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IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA ARGENT MORTGAGE COMPANY, L.L.c., Plaintiff,
v. )

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Case No. CJ-2004-9627

ANTH01'.TYWARRIOR and KIMBERLY WARRIOR, husband and wife; and OCCUPANTS OF THE PREMISES, Defendants. and ANTHONY WARRIOR and KIMBERLY WARRIOR, Third-Party Plaintiffs,
v.

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) ) )
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COUNTRY HOME LOANS OF OKLAHOMA, Third-Party Defendants.

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ANS\VER, COUNTERCLAIM AND THIRD-PARTY PETITION OF THE DEFENDANTS ANTHONY WARRIOR AND KIMBERLY WARRIOR The Defendants, Anthony Warrior and Kimberly Warrior ("Warriors"), for their Answer to the Plaintiffs Petition for Foreclosure of Mortgage, allege and state: 1. Upon information and belief, Defendants admit the allegations contained in numerical Petition.

paragraphs 1 and 2 in Plaintiffs 2.

Defendants deny the allegations contained in numerical paragraphs 3 through 12 in

Plaintiffs Petition.

AFFIRM A TlVE/OTHER DEFENSES

3. granted. 4. 5. 6.

Plaintiffhas failed to state a claim against these Defendants upon which relief can be

Plaintiff and/or Defendants' broker are guilty of actual and/or constructive fraud. Plaintiff breached its contract with these Defendants and such breach is tortious. Plaintiff rna y be guilty 0f vio lating specific provisions ofRESP A, TILA, and H0 EPA

thus warranting various remedies to these Defendants, including, but not limited to, rescission and/or damages. 7. Defendants are entitled to an offset as to any amounts recovered by Plaintiff against

these Defendants. 8. Third parties, named or unnamed in this lawsuit, are guilty of fraud and conspiracy

to conceal material information from these Defendants and/or to perpetrate a fraud upon these Defendants, creating various remedies in favor of these Defendants, including, but not limited to, rescission and/or damages. 9. 10. The Plaintifflacks capacity and/or standing to bring the present lawsuit.

Plaintiff has failed to comply with the terms of the loan note - an adhesion contract

- which it drafted and required Defendants to sign. 11. 12. Plaintiff has failed to mitigate its alleged damages. Inasmuch as this lawsuit has only recently been filed, and discovery has not yet begun,

Defendants reserve the right to list additional affirmative defenses and/or assert other claims at a later time, after the parties have had an opportunity to conduct discovery.

2

WHEREFORE, the Defendants, Anthony Warrior and Kimberly Warrior, respectfully request that judgment be entered in their favor, and that they be awarded all costs expended in this matter, including attorney's fees, and such other and further relief as this Court may deem just and proper. COUNTERCLAIM Defendants, Anthony Warrior and Kimberly Warrior, for their Counterclaim against the Plaintiff, allege and state:
FIRST CLAIM FOR RELIEF

Violations ofthe Home Ownership and Equity Protection Act (HOEPA). Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA) The Defendants, Anthony Warrior and Kimberly, for their First Claim for Relief, allege and state: 1. As set forth in Plaintiffs Petition, Argent Mortgage Company, LLC ("Argent") is a

corporation duly organized under the laws of the United States of America, and did business in the State of Oklahoma. 2. Upon information and belief, Plaintiff has violated various provisions of the Home

Ownership and Equity Protection Act ("HOEPA"), the Truth in Lending Act ("TILA") and/or the Real Estate Settlement Procedures Act ("RESPA"). 3. 4. The specific violations ofthese Acts will be identified through the discovery process. However, according to the Settlement Statement furnished to these Defendants at the

time of closing, the mortgage broker, Country Home Loans of Oklahoma, was paid a commission, or loan origination fee, in the amount of$3,082.16. This loan origination fee is greatly in excess of

the standard one percent (1%) of the loan amount. Further, this loan origination fee was paid from Defendants' funds at settlement. In addition, the same mortgage broker was paid a yield spread

premium, by Argent, in the amount of $1 ,888 .00, outside of closing. 3

5.

Incredibly, the same mortgage broker was also paid an unconscionable

$500.00

"processing fee," from the Defendants' funds at settlement. 6. Defendants. 7. The above-referenced fees are unreasonable by any standards, even if services were None of the above-referenced fees were properly disclosed by Argent to these

actually performed by the mortgage broker, Country Home Loans of Oklahoma. 8. The yield spread premium paid to Country Homes Loans of Oklahoma by Argent was

an illegal referral fee or kickback, and in violation of the Federal Real Estate Procedures Act (RESPA) and the Truth in Lending Act (TILA). 9. ill addition, it is anticipated that discovery in this case will reveal that this Plaintiff,

in collusion with its appraiser, the real estate transaction broker, and the mortgage broker, unlawfully adjusted the appraisal of the subject real property at a much higher value than its real worth. This adjustment of the appraisal is in violation of numerous provisions of HOEPA, TILA and RESPA. 10. As additional violations of certain provisions ofHOEPA, Tll.A and/or RESPA, it is

anticipated that discovery in this case will reveal that Argent paid "junk fees" to various persons or entities, including, but not limited to, the mortgage broker. Defendants allege that no services were provided to warrant such fees; alternatively, the junk fees in question are unreasonable in amount and not commensurate with the services actually performed. 11. Defendants' closing file is replete with failures to disclose on the part of Argent and

further efforts to defraud these Defendants on the part of Argent, and, thus, violations of RESPA, HOEPA and TILA. 12. Upon information and belief, Defendants allege that it is the corporate/business goal

of Argent to increase its profits by enticing brokers, such as Country Home Loans of Oklahoma, to

4

deceive their borrowers by paying the brokers illegal referral fees and/or kickbacks for increasing the interest rate over and above what the borrowers are eligible for, based on their credit scores. 13. Upon information and belief, these Defendants/Third-Party Plaintiffs further allege

that the actions of Argent, as described above, were not isolated events, but, rather, were consistent with approved companywide practices or policies which reward and encourage brokers to deceive their borrowers, which deceit inures to the benefit of the brokers and, of course, to Argent. In addition, Argent's actions in charging "junk fees" to these Defendants/Third-Party consistent with approved companywide practices or policies. 14. The conduct of Argent, described above, has affected and damaged not only these Plaintiffs in the present case, but numerous other borrowers and Plaintiffs is also

Defendants/Third-Party

homeowners in Oklahoma and across the country, as well. 15. Defendants are Native Americans who are gainfully employed and have impeccable Upon information and belief, these Defendants were targeted by

reputations in the community.

Argent because of their minority status. Again, upon information and belief, such conduct on the part of Argent was not an isolated event, but, rather, consistent with approved companywide practices or policies which reward and encourage such predatory lending practices, especially with respect to minorities. 16. The conduct of Argent, described above, was intentional and reckless, and was

perpetrated for the sole purpose of financial gain and profit of Argent, at the expense of these unknowing Defendants. Such conduct on the part of Argent reflects a callous disregard for these

Defendants, and others in their position, and warrants the imposition of punitive damages against Argent.

5

17.

As a result of Argent's violations of certain provisions of HOEPA, TILA and/or Further,

RESPA, these Defendants have been seriously and permanently injured and damaged.

Argent's conduct warrants the imposition of punitive damages, as punishment and example to Argent, and to deter others from like conduct. WHEREFORE, the Defendants, Anthony Warrior and Kimberly Warrior, pray for judgment against the Plaintiff in a sum in excess ofTen Thousand Dollars ($10,000.00), plus their attorney fees and costs incurred, and any and all further relief to which this Court deems proper and just.
SECOND CLAIM FOR RELIEF

Tortious Breach o(Contract The Defendants, Anthony Warrior and Kimberly Warrior, for their Second Claim for Relief, adopt and reallege the allegations contained in numerical paragraphs 1 through 17 above in their Cross-Claim, the denials and averments contained in their Answer, the allegations contained in their Counterclaim, and, in addition, allege and state: 18. Argent owed these Defendants a duty to deal fairly and in good faith. Said differently,

infused in every contract is a duty to deal fairly and in good faith. 19. Based on the particular facts and circumstances present, Argent breached its duty to

deal fairly and in good faith with these Defendants, as explained in the Claim for Relief, above. See Beshara v. Southern National Bank, 928 P.2d 280 (Okla. 1996). 20. As a result of Argent's tortious breach of contract, or bad faith, these Defendants have

suffered serious and permanent injuries and damages. In addition, the conduct of Argent warrants the imposition ofpunitive damages, as punishment and example to Argent, and to deter others from like conduct.

6

WHEREFORE, the Defendants, Anthony Warrior and Kimberly Warrior, pray for judgment against the Plaintiff in a sum in excess of Ten Thousand Dollars ($10,000.00), plus their attorney fees and costs incurred, and any and all further reliefto which this Court deems proper and just.
THIRD CLAIM FOR RELIEF

Fraud and Concealment - Argent The Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly Warrior, for their

Third Claim for Relief, adopt and reallege the allegations contained in numerical paragraphs 1 through 20 above in their Third-Party Petition, the denials and averments contained in their Answer, the allegations contained in their Counterclaim, and, in addition, allege and state: 21. Argent represented to these Defendants/Third-Party Plaintiffs on the Settlement

Statement that it had made certain payments in connection with reasonable and necessary expenses incurred - payments to be reimbursed by, and deducted from, the borrowers' funds at settlement. Upon information and belief Argent did not actually pay these junk fees, as represented to these Defendants/Third-Party Plaintiffs. Alternatively, if Argent did pay these fees, these fees were

unreasonable in amount, and known to be unreasonable by Argent. 22. 23. regard. 24. Argent profited from its fraudulent misrepresentations, to these Defendants/ThirdArgent's representations in this regard were false, and knowingly false. These Defendants/Third-Party Plaintiffs relied on Argent's representations in this

Party Plaintiffs's expense and detriment. 25. Argent did not disclose to these Defendants/Third-Party Plaintiffs that it paid Country

Home Loans Of Oklahoma a referral fee or kickback for increasing the interest rate.

7

26.

Argent did not disclose to these Defendants/Third-Party

Plaintiffs that it improperly

and unlawfully increased the value of Defendants/Third-Party Plaintiffs' home, in collusion with the mortgage broker and real estate transaction broker. 27. concealment. 28. As a result of Argent's fraud and concealment, described above, Defendants/ThirdThe conduct of Argent, as described above, is fraudulent. It also constitutes

Party Plaintiffs have suffered substantial monetary damages to be proven at the time of trial. 29. Upon information and belief, Defendants/Third-Party Plaintiffs allege that it is the

corporateibusiness goal of Argent to increase its profits by enticing brokers, such as Country Home Loans of Oklahoma, to deceive their borrowers by paying the brokers illegal referral fees and/or kickbacks for raising the interest rates otherwise available to the borrowers based on their credit scores. Further, upon information and belief, Defendants/Third-Party Plaintiffs allege that it is the

corporateibusiness goal of Argent to unlawfully adjust the appraisals of homes so that loans can more easily be issued to borrowers. In addition, upon information and belief, Defendants allege that it is the corporateibusiness goal of Argent to increase its profits by assessing its borrowers "junk

fees," such as those referenced above. 30. Upon information and belief, these Defendants/Third-Party Plaintiffs further allege

that the actions of Argent, as described above, were not isolated events, but, rather, were consistent with approved companywide practices or policies which reward and encourage brokers to deceive their borrowers, which deceit inures to the benefit of the brokers and, of course, to Argent. In addition, Argent's actions in charging "junk fees" to these Defendants/Third-Party consistent with approved companywide practices or policies. Plaintiffs are also

8

31.

In addition, upon information and belief, these Defendants/Third-Party Plaintiffs were

targeted by Argent because oftheir minority status. These Defendants/Third- Party Plaintiffs believe and therefore allege that Argent has a business practice of taking advantage of minorities. 32. The conduct of Argent, described above, has affected and damaged not only these

Defendants/Third- Party Plaintiffs, but numerous other borrowers and homeowners in Oklahoma and across the country, as well. 33. The conduct of Argent, described above, warrants the imposition of punitive

damages, as punishment and example to Argent and to deter others from like conduct. WHEREFORE, the Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly

Warrior, pray for judgment against the Third-Party Defendant, Argent, in a sum in excess ofTen Thousand Dollars ($10,000.00), plus costs and attorney's fees, and any all further relief to which this Court deems proper and just. THIRD-PARTY PETITION The Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly Warrior, for their

Third-Party Petition against the Third-Party Defendant, Country Home Loans of Oklahoma, Inc. ("Country Home Loans"), alleges and states:
FIRST CLAIM FOR RELIEF

Violations ofthe Real Estate Settlement Procedures Act (RESPA) Country Home Loans 1. Country Home Loans is organized under and by the laws of the State of Oklahoma

and does business in the State of Oklahoma. 2. Country Home Loans acted as the broker in connection with the mortgage loan Plaintiffs by Argent and at issue in this lawsuit.

provided to these Defendants/Third-Party

9

3.

According to the Settlement Statement furnished to these Defendants/Third-Party

Plaintiffs, Country Home Loans was paid a commission, or loan origination fee, in the amount of $3,082.16. This loan origination fee is greatly in excess ofthe standard one percent (1%) of the loan amount. Further, this loan origination fee was paid from the Warriors' funds at settlement.
4.

In addition, Country Home Loans was paid a yield spread premium by Argent in the outside of closing.

amount of$I,888.00, 5.

The yield spread premium paid to Country Home Loans by Argent was never properly

disclosed to the Warriors. 6. The yield spread premium paid to Country Home Loans by Argent constituted an

illegal referral fee or kickback, and was in violation ofthe federal Real Estate Settlement Procedures Act (RESPA) and the Truth In Lending Act (TILA). 7. Incredibly, Country Home Loans was also paid an unconscionable $500.00

"procession fee," from the Warriors' funds at settlement.
S.

None of the above-referenced fees were properly disclosed by Country Home Loans Plaintiffs.

to these Defendants/Third-Party 9.

The above-referenced fees are unreasonable by any standards, even ifservices were

actually performed by Country Home Loans. 10. In addition, it is anticipated that discovery in this case will reveal that Country Home

Loans, in collusion with Argent, its appraiser, and the real estate transaction broker, unlawfully adjusted the appraisal of the subject real property at a much higher value than its real worth. This adjustment of the appraisal is in violation of numerous provisions ofHOEP A, TILA and RESP A. 11. Upon information and belief, Defendants/Third-Party Plaintiffs allege that it is the

corporate/business goal of Country Home Loans to increase its profits by disclosing interest rates

10

to its borrowers that are either above the par rate offered by the lender and available to the borrower at the time, or by disclosing interest rates to its borrowers that are higher than that which the borrower may otherwise be eligible for and which are available to the borrower, so that Country Home Loans may receive a yield spread premium from the lender. The Warriors also allege that Country Home Loans routinely inflates its loan origination fee over and above the one percent (1%) standard mark, and, in addition, as a matter of course, charges its borrowers unconscionable "processing fees" for services not performed; alternatively, the true value of these so-called "processing fees" is much less than the exorbitant fees charged by Country Home Loans. 12. Upon information and belief, these Defendants/Third-Party Plaintiffs further allege

that the actions of Country Home Loan, described above, were not isolated events, but, rather, were consistent with approved companywide practices or policies which reward and encourage the systematic misrepresentation to its borrowers in order to receive illegal referral fees or kickbacks from the lender at the expense of the unknowing borrowers. actions in charging Defendants/Third-Party policies. 13. The conduct of Country Home Loans, described above, has affected and damaged not Plaintiffs but numerous other borrowers and homeowners in excessive loan origination In addition, Country Home Loans' fees to these

fees and loan processing

Plaintiffs is also consistent with approved companywide practices or

only these Defendants/Third-Party

Oklahoma and across the country, as well. 14. The Warriors are native Americans who are gainfully employed and have impeccable

reputations in the community. Upon information and belief, the Warriors were targeted by Country Home Loans because of their minority status. Again, upon information and belief, such conduct on the part of Country Home Loans was not an isolated event, but, rather, consistent with approved

11

companywide practices or polices which reward and encourage such predatory lending practices, especially with respect to minorities. 15. The conduct of Country Home Loans, described above, was intentional and reckless, Plaintiffs of the

and was perpetrated for the sole purpose of depriving these Defendants/Third-Party

lowest interest rate that was available to them so that Country Home Loans could obtain an illegal referral or kickback from the lender. Such conduct on the part of Country Home Loans reflects a reckless and callous disregard for these Defendants/Third-Party Plaintiffs and others in their position, and warrants the imposition of punitive damages against Country Home Loans. WHEREFORE, the Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly

Warrior, pray for judgment against the Third-Party Defendants, Country Home Loans and Argent, in a sum in excess ofTen Thousand Dollars ($10,000.00), plus costs and attorneys fees, and any and all further relief to which this Court deems proper and just.
SECOND CLAIM FOR RELIEF

Fraud/Breach of Fiduciary Duty - Country Home Loans The Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly Warrior, for their

Second Claim for Relief, adopt and reallege the allegations contained in numerical paragraphs 1 through 15 above in their Third-Party Petition, the denials and averments contained in their Answer, the allegations contained in their Counterclaim, and, in addition, allege and state: 16. Country Home Loans represented to Defendants/Third-Party Plaintiffs that it had

obtained the lowest interest rate available in connection with their mortgage loan. 17. Country Home Loans, as fiduciary, owed a fiduciary duty to these Defendants/Third-

Party Plaintiffs in connection with the procurement of the mortgage loan in question. When these

12

Defendants/Third-Party

Plaintiffs requested Country Home Loans to obtain the lowest possible

interest rate Country Home Loans had a fiduciary obligation to make a good faith effort to do so. 18. Country Home Loans did not disclose to these Defendants/Third-Party Plaintiffs that

the interest rate actually offered by Argent was lower than that interest rate disclosed by Country Home Loans to these Defendants/Third-Party 19. Plaintiffs.

The information provided by Country Home Loans to these Defendants/Third-Party

Plaintiffs in this regard was false, and knowingly false. In addition, the actions of Country Home Loans in this regard constitutes concealment. 20. These Defendants/Third-Party Plaintiffs relied on Country Home Loans'

representations that it had obtained the lowest interest rate possible. 21. Country Home Loans did not disclose to these Defendants/Third-Party Plaintiffs that

it was being paid a referral fee or kickback from Argent for increasing the interest rate. 22. The conduct of Country Home Loans described above, is fraudulent and, further,

constitutes a breach of Country Home Loans' fiduciary duty to these Defendants/Third-Party Plaintiffs. 23. As a result of Country Home Loans' fraud and breach of fiduciary duty, described Plaintiffs have suffered substantial monetary damages. Plaintiffs allege that it is the

above, these Defendants/Third-Party 24.

Upon information and belief, Defendants/Third-Party

corporatelbusiness goal of Country Home Loans to increase its profits by disclosing interest rates to its borrowers that are either above the par rate offered by the lender and available to the borrower at the time, or by disclosing interest rates to its borrowers that are higher than that which the borrower may otherwise be eligible for and which are available to the borrower, so that Country Home Loans may receive a yield spread premium from the lender. The Warriors also allege that

13

Country Home Loans routinely inflates its loan origination fee over and above the one percent (1%) standard mark, and, in addition, as a matter of course, charges its borrowers unconscionable "processing fees" for services not performed; alternatively, the true value of these so-called "processing fees" is much less than the exorbitant fees charged by Country Home Loans. 25. Upon information and belief, these Defendants/Third-Party Plaintiffs further allege

that the actions of Country Home Loan, described above, were not isolated events, but, rather, were consistent with approved companywide practices or policies which reward and encourage the systematic misrepresentation to its borrowers in order to receive illegal referral fees or kickbacks from the lender at the expense of the unknowing borrowers. actions in charging Defendants/Third-Party policies. 26. The conduct of Country Horne Loans, described above, has affected and damaged not Plaintiffs but numerous other borrowers and homeowners in excessive loan origination In addition, Country Home Loans' fees to these

fees and loan processing

Plaintiffs is also consistent with approved companywide practices or

only these Defendants/Third-Party

Oklahoma and across the country, as welL 27. The Warriors are native Americans who are gainfully employed and have impeccable

reputations in the community. Upon information and belief, the Warriors were targeted by Country Home Loans because of their minority status. Again, upon information and belief, such conduct on the part of Country Home Loans was not an isolated event, but, rather, consistent with approved companywide practices or polices which reward and encourage such predatory lending practices, especially with respect to minorities. 28. The conduct of Country Horne Loans, described above, was intentional and reckless, Plaintiffs of the

and was perpetrated for the sole purpose of depriving these Defendants/Third-Party

14

lowest interest rate that was available to them so that Country Home Loans could obtain an illegal referral or kickback from the lender. Such conduct on the part of Country Home Loans reflects a reckless and callous disregard for these Defendants/Third-Party Plaintiffs and others in their posi tion, and warrants the imposition of punitive damages against Country Home Loans. WHEREFORE, the Defendants/Third-Party Plaintiffs, Anthony Warrior and Kimberly pray

for judgment against the Third-Party Defendant, Country Home Loans, in a sum in excess ofTen Thousand Dollars ($10,000.00), plus costs and attorney's fees, and any all further relief to which this Court deems proper and just.

Gerard F. Pignato, OBA N 11473 PIGNATO & COOPER, P .C. 1120 Robinson Renaissance 119 North Robinson Avenue Oklahoma City, Oklahoma 73102 Telephone: (405) 606-3333 Facsimile: (405) 606-3334 ATTORNEYS FOR DEFENDANTS/ THIRD-PARTY PLAINTIFFS, ANTHONY WARRIOR AND KlMBERL Y WARRIOR

ATTORNEY LIEN DEMANDED

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..

CERTIFICATE

OF SERVICE

This is to certify that on the;;;t_ day of June 2005, a true and correct copy of the above and foregoing instrument was forwarded to: Creighton C. Collier, Esquire
KIVELL, RAYMENT AND FRANCIS, A P.C.

VIA CERTIFIED MAIL DELIVERY

Triad Center, Suite 240 7666 East 6pt Street Tulsa, Oklahoma 74133
ATTORNEYS FOR PLAINTIFF

16

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