Case No.

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.. IN THE COU~T OF GOMMON PLEAS

CUYAHOGA COUNTY, OHIO

Margaret H. Peacock, on behJ~bf'h~~~I{) ):: C q

and all others similarly situated: ," ,-- - :t T

1370 Inglewood Drive ,). ,

Cleveland Heights, OH 44121 L .: .. . '- ~-,} ;

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Plaintiff,

vs.

Bayview Loan Servicing Serve Statutory Agent:

Ct Corporation System 1300 E. 9th Street Cleveland, Ohio 44114

and

Lourdes Llorens

Bayview Loan Servicing 4425 Ponce de Leon Blvd. 5th Floor Mail Room

Coral Gables, Florida 33146

and

Mr. Ponds

Bayview Loan Servicing 4425 Ponce de Leon Blvd, Coral Gables, Florida 33146

Defendants.

CV 05551305 Complaint

1111!1111111111111111111111111111111111!11111111I1

31893552

J .AJJ 0 5 2005

CLASS ACTION COMPLAINT AND JURY DEMAND

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Preliminary Statement

1. This is an action to redress various predatory lendinq.' and loan servicing

practices committed by Bayview and/or Lourdes Llorens and/or Mr. Ponds whereby

Bayview and/or Lourdes Llorens and/or Mr. Ponds in conjunction with various mortgage

originators pursue unsophisticated borrowers in exploitive home equity loans, charge

illegal and exploitive fees, refuse to credit payments, and then pursue foreclosure.

Jurisdiction And Venue

2. This case arises under the Ohio Consumer Sales Practices Act as set

forth in Ohio Revised Code, §1345.01 et seq. ("CSPA"), which prohibits all deceptive,

unfair, or unconscionable acts or practices in consumer transactions; The Fair Debt

Collection Practices Act, 15 U.S.C. §1692 et seq., ("FDCPA"); the Fair Credit Reporting Act ("FCRA"), and15 U.S.C. §1681, et seq.; §6 and §16 of the Real Estate Settlement Procedures Act of 1974 ("RESPA"), 12 U.S.C. §2605 and §2614 and Ohio common law.

3. Venue is proper in Cuyahoga County because this is a county in which

Bayview and/or Lourdes Llorens and/or Mr. Ponds conducted the activity that gave rise

to the claim for relief; this is a county in which the real estate which is the subject of this

1 See HUD-TREASURY NAT10:\AL PREDATORY LENDING TASK FORCE, J01NT REpORT: CURB1NG PREDATORY HOME MORTGAGE LENDING, (visited September 21, 2001) <http://www .hud .gov 11 ibrary lbookshc1 fl8/pressrellprOO-14 2 .html> .

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action is situated; this is the county in which the claim for relief arose; this is an action to

which Rule 4.3 Ohio R.Civ. Pro applies and this is the county where Plaintiff resides.

The Defendants

4. Defendant Bayview Loan Servicing (hereinafter Bayview) is on information

and belief licensed to do business in Ohio with its principal place of business in Florida

is a wholly owned subsidiary of Bayview Loan Servicing and is responsible for all

collection practices alleged.

5. Bayview Loan Servicing transacts or has transacted business in

Cuyahoga County, Ohio.

6. Defendant Lourdes Llorens (hereinafter Llorens) is a "natural person", who

on information and belief is an authorized agent for Bayview and is responsible for all

the collection practices alleged in this Complaint.

7. Defendant Mr. Ponds (hereinafter Ponds) is a "natural person", who on

information and belief is an authorized agent for Bayview and is responsible for all the

collection practices alleged in this Complaint.

8. Bayview, together with its subsidiaries, operates part of a common

enterprise (hereinafter collectively referred to as "Bayview").

9. Bayview is a 'debt collector" as defined in §803(6) of the FDCPA, and 15

U.S.C. §1692a(6).

10. Bayview is a "person" as that term is defined by §3(5) of RESPA, and 12

U.S.C. §2602(5), and subject to the requirements of RESPA and Regulation X.

11. In connection with the servicing and collection of the mortgage loan, the

servicing corporation Bayview, the authorized agents Llorens and Ponds furnish

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information to consumer reporting agencies. As such, Bayview. Llorens and Ponds are

subject to §623 of FCRA, and 15 U.S.C. §1681s-2, which imposes a series of duties

and prohibitions upon any person or entity that furnishes information to a, consumer

reporting agency.

The Plaintiff

12. (a)

Plaintiff Margaret H. Peacock (hereinafter Plaintiff also sometimes

referred to as consumer) is a resident of Cleveland Heights, Ohio.

Class Allegations

a. Class Definition

13. Plaintiff brings this claim, on behalf of herself and all others similarly

situated. Plaintiff is an individual who satisfies the following criteria:

a. Plaintiff is a resident of the State of Ohio

b. Plaintiffs loan was serviced by Bayview, and/or Llorens and/or Ponds at

anytime during the four years immediately preceding the filing of this

action.

c. Plaintiff was sent written notice that her mortgage loan was in default and was

contacted by Bayview, Llorens and/or Ponds by telephone and/or other

means as a part of an effort to collect such mortgage loan payments.

b. The class is so numerous that joinder of all members is impractical

14.

The class has over members, spread throughout Ohio

making joinder of all members impracticable.

c. There are question of law and fact common to members of the class

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15. There are questions of law and fact common to the members of the class,

which questions predominate over any questions affecting only individuals' class members. The principal questions are:

a. Whether Bayview, including also but not limited to Llorens and/or Ponds are debt collectors with respect to the loans they acquired the right to

collect;

b. Whether Bayview, including also but not limited to Llorens and/or Ponds

servicing practices violate CSPA, FOCPA, FCRA, RESPA, and Ohio common law; and

c. Whether Bayview, including but not limited to Llorens and/or Ponds

committed the alleged violations or omitted to perform required statutory and common-law obligations in an appropriate manner.

16. The essential fact issues that link all putative class members and the named Plaintiff are whether Bayview, and/or Llorens and/or Ponds customary practices violate several provisions of CSPA, FOCPA, FCRA, RESPA, and Ohio common law.

17. All of the claims in the present case arise from the same nucleus of

operative facts. The named Plaintiff alleges that Bayview, Llorens and/or Ponds failed to give statutorily required notices, failed to verify the amount of the debt when such verification was requested, and Bayview, and/or Llorens and/or Ponds are attempting to collect fees and costs that they are not legally entitled to collect.

d. Plaintiff claims are typical of the claims of all others similarly situated

18. The named Plaintiff claims arise from a common course of conduct that

effects all others similarly situated in a similar manner.

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19. Bayview, also including but not limited to Llorens and/or Ponds servicing

practices affect all others similarly situated in a similar manner.

e. Plaintiff is an Adequate Class Representative

20. The Plaintiff named herein is a member of one or more of the subclasses

defined herein. Plaintiff has been injured by the practices complained of and her claims

for damages do not conflict with the claims of the unnamed class members.

21. Plaintiff is vigorously represented by competent counsel and will fairly and

adequately represent and protect the interest of all others similarly situated in the class.

22. The named Plaintiff interest is aligned with the interest of the unnamed

class members. In pursing her own claim the named Plaintiff will advance the interest

of all other similarly situated unnamed class members and will fairly and adequately

represent the members of the class.

f. This action is properly maintainable under 23(8)(3)

23. This case involves violations of FDCPA for which Congress provided a

statutory right of class certification.

Factual Allegations

a. In October 2004 Plaintiff paid Bayview $45,000.00 during the pendency of a

foreclosure action, that was filed in Cuyahoga CountyOhio (Case No. 520518). The

$45,000.00 paid by the Plaintiff was never credited to her account. Bayview is holding

the $45,000.00 in a suspense account.

b. Bayview's Business Practices

24. Bayvlew is a financial services company specializing in the acquisition,

servicing, and resolution of mortgage loans, primarily in the "subprime" market. The

subprime market is comprised of persons who are considered to be greater credit risks or perceived greater credit risks including persons from lower-income or minority

neighborhoods.

25. As a mortgage servicers, Bayview, and/or Llorens and/or Ponds collect

and process loan payments from borrowers on behalf of the owner of the mortgage notes. Typically, the mortgage loans that Bayview, and/or Llorens and/or Ponds service are held in real estate investment trust ("REIT") on the secondary market for the benefit of investors. As an authorized agent Bayview is paid a servicing fee based on the unpaid principal balance of the loans in the REIT.

26. Bayview, and/or Llorens and/or Ponds profit from a myriad of fees that it

charges consumers on the loans it services. Many of the fees and charges Bayview, and/or Llorens and/or Ponds charge and collect are illegal, excessive or both.

27. Bayview, and/or Llorens and/or Ponds operate in a manner and utilize

unconscionable practices designed to maximize illegal and excessive charges and fees.

28. As a direct and proximate result of these practices Plaintiff has been

forced into foreclosure

29. Bayview, and/or Llorens and/or Ponds operated a scheme designed to

profit from said foreclosure and will capture any equity Plaintiff may have in the

foreclosed property.

c. Scheme to Maximize Late Charges

30. Bayview, and/or Llorens and/or Ponds operate a scheme designed to

maximize the "late charges" which were imposed on Plaintiff. The mortgage loan for the Plaintiff, which is being serviced by Bayview, and/or Llorens and/or Ponds has due

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dates and grace periods of time after which a loan payment is due but before which a

late fee may be assessed. In this instance, Bayview and/or Llorens and/or Ponds

received and deposited Plaintiffs' payment, but did not promptly post it to Plaintiffs'

account, on information and belief this was done in order to add late fees and additional

interest to Plaintiffs' account for failing to make her payment "on time."

31. Bayview, and/or Llorens and/or Ponds charged late fees after the loan

had been accelerated and there were no monthly payments due. As a result of these

practices, Plaintiff has fallen further behind on her scheduled mortgage payments

according to Bayview and/or Llorens and/or Ponds records.

32. Once the impermissible fee was posted to Plaintiffs' account, even though

Plaintiff has disputed it, the loan is now "in default" and "delinquent" under Bayview's

practices. Plaintiffs' loan is now categorized as in 'default" or "delinquent," by Bayview.

Bayview and/or Llorens and/or Ponds are now charging other unwarranted and bogus

fees.

33. Fraudulent late charges provide Bayview, and/or Llorens and/or Ponds

with a pretext to engage in other unfair and unconscionable practices. Once a late fee

was imposed the subsequent payments from Plaintiff have not been posted but instead

the payments are being held in a "suspense account." These practices have been

repeated several times over the ensuing months.

d. Schemes to Impose illegal and fraudulent fees

34. Bayview, and/or Llorens and/or Ponds also operate in a manner to

maximize illegal, unfair and unconscionable fees and charges it calls "corporate

advances" These "corporate advances" include numerous bogus fees.

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35. These corporate advances are added to the loan balance, and Bayview,

and/or Llorens and/or Ponds profit from interest charged on the advances.

36. Bayview's monthly billing statements do not itemize these corporate

advances for Plaintiff.

37. These bogus charges and attorneys fees that Bayview, and/or Llorens

and/or Ponds have imposed on Plaintiff are illegal under Ohio law.

38. When Plaintiff requested the amount of money necessary to "reinstate"

(i.e., bring their account current) or payoff her loan, Bayview, and/or Llorens and/or Ponds, demands contained fees that had been assessed by Bayview, and/or Llorens and/or Ponds including fees for property inspections, BPOs, demand letters, payoff quotes, attorneys' fees, and prepayment penalties, etc.

e. Forced Placed Insurance

39. Bayview, and/or Llorens and/or Ponds have also tried to milk additional

compensation from Plaintiff in the form of commission or otherwise, when it "force places" casualty insurance her home. Under the terms of mortgage loans serviced by Bayview, and/or Llorens and/or Ponds Plaintiff is required to maintain homeowners/fire (and, in some cases, flood) insurance on her home. Bayview, and/or Llorens and/or Ponds "advances" money to pay for casualty insurance that it places on the home when, according to Bayview, and/or Llorens and/or Ponds the insurance has been allowed to lapse, or proof has not been provided that the insurance has not lapsed.

40. Force placed insurance is much more expensive than insurance

purchased by the owner. In addition, Bayview charges interest on the money advanced

for force placed insurance.

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41. Bayview, and/or Llorens and/or Ponds have improperly force placed

casualty insurance on homes, including on those who Bayview knew or should have known already had insurance in place. As a result of the premiums for the force placed insurance, regular mortgage payments have been deemed insufficient, the loan placed in default status, and fees have been, improperly assessed by Bayview, and/or Llorens

and/or Ponds.

f. Abusive Debt collection practices

42. In collecting late payments, Bayview, and/or Llorens and/or Ponds have

used aggressive practices that have threaten Plaintiff with continuing collection calls, a negative credit rating, additional fees, and even foreclosure, to obtain Plaintiffs agreement to forbearance agreements or other workout solutions that demand the "total

amount due."

43. The total amount due includes all payments due and all fees assessed by

Bayview, and/or Llorens and/or Ponds. Bayview's collectors including but not limited to Llorens and Ponds are trained not to give Plaintiff a breakdown of the fees, but to insist upon the total amount due immediately and have discourage Plaintiff so as to avoid any disputes and questions about fees that Plaintiff may have.

44. Bayview's standard forbearance agreement required Plaintiff to pay all

fees assessed by Bayview and/or Llorens and/or Ponds. and also to waive any and all claims she might have against Bayview and/or Llorens and/or Ponds.

45. When Plaintiff disputed certain aspects of Bayview, and/or Llorens and/or

Ponds loan servicing practices, such as the timely posting of her payments, fees, force placed insurance, and/or inaccurate credit reporting, in many instances Bayview, and/or

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Llorens and/or Ponds have failed to timely and adequately acknowledge, investigate and respond to Plaintiffs complaint.

46. In many instances, as a result of Bayview, and/or Llorens and/or Ponds

failure to post Plaintiffs' mortgage payments to her account in a timely manner, Bayview, and/or Llorens and/or Ponds have made payments late for casualty insurance, property taxes and other charges from escrow accounts, and Plaintiff has consequently been assessed unwarranted late fees and related charges. This practice has put Plaintiff into delinquency it also has created the need for Plaintiff to pay additional money for taxes and insurance, and has harmed her credit rating.

47. In many instances Bayview, and/or Llorens and/or Ponds failure to pay

premiums for casualty insurance has resulted in lapse of coverage and then the imposition of force-placed insurance at higher costs.

g. Unconscionable Foreclosure Practices

48. As part of its collection practice Bayview and/or Llorens and/or Ponds

have threaten, Plaintiff with foreclosure and more charges. Bayview and/or Llorens and/or Ponds have contacted Plaintiff and claimed that thousands of dollars had to be paid immediately or her home would be sold. Plaintiff has paid the extortionate charges in an effort to save her home, but the fraudulent pattern simply begins again and continues with each payment cycle.

49. During the period of the pre-foreclosure dispute, Bayview, and/or Llorens

and/or Ponds have illegally added hundreds to thousands of dollars to what the Plaintiffs actual amount due is. Bayview, and/or Llorens and/or Ponds added amounts never contemplated by the original loan documents and are illegal under Ohio state law.

Bayview, the outcome is almost always the same.

Bayview an/or Llorens and/or

...

50. When Plaintiff requested a written accounting of her, payments and

charges, Bayview, and/or Llorens and/or Ponds eventually promised to send the victim

(Plaintiff) a document called an "activity statement." Bayview's statements are

incomprehensible and Bayview's own employees, depending upon whom Plaintiff

speaks to explains them to her differently each time.

51. Regardless of how much money the victimized Plaintiff has sent to

Ponds has cashed or is holding the check(s), then has made new and additional

demands upon the Plaintiff under the threat of foreclosure. Well into the fraud in some

cases, Bayview, and/or Llorens and/or Ponds will sometimes mail a "forbearance

agreement" to the victimized consumer. That document in this case has offered to allow

Plaintiff to "pay late fees and other fees" under an "extended payment plan." Included in

the "plan" is a paragraph that absolves Bayview, and/or Llorens and/or Ponds of any

and all claims that Plaintiff may have "now or in the future."

52. Many unsophisticated homeowners such as Plaintiff, under duress and

desperate to save the home that she, or even her elderly parent(s), may reside in - sign

the adhesive document. Often, within days Bayview, and/or Llorens and/or Ponds will

declare the "forbearance agreement" to be in default, even though it is not.

53. Foreclosure sale. Absent competent legal representation, the Plaintiff,

default in the foreclosure proceedings Bayview's file. Bayview, and/or Llorens and/or

Ponds, or their associates are the only bidders on the property, and all of the equity

ultimately accrues to Bayview and their "REO" (Real Estate Owned) partners.

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54. Upon foreclosure, Bayview, and/or Llorens and/or Ponds will collect

ridiculously exorbitant legal fees, "property-preservation" fees, late-fees, broker fees,

appraisal fees, "pre-payment-penalty" fees, and any other illegal fees they can invent to

help assure that in excess of the entire amount of the mortgagor's equity is taken.

Bayview then often launders the property through a series of REO portfolios that they

own or control, in an effort to create the appearance that Bayview actually "lost

thousands-of dollars" on the foreclosure.

Allegations with respect to named Plaintiff

55. The named Plaintiff has a loan that is being serviced by Bayview.

56. In the case of the named Plaintiff, Bayview has committed some or all, of

the unlawful, deceptive and unconscionable loan servicing practices.

57. In the case of the named Plaintiff, Bayview, an/or Llorens and/or Ponds

has failed to promptly post timely payment and have assessed Plaintiff with

unwarranted late charges

58. In the case of the named Plaintiff, Bayview and/or Llorens and/or Ponds

have charged more than one late fee for a single delinquency and otherwise pyramided

late charges.

59. In the case of the named Plaintiff, Bayview, and/or Llorens and/or Ponds

have posted payments made by Plaintiff as partial payments that were posted to

suspense accounts.

60. Bayview, and Llorens and/or Ponds have also charged the named Plaintiff

fees called corporate advances.

61. Bayview and/or Llorens and/or Ponds have also charged or attempted to

charge illegal fees as a condition to the reinstatement of Plaintiffs defaulted mortgage.

,.,.

62. Bayview and/or Llorens and/or Ponds have refused to credit Ms.

Peacock's account with a payment in the amount of $45,000.00 that was made by Ms.

Peacock.

63. In addition, in the case of the named Plaintiff, Bayview, and Llorens and/or

Ponds have put interest charges on sums it claimed to have advance on behalf of the

named Plaintiff.

64. In the case of the named Plaintiff Bayview, an/or Llorens and/or Ponds

have engaged in abusive debt collection practices.

65. Among other things the named Plaintiff has been subjected to numerous

and harassing contacts by Bayview and/or Llorens and/or Ponds, Plaintiff has also

been subjected to the failure on Bayview, and/or Llorens and/or Ponds parts to

promptly verify amounts due or to resolve disputes, and Plaintiff has been subjected to

the failure on Bayview, and/or Llorens and/or Ponds part to make the required

disclosures in connection with its debt collection activities.

66. The following allegations and Counts pertain to Bayview's illegal servicing

practices. These factual allegations apply to each and every potential class member.

COUNT ONE

Real Estate Settlement Procedures Act

67. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

68. As a mortgage loan servicer Bayview is subject to the provisions of the

Real Estate Settlement Procedures Act ("RESPA") contained at 12 USC Section 2601

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69. fn violation of 12 USC Section 2607, and in connection with the mortgage

loan, to Plaintiff, Bayview, and/or Llorens and/or Ponds have accepted servicing charges for the rendering of real estate settlement services that in fact were charges other than for services actually performed.

70. As a result of violating RESPA, and pursuant to 12 USC §2607(d)(2),

Bayview is severally liable to Plaintiff in an amount equal to three times the amount of charges paid for the settlement services.

COUNT TWO

Ohio Consumer Sales Practices Act

71. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

72. In providing various advice, mortgage including but not limited to mortgage

loan services, and otherwise through its relations and communications with Plaintiff, Bayview is subject to the provisions of the Ohio Consumer Sales Practices Act ("CSPA") at Ohio Revised Code §1345.01 et. seq.

73. In violation of CSPA, Bayview, and/or Llorens and/or Ponds have

committed unfair, deceptive, and unconscionable acts and practices in connection with Plaintiffs transaction, including but not limited to the following: a) taking advantage of Plaintiff's inability to protect her interests because of her inability to fully understand the complexities, and terms of the transactions; b) charging Plaintiff excessive prices for the services rendered; c) rendering services to Plaintiff with the knowledge that there was no reasonable probability of repayment of the obligations in full by Plaintiff; and d) by failing to properly account for the funds paid to Bayview by the Plaintiff.

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74. F'"ursuant to Ohio Revised Code §1345.09, Bayview is liable to Plaintiff for

each violation of CSPA in the amount equal to three times actual damages, and Plaintiff

is entitled to a statutory injunction barring Bayview, and/or Llorens and/or Ponds from

further violations of the CSPA.

COUNT THREE

Rescission Under Consumer Sales Practices Act

75. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

76. The transaction described above was a "consumer transaction" as defined

in RC §1345.01(A). Bayview, and/or its authorized agents who are Llorens and/or

Ponds acts and failure to act, as set forth above constitute unfair, deceptive, and

unconscionable act and practices in violation of RC §1345.02 and RC §1345.03. These

violations were made knowingly.

77. This cause of action is notification to the lender and the servicer Bayview,

its authorized agents Llorens and Ponds, that Plaintiff is rescinding the transaction in

question. Plaintiff is entitled to a declaratory judgment that the transaction is void and

rescinded.

COUNT FOUR

Injunctive Relief Under the Ohio Consumer Sales Practices Act

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78. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

79. The acts and practices of Bayview and/or its authorized agents Llorens

and Ponds set forth above violate Chapter §1345 of the Revised Code. Therefore,

Plaintiff is entitled to statutory injunction against the acts and practices that violate the

act pursuant to RC §1345.09(D).

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COUNT FIVE'"

Real Estate Settlement Procedures Act

80. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

81. As a servicer for the mortgage lender, Bayview, and/or Llorens and/or

Ponds are subject to the provisions of the Real Estate Settlement Procedures Act.

Specifically, they are required to account to the Plaintiff for specific charges for the

services rendered by Bayview.

COUNT SIX

Negligence

82. This Count arises under Ohio Common Law. Bayview, and/or Llorens

and/or Ponds had a duty to represent Plaintiff and her best interest in the mortgage

loan transaction(s). As representatives of Plaintiff, Bayview, and/or Llorens and/or

Ponds negligently failed to follow customary and usual skills and procedures in regular

use by members of their professions and positions.

83. The actions of Bayview, and/or Llorens and/or Ponds are the proximate

cause of the injury to Plaintiff.

84. As a result of the negligence of Bayview, and/or Llorens and/or Ponds the

Plaintiff (and all others similarly situated) has been damaged in an amount that she is

unable to determine with specificity at this time but is-believed to be an amount at least

equal to Twenty Million Dollars ($20,000,000.00).

COUNT SEVEN

Negligent and/or Intentional Misrepresentations

85. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

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86. [5uring the course of Bayview, and/or Llorens and/or Ponds dealings with

Plaintiff, every entity, jointly and severally, entered into a relationship of trust and

confidence with Plaintiff.

87. Bayview, and/or Llorens and/or Ponds jointly and severally, made

negligent and/or intentional misrepresentations to Plaintiff on which Plaintiff reasonably

relied, further Bayview, and/or Llorens and/or Ponds were negligent, including but not

limited to the following: a) failing to advise Plaintiff that Bayview, and/or Llorens and/or

Ponds would receive substantial fees in connection with the transactions; b) failing to

fully and completely disclose and explain the history and details of Bayview, and/or

Llorens and/or Ponds relationship with Plaintiff and c) otherwise failing to take the

utmost and/or reasonable care, caution, and diligence to protect the best interest of

Plaintiff.

88. Throughout the course of the relationship with Plaintiff, Bayview, and/or

Llorens and/or Ponds acted with the sole motivation of increasing fees and

compensation and with intentional and malicious disregard for Plaintiffs, best interest.

89. As a direct and proximate result of Bayview, and/or Llorens and/or Ponds,

negligence and negligent misrepresentation Plaintiff has suffered damages in an

amount, which, is not presently quantified with certainty but which will be proven at trial.

COUNT EIGHT

Breach of Fiduciary Duty

90. Plaintiff incorporates by reference each preceding paragraph as though,

fully pleaded herein.

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91. A fiduciary relationship is one in which special confidence and trust is

reposed in the integrity and fidelity of another and there is a resulting position of

superiority or influence.

92. Bayview, and/or Llorens and/or Ponds had a fiduciary relationship with

Plaintiff in that she contracted them to provide mortgage loan services, which

necessarily involves the duty of representing Plaintiff's best interests throughout the

mortgage servicing transaction.

93. Bayview breached its fiduciary duties by providing mortgage servicing

practices and terms that were contrary to Plaintiff's interests.

94. As a direct and proximate result of the actions of Bayview, and/or Llorens

and/or Ponds, Plaintiff, has suffered financial and emotional injury in an amount not yet

ascertainable, but which will be proven at trial.

95. The actions of Bayview, and/or Llorens and/or Ponds constitute the tort of

breach of fiduciary duty.

96. These actions were taken with malice, ill will, and/or reckless indifference

toward Plaintiff. Therefore, Plaintiff is entitled to receive actual compensatory and

punitive damages.

COUNT NINE

Civil Conspiracy

97. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

98. In connection with the servicing of the mortgage and loan made with

Plaintiff, Bayview, and/or Llorens and/or Ponds acted with malice, ill will, and reckless

indifference toward Plaintiff in concert with each other via a joint venture or conspiracy

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for the common purpose of accruing economic gains for themselves at the expense and detriment of Plaintiff.

99. Plaintiff was In fact injured as a direct and proximate result of this

malicious combination, which, inter alia, committed acts of fraud and breach of fiduciary obligation. As a result, Plaintiff is entitled to an award of actual, compensatory, and punitive damage in an amount to be proven at trial against Bayview, and/or Llorens

and/or Ponds.

COUNT TEN Civil RICO

100. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

101. Bayview and participants are "persons" as defined in Ohio Revised Code

§2923.31 (G).

102. Bayview, and/or Llorens and/or Ponds became members of a conspiracy and demonstrated by actions and words, an agreement to conduct and participate, directly or indirectly, in the affairs of the enterprise through a pattern of corrupt activity.

103. As a direct and proximate result of the conduct of Bayview, and/or Llorens and/or Ponds, Plaintiff has suffered damages in an amount which she is not presently quantified with certainty but which will be proven at trial.

COUNT ELEVEN

Breach of Contract

104. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

105. Based on the terms of the written agreements, Bayview was contractually

obligated to provide a statutorily legal loan servicing practices as promised. Bayview,

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and/or Llorens and/or Ponds, failure to comply with this contractual obligation

constitutes a breach of contract.

106. Based on the breach of contract made by Bayview, and/or Llorens and/or

Ponds, Plaintiff (and all other similarly situated) has been damaged in an amount that

she is unable to determine with specificity at this time but is believed to be amount at

least equal to Twenty Million Dollars ($20,000,000.00).

COUNT TWELVE

Fraudulent Misrepresentations

107. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

108. Bayview, and/or Llorens and/or Ponds knowingly concealed information,

which Federal Statute and Regulations require to be disclosed to the client.

109. Bayview entered into the mortgage servicing transaction with Plaintiff

knowing that it would not provide legal mortgage servicing practices to Plaintiff.

110. Bayview, and/or Llorens and/or Ponds concealments and

misrepresentations were made maliciously and negligently with knowledge of their

falsity.

111. Plaintiff justifiably and detrimentally relied upon all of Bayview, and/or

Llorens and/or Ponds false and fraudulent representa~~ons.

112. As a result of the fraud and unconscionable loan servicing practices

perpetrated by Bayview, and/or Llorens and/or Ponds, Plaintiff is entitled to damages in

an amount that she is unable to determine with specificity at this time but is believed to

be an amount at least equal to Five Hundred Thousand Dollars ($500,000.00).

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113. Ir Plaintiff had had knowledge of the falsity of Bayview, and/or Llorens

and/or Ponds representations relative to the servicing of her loan then she would not have relied upon said representations. Further, if Plaintiff had had knowledge of the

falsity of Bayview, and/or Llorens and/or Ponds representations she would not have

completed the subject transaction by agreeing to permit Bayview to service her mortgage.

OHIO CONSUMER PROTECTION ACT VIOLATIONS

COUNT THIRTEEN

Failure to Properly Post Consumer Payments

114. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

115. In the course and conduct of their loan servicing and collection, Bayview

and/or its authorized representatives and/or its authorized agents including but not limited to Llorens and Ponds in numerous instances have failed to timely or properly post payments received from borrowers (consumer(s)) in a timely manner, and then have assessed late fees and other charges as a result.

116. Bayview and/or their authorized representative(s) and/or authorized including but not limited to Llorens and Ponds agent(s), actions have caused and are likely to cause substantial injury.

117. Bayview and/or their authorized representatives and/or authorized agents

including but not limited to Llorens and Ponds acts or practices constitute unfair acts or practices in violation of Ohio Revised Code Section 1345.01 8t seq.

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COUNT FOURiEEN

Misrepresentation of Amounts Owed

118. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

119. In the course and conduct of their loan servicing and collection, Bayview,

and/or Llorens and/or Ponds in numerous instances have represented, expressly or by

implication that Plaintiff owed the amounts specified in Bayview, and/or Llorens and/or

Ponds communications.

120. On numerous occasions, Plaintiff do not owe the amounts that have been

specified in Bayview, and/or Llorens and/or Ponds communication, Plaintiff do not owe

the amounts specified because, (a) fees included in the amounts specified are a result

of Bayview, Llorens and/or Ponds failure to properly post payments: (b) fees included in

the amounts specified are not allowed under the mortgage contract or permitted by law:

and/or (c) the amounts have been calculated incorrectly by Bayview, Llorens and/or

Ponds.

121. Therefore, Bayview, Llorens and/or Ponds representations as setforth are

false or misleading and constitute deceptive acts or practices in violation of Ohio

Revised Code §1345.01 et. seq.

COUNT FIFTEEN

Unfair and Deceptive Assessment and Collection of Fees

122. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

123. In the course and conduct of their loan servicing and collection practices,

Bayview. Llorens and/or Ponds have represented to Plaintiff, expressly or by implication

24

that fees assessed and collected by Bayview, Llorens and/or Ponds were (a) allowed

under the mortgage contract and (b) permitted by law.

124. On numerous occasions, the fees assessed and collected by Bayview,

Llorens and/or Ponds were (a) not allowed under the mortgage contract and (b)

permitted by law. Nonetheless, Bayview, Llorens and/or Ponds assessed and collected

these fees.

125. Bayview, Llorens and/or Ponds actions have caused and are likely to

cause substantial injury to Plaintiff.

126. Bayview, Llorens and/or Ponds acts or practices constitute unfair and

deceptive acts or practice in or affection commerce in violation of Ohio Revised Code

§ 1345 01 ET. seq.

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

COUNT SIXTEEN

Using False and Deceptive Means to Collect Debts

127. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

128. On numerous occasions, in connection with the collection of debts that

were in default when obtained by Bayview, Bayview, and/or Llorens and/or Ponds have

used false, deceptive or misleading representations ~r means, in violation of §807 of

FDCPA, and 15 U.S.C. §1692(e), including but not limited to:

(a) Falsely representing the character, amount, or legal status of a debt, or any services rendered or compensation which may be lawfully received by a debt collector for collection, of a debt, in violation of §807(2)(A) and (8) of the FDCPA, and 15 U.S.C. §1692e(2)(A) and (8).

(b) Communicating or threatening to communicate to any person credit information which is known or which should be

25

false, including the failure to communicate that a disputed debt is disputed, in violation of §807(8) of the FDCPA, and15 U.S.C. §1692e(8) and

(c) Using false representations or deceptive means to collect or attempt to collect a debt or to obtain the information concerning a consumer in violation of §807(10) of the FDCPA, 15 U.S.C. § 1692(e)(10)

129. The acts and practices alleged are unfair and/or deceptive acts and/or

practices.

130. On numerous occasions, in connection with the collection of debts that

were in default when obtained by Bayview, Bayview, and/or Llorens and/or Ponds have

used unfair or unconscionable means to collect or attempt to collect a debt, including

but not limited to collecting amounts (including any interest, fee charge, or expense

incidental to the principal obligation) not authorized by the agreement creating the debt

or perm itted by law in violation of §808(1) of the FDCPA, and 15 U. s. C. § 1692(f)( 1 ).

COUNT SEVENTEEN

Failure to Provide Required Notices and Disclaimers

131. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

132. On numerous occasions, in connection with the collection of debts that

were in default when obtained by Bayview, Bayview, and/.or Llorens and/or Ponds have

failed to notify Plaintiff her right to dispute and obtain v·erification her debt and to obtain

the name of the original creditor, either in the initial communication with Plaintiff by

Bayview, or within five days thereafter, in violation of §809(a) of the FDCPA, and 15

u.s.c §1692g (a).

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VIOLATION OF THE FAIR CREDIT REPORTING ACT

..

COUNT EIGHTEEN

Furnishing Inaccurate Information to Credit Reporting Agencies

133. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

134. In numerous instances, in the course and conduct of its business Bayview

has furnished information relating to Plaintiff to a consumer credit reporting agency

when Bayview knew or consciously avoided knowing that the information was

inaccurate, and when Bayview has not, clearly and conspicuously, specified to Plaintiff

an address for mailing notices disputing said information.

COUNT NINETEEN

Failure to Correct Inaccurate Reporting

135. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

136. Bayview regularly and in the ordinary course of its business furnishes

information to one or more consumer credit reporting agencies about their transaction or

experience with Plaintiff, and thus must comply with the provision of Section 623(a)(2)

of the FCRA, and 15 U.S.C. § 1681s-2(a)(2).

137. In numerous instances in which Bayview has furnished to a consumer

reporting agency information that Bayview has determined is not complete and

accurate, Bayview has failed to promptly notify the consumer credit reporting agency of

that determination and provide to the agency any corrections to that information, or any

additional information, that was necessary to make the information provided by Bayview

to the agency complete and accurate, and Bayview has thereafter furnished to the

agency information that remained incomplete and inaccurate.

:~ i"::.'~)1 ~,.~.A. .. T,~~ (- POT "" ." ."';

... , .: ~~~~~'!1-··**,%>f·~_':~~~t.7 .:~... ··~~:~~~-··';:·rt~~.~ i ..

138. rtle acts and practices alleged herein constitute violations of Section

623(a)(2) of the FCRA, and 15 U.S.C. § 1681 s-2(a)(2).

REAL ESTATE SETTLEMENT PROCEDURES ACT VIOLATIONS

COUNT TWENTY

Violation of 12 U.S.C. Section 2605

139. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

140. In numerous instances, in connection with the servicing of the mortgage

loan and the administration of the escrow account, Bayview, and/or Llorens and/or

Ponds have violated the requirement of Section 6 of RESPA, 12 U.S.C. § 2605,

specifically including but not limited to the failure to:

a. promptly post the mortgage payment received from Plaintiff in a timely manner;

b. timely applying the mortgage payment received from Plaintiff to her principal and interest on her account;

c. making timely payment of escrow funds for casualty insurance premiums and property taxes to Plaintiffs' account, and

d. timely and adequately acknowledge, investigate and respond to Plaintiffs' qualified written request for information about the servicing of their loans and escrow accounts.

COMMON LAW CLAIMS

COUNT TWENTY-ONE

Breach Of Duty of Good Faith And Fair Dealing

141. Plaintiff incorporates by reference each preced ing parag raph as though

fully pleaded herein.

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- ".;

142. Erayview has breached its duty to Plaintiff of good faith and fair dealing

implied by every contract that neither party shall do anything which will have the effect

of destroying or injuring the right of the other party to receive the fruits of their contract.

143. Bayview, as a matter of intentions and planned business practices,

breaches its duty by:

e. refusing to timely credit payment to Plaintiffs account so as to create late fees and a deficiency and after a large deficiency, moving to foreclose on Plaintiff's home;

f. assessing unauthorized charges;

g. illegally accelerating the note, and

h. pursuing foreclosure in lieu of other legal remedies.

COUNT TWENTY-TWO

144. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

145. Bayview has knowingly concealed information, which the law requires to

be disclosed to Plaintiff.

146. Bayview's concealments include but are not limited to, failure to properly

account to the Plaintiff for their failure to properly identify and apply charges and

assessments relative to Bayview's loan servicing practices.

147. Bayview's concealments and misrepresentations were made maliciously

and with knowledge of their falsity.

148. Plaintiff justifiably relied upon Bayview, and/or Llorens and/or Ponds false

and fraudulent representation in the collection and servicing of her loan.

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- .... :~"!.:'f -, "i:"

149. A"!. a result of the fraud perpetrated by Bayview, and/or Llorens and/or

Ponds Plaintiff is entitled to damages in an amount that she is unable to determine with

specificity at this time but is an amount believed to be in excess of Twenty Million

Dollars ($20,000,000.00) COUNT TWENTY-THREE

Negligent Misrepresentation And Intentional Infliction Of Emotional Distress

150. Plaintiff incorporates by reference each preceding paragraph as though

fully pleaded herein.

151. During the course of Bayview, and/or Llorens and/or Ponds dealings with

Plaintiff, Bayview, and/or Llorens and/or Ponds negligently and/or intentionally, by their

acts and/or omissions, made material misrepresentations of fact, and were negligent in

a number of instances, including but not limited to, stating that Plaintiff was obligated to

pay amounts that were improperly or illegally accessed.

WHEREFORE, Plaintiff and all others similarly situated (potential class

members), prays for judgment against Bayview Loan Servicing, Lourdes Llorens and

Mr. Ponds, jointly and severally, in an amount that is not presently quantified with

certainty, but at least equals Twenty Million Dollars ($20,000,000.00), or such other

amount that will be proven at trial, for costs, for reasonable attorney fees, and for

whatever other relief the Court deems appropriate under the circumstances.

Respecttu Ily s u bm itted,

(/ .

G RY OOK (0021240) Attorney for Plaintiff Margaret H. Peacock

27801 Euclid Ave., Suite 640 Euclid, Ohio 44132

(216) 261-8839

(216) 261-8840 (Fax)

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JURY DEMAND

Plaintiff hereby demands a trial by jury in this case and requests the maximum number of jurors allowed by law.

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