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Case: 1:10-cv-02208-PAG Doc #: 1 Filed: 09/30/10 1 of 40.

PageID #: 1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

EMPIRE TITLE SERVICES, INC. *
9 S 9th Street
Richmond, Indiana 47374-5503 *

Individually and on behalf of a class *
of others similarly situated,
*
Plaintiffs
*
vs. Civil Action No.: _______________
*
FIFTH THIRD MORTGAGE COMPANY,
Serve on: *
CSC-Lawyers Incorporating Service, Resident
Agent *
50 W. Broad Street, Suite 1800
Columbus, Ohio 43215 *

VISTA SETTLEMENT SERVICES, LLC *
Serve on:
CSC-Lawyers Incorporating Service, Resident *
Agent
50 W. Broad Street, Suite 1800 *
Columbus, Ohio 43215
*
FIFTH THIRD FINANCIAL CORPORATION
Serve on: *
Paul L. Reynolds, Resident Agent
38 Fountain Square Plaza *
Cincinnati, Ohio 45263
*
and
*
FIFTH THIRD BANK
Serve on: *
Paul L. Reynolds, Resident Agent
38 Fountain Square Plaza *
Cincinnati, Ohio 45263
*
Defendants.
*
Case: 1:10-cv-02208-PAG Doc #: 1 Filed: 09/30/10 2 of 40. PageID #: 2

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

1. Plaintiff, Empire Title Services, Inc. (“Empire Title” or the “Named Plaintiff”),

on its own behalf and on behalf of the Class defined herein, sues Defendants Fifth Third

Mortgage Company (“Fifth Third Mortgage”), Vista Settlement Services, LLC (“Vista”) and

Fifth Third Financial Corporation (“Fifth Third Financial”).

I. INTRODUCTION

2. This is a class action by settlement agents seeking relief from the practices of

Fifth Third Financial Corporation and its wholly owned subsidiaries Fifth Third Mortgage, Fifth

Third Bank and Vista in violating and conspiring to violate federal law through the creation and

use of Vista in a scheme in which: (a) Vista, either directly or indirectly, paid and/or split illegal

kickback and referral fees with Fifth Third Mortgage’s loan officers (who were employed by

Fifth Third Bank) – often 10% of Vista’s revenue generated by the issuance of the title

insurance; and (b) Fifth Third Mortgage required the use of Vista and gave and received

kickbacks, referral fees, and things of value in exchange for the referral of settlement services by

only utilizing co-operating settlement agents who agreed to direct and refer all of the title

insurance premium generating business to Vista, and by forbidding the use of settlement agents

who had not agreed to direct and refer all of the title insurance premium generating business to

Vista. Moreover, in carrying out the scheme, Vista has substantially enriched the other

Defendants, because all or substantially all of the services related to Vista’s charges were

performed by the non-Vista settlement agents, and the fees collected by Vista are almost entirely

profit.

3. As set forth below, Fifth Third Financial Corporation created an “Affiliated

Business Arrangement” (“ABA”) – Vista – solely to facilitate the collection of unlawful referral

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fees and kickbacks in violation of the Real Estate Settlement Procedures Act of 1974, as

amended, 12 U.S.C. §§ 2601, et seq. (“RESPA”). Such an arrangement also violates the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962, 1964 (“RICO”).

4. Fifth Third Mortgage, a wholly-owned subsidiary of Fifth Third Financial, and a

sister company of Fifth Third Bank, is in a position to refer its borrowers to providers of

settlement services for their loans, including closing or settlement agents.

5. As part of the Defendants’ corporate objective to maximize their profits and to

make extra money from these mortgage loans without doing any additional work or providing

additional services, Fifth Third Financial, Fifth Third Mortgage and Fifth Third Bank established

Vista as a way to obtain referral fees and kickbacks in the transactions of borrowers doing

business with Fifth Third Mortgage, by forcing the referral of the most lucrative part of the

settlement agent’s business – title insurance sales – to themselves, in the guise of Vista.

6. Defendants together have engaged in a practice of intimidating and pressuring

settlement agents to agree in advance to refer business to Vista in exchange for doing business

with Fifth Third Mortgage, even though doing so violates industry standards and the federal Real

Estate Settlement Procedures Act (“RESPA”). If settlement agents fail to join in on the

Defendants’ illegal referral scheme, the settlement agent is removed from the “list” of agents

approved to do business with Fifth Third Mortgage, is “blacklisted,” and loses the lucrative

settlements of Fifth Third Mortgage loans which they would otherwise obtain. Once Defendants

have blacklisted a settlement agent, they are no longer requested or accepted as a settlement

agent for Fifth Third Mortgage loans. In addition, mortgage brokers who also hire settlement

agents will not hire settlement agents to close loans funded by Fifth Third Mortgage, as the

settlement agent is not approved to close those loans. In sum, being blacklisted for the failure to

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engage in the Defendants’ illegal referral scheme is a significant economic blow, especially in

the cool climate of the current real estate market.

7. The Defendants kick back profits from Vista to Fifth Third Mortgage’s loan

officers, to encourage their assistance in selling the Defendants’ fraudulent scheme to settlement

agents, and to ensure that they cut off settlement agents who do not cooperate. Fifth Third

Mortgage’s loan officers – who are employed by Fifth Third Bank and in the best position to

choose the settlement agents that would provide the title examination, title insurance, escrow and

settlement services in connection with the closing of the mortgage loans – are required to refer

title examination, title insurance, escrow and settlement services business only to those co-

operating settlement agents that have agreed, in advance, to refer all title insurance premium

generating business – which is quite valuable and lucrative - over to Vista. Vista then issues the

title commitment, the title insurance policy and any Fifth Third-required title insurance

endorsements for the Fifth Third transaction. In return for their referral of business to the co-

operating settlement agents, the Fifth Third loan officers are paid 10% or more of Vista’s

revenue generated by the issuance of title commitments, title insurance policies and any Fifth

Third required title insurance endorsements.

8. In return for the Fifth Third Mortgage’s loan officer’s valuable referral to

cooperating settlement agents, those settlement agents are required by Fifth Third Mortgage

and/or Fifth Third Bank to, in turn, refer title insurance business to Vista in each Fifth Third

Mortgage transaction, providing a significant financial benefit to Fifth Third Financial, and Fifth

Third Mortgage.

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9. As a result, referring business (i.e., a thing of value) to Vista was imposed by

Defendants as a requirement for settlement or closing agents to receive referrals of business from

Defendants and close transactions involving Fifth Third Mortgage, in violation of RESPA.

10. In return for the assistance of Fifth Third Mortgage’s loan officers in ensuring that

settlement business went only to settlement agents who had agreed in advance to refer title

insurance business to Vista, the loan officers were paid kickbacks and referral fees in connection

with the title insurance fees paid to Vista resulting from the loan officers’ referrals to cooperating

settlement agents. This money, which was paid to the loan officers, was directly or indirectly

paid by Vista, and was channeled through the payroll department at Fifth Third Bank in an

attempt to disguise the fact that the payments were from Vista.

11. The Defendants even managed to cover up the fact that they were requiring

Vista’s use in Fifth Third Mortgage transactions. Since the Defendants used Fifth Third

Mortgage’s co-operating settlement agents to make automatic referrals of portions of the title

insurance premium generating business to Vista in Fifth Third Mortgage transactions, borrowers

had little or no interaction with Vista. The fees or other consideration attributed to Vista on the

borrower’s HUD-1 Settlement Statement were received or paid without disclosing to the

borrower the consideration constituted a kickback in exchange for the referral of business to co-

operating settlement agents using Vista by Fifth Third Financial, Fifth Third Mortgage and/or

Fifth Third Mortgage’s loan officers.

12. Settlement agents who did not agree to engage in the illegal and fraudulent

referral scheme, such as the Named Plaintiff, were blacklisted and not used to close Fifth Third

Mortgage transactions. This caused the Named Plaintiff and other members of the Class

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substantial damages including but not limited to the loss of income from transactions they would

have closed for Fifth Third Mortgage but for their refusal to enter into the Referral Scheme.

13. Defendants’ conduct violates, among other things, the federal Racketeer

Influenced Corrupt Organizations Act (“RICO”), and has caused and is causing damage to law-

abiding settlement agents and threatening legitimate competition in the real estate market. This

lawsuit is necessary to put an end to Defendants’ illegal conduct and to compensate settlement

agents subjected to and damaged by Defendants’ fraudulent scheme.

14. Settlement agents like the Named Plaintiff who refused to engage in the

Defendants’ Referral Scheme are numerous, and consist, upon information and belief, of

hundreds of entities. Accordingly, Plaintiffs are a Class of settlement agents who were approved

settlement agents for Fifth Third Mortgage transactions but stopped receiving referrals of title

business after Fifth Third Mortgage required the use of Vista Settlement Services in each of its

mortgage loan closings.

II. PARTIES

a. The Named Plaintiff

6. Empire Title Services, Inc. (“Empire Title”) is an Indiana corporation with its

principal place of business in Richmond, Indiana. Empire Title is in the business of conducting

closings of mortgage transactions. Empire Title closed transactions funded by Fifth Third Bank,

until Empire Title was informed by a Fifth Third Mortgage loan officer that it would be required

to utilize Vista for the issuance of title insurance policies in order to continue receiving referrals

of Fifth Third Mortgage business. When Empire Title failed to take part in the referral scheme,

it ceased receiving referrals of Fifth Third Mortgage business.

b. The Co-Conspirators

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7. Co-Conspirator Fifth Third Mortgage is an Ohio corporation. It is engaged in the

business of consumer lending in Ohio and elsewhere. Over the relevant time frame of this

Complaint, Fifth Third Mortgage was a licensed mortgage lender in the State of Ohio.

8. Over the relevant time frame of this Complaint, Fifth Third Mortgage funded

thousands of mortgage loans where the borrowers were charged fees by the Vista ABA.

9. Co-conspirator Fifth Third Bank is an Ohio corporation. Fifth Third Bank

employs the loan officers who assist in extending mortgages through Fifth Third Mortgage, and

who are accordingly referred to herein as “Fifth Third Mortgage’s loan officers.”

10. Co-Conspirator Fifth Third Financial is an Ohio corporation. Fifth Third Financial

wholly owns Vista, Fifth Third Bank, and Fifth Third Mortgage. In connection with the

kickback and referral scheme challenged by this Complaint, Fifth Third Financial paid kickbacks

from the revenue of Vista, its wholly owned subsidiary, to Fifth Third Mortgage and Fifth Third

Mortgage’s loan officers. In addition, Fifth Third Financial took and was paid kickbacks and

referral fees from Vista’s revenue for its part in the scheme.

c. Vista

11. Vista is an “affiliated business arrangement” of Fifth Third Mortgage, Fifth Third

Bank, and Fifth Third Financial.

12. Vista is wholly owned by Fifth Third Financial, and is a sister company of Fifth

Third Mortgage and Fifth Third Bank.

13. Vista is licensed to act as a title insurance agency and to conduct other settlement

services involving mortgage loans in Ohio and also other states throughout the United States.

14. Upon information and belief, Vista purports to perform work in thousands of

mortgage loan transactions each year, but in actuality exists solely as a means to provide

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kickbacks and unearned fees to the Co-Conspirator Defendants, and to Fifth Third Mortgage’s

loan officers (employees of Fifth Third Bank) who refer business to co-operating settlement

agents. Vista was established by Fifth Third Financial to capture all title premium generating

business in Fifth Third Mortgage transactions, and to facilitate the payment of illegal referral

fees and kickbacks to Fifth Third Financial, its subsidiaries Fifth Third Bank and Fifth Third

Mortgage, and to Fifth Third Mortgage’s individual loan officers.

III. JURISDICTION AND VENUE

15. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 (Federal Question).

16. Venue is proper in this District because, under 28 U.S.C. § 1391(b), a substantial

part of the events giving rise to claims herein occurred within this District and the Co-

Conspirators all systematically and continually transact business in this District.

IV. FACTS APPLICABLE TO ALL COUNTS

17. At all times relevant to this Complaint, Fifth Third Mortgage has been a mortgage

lender and a provider of “settlement services” as that term is used in RESPA, 12 U.S.C. § 2602.

18. Fifth Third Mortgage, as a mortgage lender, is in a position to refer settlement

business to settlement agents and others. Upon information and belief, Fifth Third Financial and

Fifth Third Bank incited and agreed with Fifth Third Mortgage to use this position to allow Fifth

Third Financial, Fifth Third Bank and Fifth Third Mortgage (hereinafter occasionally referred to

collectively as “Fifth Third”) to reap unearned fees from mortgage transactions by using the

referral power of Fifth Third Mortgage’s loan officers to force settlement agents to, in turn, refer

title insurance business to Vista.

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19. As part of the typical mortgage loan transaction, the lender (here, Fifth Third

Mortgage), refers title insurance, escrow and other settlement work to a single settlement agent

or settlement services provider that, inter alia: (a) performs the title search and a title

examination; (b) issues a title insurance commitment; (c) escrows funds in connection with the

loan; (d) closes the loan; and (e) issues the title insurance policy and any title insurance

endorsements required by the lender. For performing these services, the settlement agent or

settlement services provider is paid one or more fees, as disclosed on the HUD-1 Settlement

Statement.

20. The settlement agent or settlement services provider is almost always selected

and/or designated by the lender or mortgage broker that originates the mortgage loan.

21. As part of their conspiracy, Fifth Third Financial, Fifth Third Bank and Fifth

Third Mortgage agreed to create a new settlement services company that would facilitate referral

fees and kickbacks to Fifth Third in connection with the title examination, title insurance, escrow

and settlement work. The new settlement services company would exist solely to permit Fifth

Third to make additional money from the loan transaction beyond their origination fees.

22. Towards this end, in or about September of 2006, Fifth Third Financial formed

the ABA Vista, which became a sister company of co-conspirators Fifth Third Bank and Fifth

Third Mortgage.

23. Vista was created to appear on the HUD-1 Settlement Statement in connection

with the loan settlement process, as the issuer of the title insurance commitment, the title

insurance policy and any title insurance endorsements required by Fifth Third.

b. The Co-Conspirators Systematically Run Mortgage Referral Business Through,
and Require the Use of, Vista, Without Disclosing Its Affiliation With The Co-
Conspirators as Required by Law.

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24. In order to insure that Vista received the fees for issuing the title insurance

commitment, the title insurance policy and any Fifth Third-required title insurance endorsements

in connection with all or substantially all of Fifth Third’s mortgage loans, Fifth Third required

any settlement agent or other settlement services company that was designated to perform the

title examination, title insurance, escrow and settlement services for a Fifth Third loan to refer

the issuance of the title insurance commitment, title insurance policy and any Fifth Third

required title insurance endorsements - all title insurance premium-generating aspects of the

transaction - to Vista. That is, Fifth Third conditioned its referral of settlement service business

to settlement agents upon their agreement to refer all “title insurance” work to Vista.

25. Fifth Third communicated this policy to its co-operating settlement agents who

performed both the title examinations and handled the escrow and settlement services. In

particular, upon information and belief, Fifth Third advised its co-operating settlement agents

that whenever a mortgage loan was referred to them by a Fifth Third Mortgage loan officer for

title and escrow services, all title insurance premium-generating business, i.e. issuance of the title

commitment, the title insurance policy and the Fifth Third-required title insurance endorsements,

had to be referred to Vista.

26. Moreover, upon information and belief, co-operating settlement agents were

instructed that, as a condition of doing business with Fifth Third, any fees attributable to the

issuance of the title commitment, the title insurance policy and any Fifth Third required title

insurance endorsements (i.e., the title insurance premium generating business or “title revenue”)

would be collected by and paid to Vista. The co-operating settlement agents’ charges for their

title examinations and escrow fees were limited to a fixed flat fee by Fifth Third both as to a

maximum amount, irrespective of the services being provided.

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27. Upon information and belief, because Vista received all the revenue from the

issuance of the title commitment, the title insurance policy and any Fifth Third-required title

insurance endorsements - revenue that normally would be collected by and paid to the co-

operating settlement agent - the co-operating settlement agents uniformly and consistently

inflated their fees, and/or added bogus and additional charges to make up for the lost revenue and

to insure that the maximum charges allowed by Fifth Third were maintained.

28. Settlement agents like the Named Plaintiff who refused to refer the issuance of the

title commitment, the title insurance policy and any Fifth Third-required title insurance

endorsements to Vista – i.e., require the borrower to use the services of Vista – were barred from

receiving any title insurance, escrow or settlement business from Fifth Third. Such non-co-

operating settlement agents were blacklisted and prohibited from participating in any future Fifth

Third Mortgage transactions when Fifth Third Mortgage would choose the settlement agent.

29. The fees obtained by the Defendants through Vista from Named Plaintiffs and the

Class, resulting from Fifth Third’s requirement that its co-operating settlement agents refer

business to Vista, were then kicked back in whole or in part to Fifth Third.

c. Vista Splits its Title Commitment and Insurance Premium Fees with Fifth Third
Mortgage’s Loan Officers

30. As part of the scheme to require borrowers to use Vista, and further secure the

steady stream of kickbacks and referral fees paid by Vista to Fifth Third, Defendants instituted a

comprehensive “referral fee program” with Fifth Third Mortgage’s loan officers.

31. Under the Defendants’ referral fee program – known as the “Fast Cash

Campaign” – Defendants designed and implemented a kickback program that paid Fifth Third

Mortgage’s loan officers 10% or more of Vista’s title revenue for every transaction referred or

directed through a cooperating settlement or closing agent to Vista.

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32. Under the “Fast Cash Campaign” Vista directly or indirectly split the title

insurance “revenue”– which Defendants designated as “incentive payments” – with any and all

Fifth Third Mortgage loan officers that referred business to cooperating settlement agents.

33. The split fees and referral payments were made on a monthly basis to Fifth Third

Mortgage loan officers, and were paid either directly or indirectly by Vista.

34. Upon information and belief, none of the Fifth Third Mortgage loan officers who

received a percentage or split of Vista’s title revenue were employed by Vista.

35. The Fifth Third Mortgage loan officers who received a percentage or split of

Vista’s title revenue, performed no additional services for their portion of the split fees; nor were

any bona fide goods or services supplied for such payments.

36. Rather, the “Fast Cash Campaign,” and/or other Vista kickback programs, were

designed solely to reward Fifth Third Mortgage’s loan officers for having referred and or

directed business to Vista, through referring settlement business to settlement agents who had

agreed in advance to refer title insurance business to Vista.

d. Defendants Did Not Disclose their Affiliation and Affirmatively Concealed both
their Relationship with Each Other, and the Fees Paid to or Split with the Fifth
Third Loan Officers

37. An “affiliated business arrangement” is defined in section 3(7) of RESPA, 12

U.S.C. §§ 2601, et seq. (12 U.S.C. § 2602(7)) as:

[A]n arrangement in which (A) a person who is in a position to refer business
incident to or as part of a real estate settlement service involving a federally
related mortgage loan, or an associate of such person, has either an affiliate
relationship with or a direct or beneficial ownership interest of more than 1
percent in a provider of settlement services; and (B) either of such persons
directly or indirectly refers such business to that provider or affirmatively
influences the selection of that provider.

38. The HUD regulations state further that:

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Affiliate relationship means the relationship among business entities where one
entity has effective control over the other by virtue of a partnership or other
agreement, or is under common control with the other by a third entity, or where
an entity is a corporation related to another corporation as parent to subsidiary by
an identity of stock ownership. 24 CFR § 3500.14(c)(2)(emphasis in original).

39. An affiliate relationship – such as the one between and among Vista, Fifth Third

Financial, Fifth Third Mortgage, and Fifth Third Bank – must be disclosed to consumers on a

separate sheet of paper, distinct from any other documents in the loan file. The consumer must

sign this disclosure.

40. As described above, however, Defendants Fifth Third Financial, Fifth Third Bank

and Fifth Third Mortgage organized Vista with an intent to affirmatively conceal its affiliation.

41. Neither Fifth Third nor Vista provided its borrowers with the requisite disclosure

identifying the affiliation between Fifth Third and Vista, as required by Federal law.

42. Nor did any borrower receive a disclosure, or sign one, or any other form of

notice, either that Vista was splitting the title revenue with the loan officer, or that the Fifth Third

Mortgage loan officer was going to receive unearned and illegal referral fees and kickbacks in

connection with the mortgage loan transaction.

43. Nor did any borrower receive a disclosure, or any other form of notice, that

Vista’s title revenue was, in reality, being paid to Fifth Third Financial, Fifth Third Mortgage,

Fifth Third Mortgage’s loan officers, and/or Fifth Third Bank as an illegal referral fee and

kickback in connection with the mortgage loan transaction.

44. The unearned or excessive fees allocable or payable to Vista are reflected on false

and misleading HUD-1 Settlement Statements which were in all relevant respects uniform across

all of its customers.

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45. The Vista fees paid to Fifth Third Financial, Fifth Third Bank, Fifth Third

Mortgage and Fifth Third Mortgage’s loan officers were unearned referral fees and kickbacks

and were paid at the expense and to the detriment of borrowers, in violation of federal law.

46. In addition, the referral of settlement business to co-operating settlement agents

was a “thing of value” (among other things, an opportunity to participate in a money-making

program) paid by Fifth Third Mortgage pursuant to an understanding between Fifth Third

Mortgage and the settlement agents that the settlement agents must, in turn, refer part of the

settlement business in the Fifth Third Mortgage transaction to Vista, also in violation of federal

law. The referral of business to Vista by those co-operating settlement agents, which was

accepted by Vista, was also a thing of value (among other things, an opportunity to participate in

a money-making program) paid by the co-operating settlement agents in return for the referral of

settlement services by Fifth Third Mortgage to the co-operating settlement agents.

47. Moreover, uniformly and consistently, neither Vista nor Fifth Third offered

borrowers a choice as to whether Vista would be utilized in their transaction. Indeed, settlement

agents doing business with Fifth Third Mortgage were required to refer business to Vista or lose

Fifth Third Mortgage’s business. Borrowers were thus required to use Vista, even though

RESPA prohibits such “required use.”

48. Defendants’ referral scheme entailed wholesale violations of RESPA as well as

numerous omissions of material facts, including but not limited to failing to inform customers of

the fees split and kicked back between the Defendants, the illegality of the referral scheme and

the illegality of the collection of fees imposed by Vista in violation of RESPA. As a result of

Defendants’ fraudulent omissions, customers went through with Fifth Third Mortgage

settlements using settlement agents who co-operated with Defendants and agreed to refer

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settlement business to Vista – and the Named Plaintiff and other settlement agents who refused

to take part in Defendants’ fraudulent scheme lost their business.

V. FACTS APPLICABLE TO NAMED PLAINTIFF

49. Named Plaintiff, Empire Title, opened for business in June, 2003. Empire Title

oversees the closing of mortgage loans, and issues title insurance in those mortgage loan

transactions. Empire Title is an approved underwriter for title insurers such as General Title and

Trust and Conestoga Title Insurance Company.

50. Empire Title marketed to Fifth Third Mortgage, and in 2007-2008 Empire Title

oversaw the closing of approximately 10-15 Fifth Third Mortgage transactions per month.

51. During this time, Empire Title was contacted by the Fifth Third loan officer who

worked with Empire Title, who said that he was getting a hard time from his managers and

supervisors at Fifth Third because Empire Title did not have its escrow account with Fifth Third

Bank. Empire Title subsequently moved its escrow and other bank accounts to Fifth Third Bank.

52. A month or so later, the same Fifth Third loan officer contacted Empire Title and

said that he was under pressure – again from his managers and supervisors at Fifth Third -

because Empire Title was not sending title insurance business to Vista. Rather, Empire Title was

issuing the title insurance policy itself and retaining the premium commissions generated by the

sale of the title insurance for its own benefit. The loan officer stated that until and unless Empire

Title agreed to refer its title insurance business to Vista, Fifth Third Mortgage would refer its

business to another settlement agent – Freedom Title. The Fifth Third Mortgage representative

also told Empire Title that it could get its business from Fifth Third back once it began referring

business to Vista. Empire Title declined or was not in a position to agree to refer business to

Vista.

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53. Because Empire Title declined to refer business to Vista, Fifth Third Mortgage

ceased sending it mortgage loans for settlement.

54. As a result of Fifth Third Mortgage’s refusal to send business to Empire Title

because Empire Title declined to engage in Defendants’ referral scheme, Empire Title has

suffered substantial losses and damages in the form of lost income which would have been

obtained in settling Fifth Third Mortgage transactions, including revenue from closing fees and

title insurance commissions. The damages suffered by Empire Title as a result of the

Defendants’ Referral Scheme and Empire Title’s refusal to be a part of it are readily calculable,

and total thousands of dollars.

VI. CLASS ACTION ALLEGATIONS

55. This action is properly maintainable as a class action pursuant to Fed. R. Civ. P.

23. The class of victims consists of:

All settlement agents, from September 30, 2006 to the present, who were
approved settlement agents for Fifth Third Mortgage transactions but stopped
receiving referrals of title business after Fifth Third Mortgage required the use of
Vista Settlement Services in each of its mortgage loan closings.

Excluded from the Class are those individuals who now or have ever been executives of

Defendants. The complaint covers the period from the time that Vista opened for business until

the resolution of this case.

56. The Class, as defined above, is identifiable. The Named Plaintiff is a member of

the Plaintiff Class.

57. The Class consists, on Plaintiffs’ information and belief, of hundreds of entities,

and is thus so numerous that joinder of all members is clearly impracticable.

58. The questions of law and fact in this case are uniquely common to all members of

the Plaintiff Class.

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59. There are questions of law and fact which are not only common to the Class, but

which predominate over any questions affecting only individual Class members. The

predominating questions include, but are not limited to:

(a) Whether Fifth Third Mortgage, Fifth Third Financial, and/or Fifth

Third Mortgage conspired to force settlement agents, in exchange for referrals of

Fifth Third Mortgage business to those settlement agents, to refer business to

Vista;

(b) Whether the Defendants are juridically linked through common

ownership and control;

(c) Whether the Defendants committed numerous acts of fraud in

furtherance of their scheme;

(d) Whether 18 U.S.C. §§ 1962, et seq. (“RICO”) applies to the

activities of the Defendants;

(e) Whether the Defendants were involved in racketeering activity;

(f) Whether there was a scheme to defraud in violation of the mail or

wire fraud statutes which constituted racketeering activity in furtherance of the

scheme;

(g) Whether the racketeering acts were conducted as part of a pattern;

(h) Whether the racketeering enterprise affected interstate commerce;

(i) Whether the Defendants’ activities in creating Vista and forcing

referrals of business to it, in order to boost profits and to create a flow of illegal

kickbacks and fee splits, constituted a pattern of racketeering activity;

(j) Whether Defendants utilized Vista as a racketeering enterprise;

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(k) Whether the commission by Co-Conspirators of numerous acts of

mail and wire fraud was in furtherance of their scheme;

(l) Whether Defendants sent or directed the sending of knowingly

false documents through the United States Postal Services and wires;

(m) Whether Defendants used the wires to take loan applications over

the telephone lines;

(n) Whether Defendants directly or indirectly invested in, maintained an

interest in, or participated in the conduct or management of an enterprise; and,

(o) Whether Defendants engaged in numerous fraudulent omissions to conceal

their scheme and to give the appearance that Vista was a legitimate enterprise.

60. The claims and defenses of the representative parties are typical of the claims or

defenses of the respective Class members.

61. The representative parties will fairly and adequately protect the interests of the

Class. The interests of the Named Plaintiff and of all other members of the Plaintiff Class are

identical and the Named Plaintiff is cognizant of its duties and responsibilities to the entire Class.

Plaintiffs’ lawyers are experienced in the conduct of class action litigation.

62. This action should proceed as a Plaintiff Class action under Fed. R. Civ. P.

23(b)(1). That is, the prosecution of separate actions by the individual members of the Plaintiff

Class would create a risk of inconsistent or varying adjudications with respect to individual

members of the Plaintiff Class which would establish incompatible standards of conduct for

them.

63. This action should also proceed as a Plaintiff Class action under Fed. R. Civ. P.

23(b)(2) because each of the Defendants have acted or refused to act on grounds generally

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applicable to the class, thereby making appropriate final injunctive relief and corresponding

declaratory relief with respect to the Class as a whole.

64. This action should also proceed as a Plaintiff Class action under Fed. R. Civ. P.

23(b)(3). As to that Rule, it is submitted that the questions of law or fact common to the

members of the Class predominate over any questions affecting only individual members, and

that a class action is superior to other available methods for the fair and efficient adjudication of

the controversy.

65. No member of the Class has a substantial interest in individually controlling the

prosecution of a separate action, but if he does, he may exclude himself from this Class upon the

receipt of notice under Fed. R. Civ. P. 23(c).

66. The difficulties likely to be encountered in the management of a class action in

this litigation are relatively insignificant, especially when weighed against the virtual

impossibility of affording adequate relief to the members of the Class through numerous separate

actions.

VII. CIVIL RICO SUMMARY

67. In connection with the activities giving rise to this action, the Defendants acted

with malice, intent and knowledge, and with a wanton disregard for the rights of Plaintiff and

other Class members.

68. At all relevant times herein, the “enterprise” described herein, Vista, which is an

entity registered with the State of Ohio and designed and formed by Defendants Fifth Third

Mortgage and Fifth Third Financial, operated separately and distinct from each other individual

Defendant. Vista was engaged in interstate commerce in that, inter alia, the settlement

transactions and title services which are the subject of the scheme to defraud set forth in this

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Complaint, involved property in Indiana, Ohio, and other states and the extension of mortgages,

and title insurance from out-of-state insurers, funded by wire or check that originated outside of

the states in which the subject properties were located, and which were serviced out-of-state.

69. Through the agreements between and among Fifth Third Financial, Fifth Third

Mortgage, Fifth Third Mortgage’s individual loan officers, and the settlement agents who agreed

to take part in the Defendants’ referral scheme and refer business to Vista, the Defendants and

these co-operating settlement agents formed an association-in-fact with each other which also

constitutes an “enterprise” engaged in illegal activities affecting interstate commerce pursuant to

18 U.S.C. §§ 1961(4) and 1962(a).

70. At all relevant times herein, in connection with the activities giving rise to this

action, the Defendants and co-operating settlement agents conspired with each other to engage in

the various activities set forth herein, agreed to participate in the operation of the conspiracy and

scheme to defraud its customers, to deny business to Plaintiff and other Class members, and

aided and abetted one another in these activities, all as proscribed by federal law.

71. As set forth herein, during the relevant times, and in furtherance of and for the

purpose of executing the scheme and artifice to defraud, the Defendants and co-operating

settlement agents on numerous occasions used and caused to be used, mail depositories of the

United States Postal Service by both placing and causing to be placed mailable matters in said

depositories and by removing and causing to be removed mailable matter from said depositories.

These mailings included, but were not limited to, the HUD-1 Settlement Statements in each

transaction, correspondence, other loan closing documents, and original copies of owner’s and

lender’s title insurance policies that fraudulently misrepresented the relationship between the Co-

Conspirators and concealed the true nature of services provided by Vista.

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72. Specifically, each Fifth Third Mortgage customer received numerous packages in

the mail from Defendants and co-operating settlement agents prior to and after their loan

closings. These mailings included title insurance documents, HUD-1 Settlement Statements,

Good Faith Estimates, and other documents falsely characterizing the referral fee paid to Vista as

a fee for services, and/or naming Vista as a bona fide entity performing services in the

transaction and charging for those services. These mailings attempted to and were successful in

deceptively hiding the fact that the charges were not for services, but were disguised referral

fees, and that Vista was created to launder money back into the hands of Fifth Third Mortgage,

Fifth Third Financial, Fifth Third Bank, and Fifth Third Mortgage’s individual loan officers.

Fifth Third Mortgage’s customers did not and could not reasonably learn from these mailings the

fact that Vista was not operating according to law. Fifth Third Mortgage’s customers did not

protest the fees charged by Vista due to Defendants’ fraudulent omissions, in reliance on the

legitimacy of the transaction and the documents mailed to them.

73. For example, on or about March 24, 2009, Jill Powers and Patrick Powers (“the

Powers”), who are named class representatives in the related class action case Powers v. Fifth

Third Mortgage Company, et al., Case No. 1:09-cv-02059-LW, settled on the refinance of their

home at 8860 Belton Drive, North Ridgeville, Ohio 44039.

74. Fifth Third Mortgage was the Powers’ lender in the March 24, 2009 transaction,

and the Powers worked with a Fifth Third Mortgage loan officer in obtaining the mortgage loan

for their refinancing. The Fifth Third Mortgage loan officer referred the closing and title business

in the transaction to Centennial Title.

75. As part of the escrow and settlement services, the title insurance agent, as the

settlement agent, at the direction of Fifth Third Mortgage, delivered to the Powers a packet of

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loan documents, including a false and misleading HUD-1 Settlement Statement and other loan

documents and disclosures.

76. According to the Powers’ HUD-1 Settlement Statement, the Powers paid $50 to

Vista for a “title insurance binder.” In addition, the Powers paid $366.40 to Vista for title

insurance from First American Title Insurance, $75.00 to Vista for an “EPA endorsement,” and

another $50.00 to Vista for a “Survey Endorsement.”

77. Upon information and belief, pursuant to the Defendants’ regular practices,

following the settlement, the fees charged in the name of Vista were split between Fifth Third

Financial, Fifth Third Mortgage, and Fifth Third Mortgage’s individual loan officers. Upon

information and belief, Fifth Third Mortgage’s loan officer was paid 10% or more of the title

revenue attributable to Vista on the HUD-1 Settlement Statement, as a reward for having steered

the title examination, title insurance, escrow and settlement business to the co-operating title

insurance agency and to Vista.

78. Moreover, the fees paid to Vista, as described above, in the usual transaction that

was free of affiliated business arrangements like Vista, would be paid to the settlement agent.

79. The HUD-1 Settlement Statement, and other documents provided to the Powers in

connection with the loan closing, also concealed from the Powers the fact that, as a kickback,

referral and/or split-fee, Fifth Third Mortgage, Fifth Third Financial, and/or Fifth Third

Mortgage’s individual loan officer(s) would be paid an additional fee, beyond that as portrayed

by the HUD-1.

80. Similar documents were sent through the U.S. mails in each Fifth Third Mortgage

transaction involving Vista in an attempt to conceal the true nature of the enterprise. The Co-

Conspirators and co-operating settlement agents repeated this pattern – that is, the fraudulent use

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of the U.S. mails and causing others to use the U.S. mails in furtherance of the scheme – in

hundreds or thousands of similar real estate transactions. Fifth Third Mortgage’s customers

each relied on the deceptive documents and correspondence, and title insurance policy. Upon

information and belief, numerous other mailings were undertaken in furtherance of Defendants’

fraudulent scheme, the precise dates and contents of which are hidden and cannot be known

without access to Defendants’ books and records. Each such use of the U.S. mails in connection

with the scheme and artifice to defraud constituted the offense of mail fraud as proscribed and

prohibited by 18 U.S.C. § 1341.

81. Moreover, in each transaction in which Vista is involved, co-operating settlement

agents are required by Defendants to send via facsimile or electronic means to persons

purportedly working for Vista the information necessary to generate the title binder, and the title

binder is then sent back to the closing agent via facsimile.

82. As set forth herein, during the relevant times, and in furtherance of and for the

purpose of executing the scheme and artifice to defraud, the Defendants on hundreds or

thousands of occasions also used and caused to be used, telephone and other wire transmissions

including, but not limited to emailing and faxing loan documents such as the HUD-1 Settlement

Statements, title insurance documents, and Good Faith Estimates to the Plaintiffs and the Class

as well as to co-operating settlement agents and amongst each other, with the intent and in

furtherance of the scheme to defraud. Upon information and belief, numerous other uses of the

wires were undertaken in furtherance of Defendants’ fraudulent scheme, the precise dates and

contents of which are hidden and cannot be known without access to Defendants’ books and

records.

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83. Each such use of the telephone and wire transmission in connection with the

scheme and artifice to defraud constituted the offense of wire fraud as proscribed and prohibited

by 18 U.S.C. § 1343.

84. Defendants’ enterprise, Vista, as well as the association-in-fact enterprise

including the co-operating settlement agents, has operated continuously from at least 2008 to the

present and affected hundreds or thousands of borrowers’ transactions through the use of form

documents that intentionally contained false information. The use of the U.S. mails and wires by

the enterprise and the association-in-fact enterprise interstate on hundreds or thousands of

occasions constitutes a pattern of racketeering activity.

85. The HUD-1 Settlement Statements, disclosures, and the other documents and

communications as described in more detail above (which contained fraudulent and false

statements made to Fifth Third Mortgage’s customers and which concealed material facts) were

intended to and did assure the customers that their mortgage transactions were proceeding

legitimately and legally, and influenced the customers to accept the process, as well as the

overcharges built into the Co-Conspirators’ fees, without question. Fifth Third Mortgage’s

customers did not learn from these documents and communications that Vista was operating in

violation of RESPA and RICO.

86. If Fifth Third Mortgage’s customers had then known of Defendants’ fraudulent

omissions and suspected that Vista was merely being used to facilitate and launder the payment

of illegal referral fees and kickbacks, at their expense, they would have refused to conduct

business with Vista, would not have paid the fees required and imposed by Defendants in the

name of Vista, and would have sought to secure their rights under the law at that time. Fifth

Third Mortgage’s customers paid the fees, however, because of the Defendants’ fraudulent

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omissions and the deceptive documents and wires provided to them and others by Co-

Conspirators in connection with their transactions. The Defendants’ fraudulent omissions, and

Fifth Third Mortgage’s customers’ reasonable reliance on the mortgage documents, disclosures,

correspondence, communications and the apparent legitimacy of Vista enabled the scheme to

continue, and thus was one proximate cause of the damages suffered by Plaintiff and the Class.

87. Plaintiff and Class members’ injuries to their property were caused by

Defendants’ continuous operation of the enterprise and association-in-fact through the

reinvestment of illicit funds from the enterprise and association-in-fact back into the enterprise

and association-in-fact in that neither the enterprise nor the association-in-fact would have been

able to continue operating had it not been for the enterprise’s and association-in-fact’s prior

racketeering activities, and the continuous operation of the enterprise and association-in-fact put

Plaintiff and the Class at a greater and greater competitive disadvantage over time.

88. Plaintiff and Class members’ injuries to their property were also caused by the

pattern of racketeering activity of the enterprise and association-in-fact in that Plaintiffs and

Class members lost business, profits, and revenue to Vista and to settlement agents who agreed

to take part in the Defendants’ fraudulent scheme, and the profits of Vista were then split

between the enterprise’s members according to a prior written contract and/or other agreement.

VIII. CAUSES OF ACTION

COUNT I –- VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(a)
(Co-Conspirator Defendants)

89. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

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90. Plaintiff and each class member is a “person” within the meaning of 18 U.S.C. §§

1961(3) and 1964(c).

91. Each Defendant and Co-Conspirator is a “person” within the meaning of 18

U.S.C. §§ 1961(3) and 1962(a).

92. Vista constitutes an “enterprise” within the meaning of 18 U.S.C. §§ 1961(4) and

1962(a), which enterprise was engaged in, and the activities of which affect, interstate

commerce.

93. Each of the Co-Conspirators was associated with the “enterprise” and did use or

invest income derived from a pattern of unlawful activity under 18 U.S.C. §§ 1961(1) and (5) to

operate, maintain control of, and maintain an interest in the enterprise.

94. These unlawful activities included multiple instances of mail and wire fraud,

including but not limited to use of the mails and wires in furtherance of the Defendants’

fraudulent omissions and their illegal referral scheme, the issuance of false and deceptive HUD-1

Settlement Statements and other settlement documents, faxed and emailed loan documents and

bank wired monies in violation of 18 U.S.C. §§ 1341 and 1343, which occurred uniformly and

consistently during the existence of the “enterprise” between 2008 and continuing to the present.

95. The purpose of the enterprise created by the Defendants was to establish an entity

through which Fifth Third Mortgage and Fifth Third Financial could conceal their referral

scheme, and conceal and launder illegal referral payments and kickbacks to themselves and the

Fifth Third Mortgage’s individual loan officers to reward Fifth Third Mortgage, Fifth Third

Financial, and Fifth Third Mortgage’s individual loan officers, at the expense of the borrower,

for having referred title and escrow business to closing agents willing to utilize Vista.

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96. Through the use of this illegal and fraudulent scheme, and through its efforts to

operate and maintain the enterprise described herein and to maintain the conspiracy to facilitate

the payment of illegal referral fees and kickbacks to Fifth Third Mortgage, Fifth Third Financial

and Fifth Third Mortgage’s individual loan officers, the Co-Conspirators have been able to

launder illegal payments to Fifth Third Mortgage, Fifth Third Financial and Fifth Third

Mortgage’s individual loan officers through Vista, in violation of both Federal and State Law.

97. The Co-Conspirators retained these illegally gained funds and reinvested and used

those funds in their operations in violation of 18 U.S.C. § 1962(a).

98. Plaintiff and all Class members have been injured in their property by reason of

the operation of the enterprise in this unlawful manner.

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

D. Award Plaintiff reasonable costs and attorneys’ fees; and

E. Award Plaintiff such other and further relief as the Court deems just and proper.

COUNT II - VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(a)
Association-in-Fact
(All Defendants)

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99. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

100. Plaintiff and each class member is a “person” within the meaning of 18 U.S.C. §§

1961(3) and 1964(c).

101. Each Defendant and Co-Conspirator is a “person” within the meaning of 18

U.S.C. §§ 1961(3) and 1962(a).

102. Through the agreements between Fifth Third Financial, Fifth Third Mortgage,

Fifth Third Mortgage’s individual loan officers, and the settlement agents who agreed to take

part in the Defendants’ referral scheme and refer business to Vista, the Defendants and these co-

operating settlement agents formed an association-in-fact with each other which constitutes an

“enterprise” engaged in illegal activities affecting interstate commerce pursuant to 18 U.S.C. §§

1961(4) and 1962(a).

103. Each of the Co-Conspirators was associated with the “enterprise” and did use or

invest income derived from a pattern of unlawful activity under 18 U.S.C. §§ 1961(1) and (5) to

operate, maintain control of, and maintain an interest in the enterprise.

104. These unlawful activities included multiple instances of mail and wire fraud,

including but not limited to the issuance of false and deceptive HUD-1 Settlement Statements

and other settlement documents, faxed and emailed loan documents and bank wired monies in

violation of 18 U.S.C. §§ 1341 and 1343, which occurred uniformly and consistently during the

existence of the “enterprise” between 2008 and continuing to the present.

105. The purpose of the Defendants’ and the co-operating settlement agents’

association-in-fact was to charge borrowers exorbitantly high fees in respect of title services, and

to put at a competitive disadvantage and prevent the use of settlement agents who had not agreed

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to refer business to Vista in Fifth Third Mortgage transactions and to give effect to the scheme

described above. This association-in-fact enabled Defendants to fund a kickback or referral fee

scheme, and to defraud the public by requiring settlement agents to refer business to Vista, and

thus requiring the customer to pay bogus and illegal fees.

106. The association-in-fact had the common or shared purpose to charge customers

phony and illegal fees, to defraud Plaintiff and the Class and other members of the public, to put

Plaintiff and the Class at a competitive disadvantage, and to give effect to the “kickback” and

“fee referral” scheme described above, and had a distinct division of labor. It continued as a

unit, with a core membership, over a substantial period of time and was an ongoing organization

established for an economic motive. The association-in-fact remained viable and active at the

time this action was filed.

107. Fifth Third Mortgage, Fifth Third Financial, Fifth Third Mortgage’s individual

loan officers, Vista, and co-operating settlement agents each played a substantial and distinct role

in the scheme.

108. In this association-in-fact, Fifth Third Mortgage made the initial contact with the

borrower. Fifth Third Mortgage falsely and intentionally misrepresented to Fifth Third

Mortgage’s customers that Vista provided and offered valuable services for Fifth Third Mortgage

borrowers.

109. Fifth Third Mortgage and Fifth Third Mortgage’s loan officers then referred the

title and closing work for the loan to a co-operating closing agent who had agreed to utilize

Vista, to place Vista on mortgage loan documents as an entity performing services in the

transaction and charging a fee. This fee to Vista was then paid to Fifth Third Mortgage, Fifth

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Third Financial and/or Fifth Third Mortgage’s individual loan officers as a referral fee or

kickback.

110. At all times, however, Fifth Third Mortgage, Fifth Third Bank, Fifth Third

Financial and the co-operating settlement agents knew that Vista performed virtually no work in

respect of the loan despite the fact that it received a substantial fee.

111. Fifth Third Mortgage, Fifth Third Financial and Fifth Third Mortgage’s individual

loan officers also actively participated in the scheme to defraud by accepting payment of the fee

passed-through Vista.

112. Fifth Third Financial and Fifth Third Mortgage also actively participated in the

scheme to defraud by negotiating the terms of its various agreement(s) with its Co-Conspirators.

The improper use of these agreements permitted Defendants to require settlement agents to refer

business to Vista, permitted Defendants to blacklist settlement agents who did not agree to refer

business to Vista and to prevent them from receiving Fifth Third Mortgage business, and

permitted Defendants to force borrowers to unwittingly pay earned and illegal fees in respect of

mortgage loan transactions.

113. Fifth Third Mortgage and Fifth Third Financial utilized this scheme to generate a

large volume of referrals of closing business to Vista. To further the scheme, the Co-

Conspirators issued and oversaw the issuance of false and deceptive disclosures and HUD-1

Settlement Statements which concealed material facts and which were intended to and did

mislead the public and their customers about the true nature of the scheme to defraud and the

true costs and fees resulting from the transaction.

114. Each Fifth Third Mortgage customer received a HUD-1 Settlement Statement and

various disclosures through the United States Postal Service and/or facsimile or electronic mail.

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115. The HUD-1 Settlement Statements and disclosures (which contained fraudulent

and false statements and which concealed material facts) were intended to and did assure the

customers that the title work attributed to Vista was proceeding legitimately and legally, and

influenced the customers to accept the process, as well as the phony charges, without question.

The customers received the impression from the HUD-1 Settlement Statement and disclosures

that the phony and bogus service fees attributed to Vista were legal and legitimate. The

customers did not learn from the HUD-1 Settlement Statement that the fees were illegal and in

violation of the law. If Fifth Third Mortgage’s customers had then suspected that Vista was a

bogus entity and merely being used to facilitate the payment of illegal referral fees and

kickbacks, at their expense, they would have refused to conduct business with Vista, and would

not have paid the fees. The customers’ reasonable reliance on the fraudulent documents enabled

the scheme to continue, and thus was one proximate cause of the damages suffered by Plaintiff

and the class.

116. Vista’s role in this scheme was to launder the funds paid by the borrowers for title

closing costs. Although the HUD-1 Settlement Statements each represented that Vista was paid

ostensibly valid fees for such services, the fees payable to Vista, as reflected on each HUD-1

Settlement Statement, were in fact (and unknown to the borrower) paid to Fifth Third Mortgage,

Fifth Third Financial, and Fifth Third Mortgage’s individual loan officers. Fifth Third

Mortgage’s customers relied upon the representations by the Co-Conspirators that Vista was an

entity performing true and valid services for the borrower and, further, that the fees payable to

Vista were legal and legitimate.

117. All of these activities of the association-in-fact form a pattern, continuous in

nature, which consists of numerous unlawful individual acts. The illegal activities of Defendants

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persisted over an extended period of time between 2008 and continuing to the present. Each

fraudulent HUD-1 Settlement Statement, as well as the other false and misleading documents,

were provided to Fifth Third Mortgage customers in furtherance of the conspiracy for which the

Defendants are liable. The reliance of the Fifth Third Mortgage customers on the material

omissions in the documents and the falsehoods contained in such documents was reasonable and

justified because such documents would and did cause persons of ordinary experience to be

convinced of the legality and legitimacy of Vista.

118. These activities of the Co-Conspirators entailed multiple instances of mail fraud

consisting of intentional mail fraud intended to induce, and inducing, Fifth Third Mortgage’s

customers to part with property and/or to surrender legal rights, and preventing Plaintiff and the

Class from obtaining those customers’ business, in violation of 18 U.S.C. § 1341.

119. These activities of the Co-Conspirators also entailed multiple instances of wire

fraud consisting of intentional wire fraud intended to induce, and inducing, Fifth Third

Mortgage’s customers to part with property and/or to surrender legal rights, and preventing

Plaintiff and the Class from obtaining those customers’ business, in violation of 18 U.S.C. §

1343.

120. Through the use of this illegal and fraudulent scheme, and through its efforts to

operate and maintain the enterprise described herein, to maintain the conspiracy and to facilitate

the payment of illegal referral fees and kickbacks to Fifth Third Mortgage, Fifth Third Financial

and Fifth Third Mortgage’s individual loan officers by laundering funds through Vista, the Co-

Conspirators have been able to retain money which is rightfully payable to Plaintiff and Class

members.

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121. The Co-Conspirators retained these illegally gained funds and reinvested and used

those funds in their operations in violation of 18 U.S.C. § 1962(a).

122. Plaintiff and all class members have been injured in their property by reason of

the operation of the enterprise in this unlawful manner.

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

D. Award Plaintiffs reasonable costs and attorneys’ fees; and

E. Award Plaintiffs such other and further relief as the Court deems just and proper.

COUNT III - VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(c)
(Co-Conspirator Defendants)

123. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

124. Plaintiff and each class member is a “person” within the meaning of 18 U.S.C. §§

1961(3) and 1964(c).

125. Defendants Fifth Third Mortgage, Fifth Third Financial and Vista are “persons”

within the meaning of 18 U.S.C. §§ 1961(3) and 1962 (c).

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126. Vista constitutes an “enterprise” within the meaning of 18 U.S.C. §§ 1961(4) and

1962(c), which enterprise was engaged in, and the activities of which affect, interstate

commerce.

127. Defendants were associated with the enterprise through their joint ownership in

the enterprise, and its fraudulent and inflated charges, and participated in its management and

operation by directing its affairs and assisting in the fraudulent Referral Scheme. The defendants

participated, directly and indirectly, in the conduct of the enterprise's affairs through a pattern of

unlawful activity under 18 U.S.C. § 1961(i)(b), 1961(5) and 1962(c), to wit:

(a) Multiple acts of mail fraud, in violation of 18 U.S.C. § 1341;

(b) Multiple instances of wire fraud in violation of 18 U.S.C. § 1343; and

(c) Multiple instances of interstate transport of money converted or

fraudulently obtained in violation of 18 U.S.C. § 2314.

128. Plaintiff and each Class member suffered injury to their property, within the

meaning of 18 U.S.C. § 1964(c), by reason of the violation of 18 U.S.C. § 1962(c).

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, amounts to compensate them for the injuries to their competitive

position, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

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D. Award Plaintiff reasonable costs and attorneys’ fees; and

E. Award Plaintiff such other and further relief as the Court deems just and proper.

COUNT IV - VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(c)
Association-in-Fact
(All Defendants)

129. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

130. Plaintiff and each class member is a “person” within the meaning of 18 U.S.C. §§

1961(3) and 1964(c).

131. The Co-Conspirators are “persons” within the meaning of 18 U.S.C. §§ 1961(3)

and 1962 (c).

132. The association-in-fact described in Count II above is an “enterprise” within the

meaning of 18 U.S.C. §§ 1961(4) and 1962(c), which enterprise was engaged in, and the

activities of which affect, interstate commerce.

133. Defendants are each associated with the enterprise and participated in its

management and operation by directing its affairs and by conducting business with each other

and assisting in the scheme to charge borrowers phony and illegal fees in connection with their

mortgage loan closing. The Defendants each participated, directly and indirectly, in the conduct

of the enterprise's affairs through a pattern of unlawful activity under 18 U.S.C. § 1961(i)(b),

1961(5) and 1962(c), to wit:

(a) Multiple acts of mail fraud, in violation of 18 U.S.C. § 1341;

(b) Multiple instances of wire fraud in violation of 18 U.S.C. § 1343; and

(c) Multiple instances of interstate transport of money converted or

fraudulently obtained in violation of 18 U.S.C. § 2314.

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134. Each Class member suffered injury to their property, within the meaning of 18

U.S.C. § 1964(c), by reason of the violation of 18 U.S.C. § 1962(c).

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

D. Award Plaintiffs reasonable costs and attorneys’ fees; and

E. Award Plaintiffs such other and further relief as the Court deems just and proper.

COUNT V - VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(d)
(Co-Conspirator Defendants)

135. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

136. Plaintiff and each member of the Class are “persons” within the meaning of 18

U.S.C. §§ 1961(3) and 1964(c).

137. The Co-Conspirators are “persons” within the meaning of 18 U.S.C. §§ 1961(3)

and 1962(d).

138. Vista constitutes an “enterprise” within the meaning of 18 U.S.C. §§ 1961(4) and

1962(a), which enterprise was engaged in, and the activities of which affect, interstate

commerce.

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139. The Defendants as Co-Conspirators were associated with the enterprise described

herein, and conspired within the meaning of 18 U.S.C. § 1962(d) to violate § 1962(a).

140. The Defendants as Co-Conspirators conspired to use or invest income derived

from a pattern of unlawful activity under 18 U.S.C. § 1961(1) to operate, maintain control of,

and maintain an interest in the enterprise and have done so through a pattern of unlawful activity

including under 18 U.S.C. § 1961(1), inter alia, multiple instances of mail fraud in violation of

18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343.

141. The named Plaintiff and each Class member has suffered injury to property within

the meaning of 18 U.S.C. § 1964(c) by reason of the commission of overt acts constituting illegal

activity in violation of 18 U.S.C. §§ 1961(1), 1962(d).

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

D. Award Plaintiff reasonable costs and attorneys’ fees; and

E. Award Plaintiff such other and further relief as the Court deems just and proper.

COUNT VI -- VIOLATION OF THE RACKETEER INFLUENCED CORRUPT
ORGANIZATIONS ACT - 18 U.S.C. § 1962(d)
Association-in-Fact
(All Defendants)

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142. Plaintiff hereby incorporates by reference each and every allegation contained in

the foregoing paragraphs as if set forth fully herein.

143. Plaintiff and each member of the Class are “persons” within the meaning of 18

U.S.C. §§ 1961(3) and 1964(c).

144. The Co-Conspirators are “persons” within the meaning of 18 U.S.C. §§ 1961(3)

and 1962(d).

145. The association-in-fact described in Count II above is an “enterprise” within the

meaning of 18 U.S.C. §§ 1961(4) and 1962(a), which enterprise was engaged in, and the

activities of which affect, interstate commerce.

146. The Defendants as Co-Conspirators are associated with the enterprise described

herein, and conspired within the meaning of 18 U.S.C. § 1962(d) to violate § 1962(a).

147. The Defendants as Co-Conspirators conspired to use or invest income derived

from a pattern of unlawful activity under 18 U.S.C. § 1961(1) to operate, maintain control of,

and maintain an interest in the enterprise and have done so through a pattern of unlawful activity

including under 18 U.S.C. § 1961(1), inter alia, multiple instances of mail fraud in violation of

18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343.

148. The named Plaintiff and each Class member has suffered injury to his property

within the meaning of 18 U.S.C. § 1964(c) by reason of the commission of overt acts

constituting illegal activity in violation of 18 U.S.C. §§ 1961(1), 1962(d).

WHEREFORE, Plaintiff prays that the Court:

A. Pursuant to 18 U.S.C. §1964(c), award Plaintiff and the Class members their

damages suffered by reason of the illegal acts set forth herein, including amounts they would

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have received as profits from Fifth Third Mortgage transactions they were not referred due to the

Defendants’ fraudulent scheme, plus treble damages;

B. Certify this case as a Plaintiff Class action pursuant to Rule 23(b)(1), (2) and/or

(3) of the Federal Rules of Civil Procedure;

C. Award pre-judgment interest;

D. Award Plaintiff reasonable costs and attorneys’ fees; and

E. Award Plaintiff such other and further relief as the Court deems just and proper.

Respectfully submitted,

Dated: September 30, 2010 /s/Richard S. Gordon/by David G. Oakley__
Richard S. Gordon
Benjamin H. Carney
QUINN, GORDON & WOLF, CHTD.
102 West Pennsylvania Ave., Suite 402
Baltimore, Maryland 21204
Tel. (410) 825-2300
Fax. (410) 825-0066

/s/ David G. Oakley
Edward G. Kramer (2224873)
David Oakley (0068362)
THE FAIR HOUSING LAW CLINIC
3214 Prospect Avenue, East
Cleveland, Ohio 44115-2600
Tel. (216) 431-5300
Fax (216) 431-6149

Cyril V. Smith
ZUCKERMAN SPAEDER LLP
100 E. Pratt St., Suite 2440
Baltimore, Maryland 21202
Tel. (410) 332-0444
Fax. (410) 659-0436

Attorneys for Plaintiff

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Request for Jury Trial

Plaintiff demands a trial by jury on all causes of action set forth herein.

/s/ David G. Oakley _________________
Richard S. Gordon
David G. Oakley

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