiffs.Plaintiffs experienced financial difficulties in the latter part of 2006, and were one monthlate on the mortgage payment.Pursuant to the closing documents, Plaintiffs’ mortgage payments were due at the end of each month.2
When Plaintiffs sent their September 30, 2006 payment to Defendant ESB (which wasmore than what was owed), Defendant ESB returned same claiming that an additional$247.00 was owed, thus intentionally setting up Plaintiffs for being two months behind intheir mortgage instead of accepting the payment and billing Plaintiffs for the additional$247.00.The following day, Plaintiffs received papers from Defendant ESB indicating its intentionto foreclose.Defendant ESB thereafter agreed to a forbearance of the foreclosure.The forbearance agreement called for, among other things, a payment of $2,300.00 for the February, 2007 mortgage payment, which the Plaintiffs did make.Plaintiffs continued to make payments pursuant to the forbearance agreement includingan additional $247.00 which Defendant ESB claimed was owed from an alleged prior  balance.At all times material, Defendant ESB was aware, and agreed, to accept payment of themortgage payments which accrued during the forbearance period when Plaintiffs wereable to access certain funds from an annuity, which was anticipated to be in or about mid-April, 2007.Plaintiffs made Defendant ESB aware of the fact that the monies were coming from thesubject annuity and that the checks were only cut on certain days of the month but whichexact dates were unknown in advance to the Plaintiffs.Plaintiffs made the March, 2007 payment on April 2, 2007. Despite making such payment, Defendant ESB, through its attorney Potter, claimed not to have received thesubject payment and threatened to foreclose on April 18, 2007.Despite the fact that the forbearance amount to be paid was $11,529.61, Defendant ESB’sagent attorney Erik Potter, Esq. demanded a payment from Plaintiffs of $23,500.00.When Plaintiffs questioned attorney Potter as to the source of this increased amount(which was demanded by attorney Potter without explanation), attorney Potter reducedthe figure to $21,177,60, but without explanation or breakdown as to how this sum wascomputed.Despite Plaintiffs tendering to attorney Potter a cashier’s check for $21,177.60 payable toDefendant ESB (which attorney Potter accepted) and Plaintiffs making numerousattempts to contact attorney Potter for a breakdown of the demanded amount, attorneyPotter never provided any such breakdown.Plaintiffs continued to experience difficulties with Defendant ESB, and sought theservices of a credit counselor.3

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