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UNITED STATES DISTRICT COURT

1
NORTHERN DISTRICT OF CALIFORNIA
2 DIVISION OF SAN JOSE

5 ) Case No.:
SYLVIA JONES, )
6 )
Plaintiff, ) CIVIL ACTION
7 )
vs. )
8 MORTGAGEIT et. al.,; GMAC MORTGAGE)
LLC et. al., AND DEBRA ROSENSTIEN et.)
9 )
al., )
10
Defendant,
DEMAND FOR JURY TRIAL
11

12 COMPLAINT
13
Sylvia Jones (hereinafter “Plaintiff”) is the legal title holder and owner of the property located at
14
1057 Delna Manor Ln, San Jose, California. In April 2006 Plaintiff obtained a first and second
15
loan to purchase her property. The loans were obtained from MortgageIT Inc. (“ hereinafter
16
MIT”) The loans financing was a 100% that consisted of a 80% first in the amount of
17
$371,200 and a 20% second loan in the amount of $92,800. The total amount of credit extended
18 to Plaintiff from MIT was in the amount of $464,000. MIT transferred the servicing rights for
19 the first loan to GMAC Mortgage LLC (“hereinafter GMACM”) on July 14, 2006. The servicing
20 right for the second loan was transferred on July 3, 2006 to Select Portfolio Service (hereinafter

21 “SPS”). Upon information and belief, Plaintiff alleges that all the Defendant’s are responsible

22
for the wrongful acts alleged herein and are responsible for the injuries and damages caused to
Plaintiff.
23

24
JURISDICTION
25

26 Pursuant to 28 U.S.C. §1331 and 28 U.S.C. §1332 , this court has subject matter jurisdiction in
27 the form of a federal question and/or diversity jurisdiction. Plaintiff’s damages exceed the

28 $75,000.00 jurisdictional minimal required by this Court.

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VENUE
1

2 Venue is appropriate in this court because all of the Defendant’s reside outside this district, and

3 a substantial amount of the acts and omissions giving rise to this lawsuit occurred in this district.
Defendant’s MIT, GMACM, and DEBRA ROSENSTIEN (“hereinafter ROSENSTEIN”)
4
conducted and engaged in substantial, systematic, and continuous business activities herein
5
California.
6

7
INTRADISTRICT ASSIGNMENT
8

9 This lawsuit should be assigned to the San Jose Division of this Court because a substantial part

10
of the events or omissions which give rise to this lawsuit occurred in Santa Clara County.

11
PARTIES
12

13 Defendant, MORTGAGEIT INC. is a foreign corporation organized and existing under the laws
of the State of New York with its principal place of business being in State of New York,
14
and regularly conducted, continues to conduct business, and at all times relevant hereto,
15
regularly conducted business, in California.
16

17 Defendant, GMAC MORTGAGE LLC is a foreign corporation organized and existing under
18 the laws of the State of Delaware with its principal place of business being in the State of
19 Delaware. GMACM conducted, continues to conduct, and at all times relevant hereto,

20 regularly conducted business in California.

21
Defendant, DEBRA ROSENSTEIN, is an authorized agent and employee for GMACM at their
22
office located at 100 Witmer Road, Horsham, PA 19044 a foreign corporation which
23 conducts business, and at all times relevant hereto, regularly conducted business, in
24 California.
25

26 Sylvia Jones is a homeowner who resides in San Jose, California and who’s property is located

27
at 1057 Delna Manor Ln, San Jose, CA 95128

28

COMPLAINT FOR DAMAGES - 2-


1

3 FACTUAL BACKGROUND
Plaintiff purchased her very first home in April of 2006. Plaintiff obtained 100%
4
financing from MIT. MIT transferred the servicing rights to both Plaintiff’s loans shortly after
5
the loan closed escrow. The first loan’s servicing rights were transferred to GMACM beginning
6
on July 14, 2006. Servicing rights to the second loan was transferred to SPS on July 3, 2006.
7
Plaintiff made all of her mortgage payments to the new servicers via cashier checks pursuant to
8
the terms of the mortgage contract before the 15 day grace as stated on page three (3), item 7(A).
9 (see attached exhibit A)
10 Plaintiff intended to refinance her home after six (6) months of ownership so that she
11 could lower her interest rate and access the equity in her home. The Plaintiff began the refinance
12 process in October of 2006. Interstate Financial was Plaintiff’s employer and brokered the

13
original loan to MIT.
Interstate Financial pulled Plaintiff’s credit report through Land America INFO1
14
(“hereinafter INFO1”) on October 17, 2006. The credit report showed Plaintiff’s first loan,
15
which was being serviced by GMACM, had not been reported to any of the credit reporting
16
agencies (hereinafter “CRAs). However, SPS had reported the second loan which it was
17
servicing.
18
The credit report also showed that Plaintiff whose original credit score as of April 2006
19 was 683 had decreased to 622 – a drop of 61 points. Plaintiff had not incurred any additional
20 debt obligation from April through October which could have justified the 61 point drop in
21 Plaintiff’s credit score.
22 Plaintiff contacted INFO1 and spoke to Sandra and asked her to take a look at Plaintiff’s

23 credit report to try and determine the cause for the drastic drop in Plaintiff’s credit score. Sandra
stated to Plaintiff the reason that her credit score had dropped was because the first mortgage
24
loan had not been reported to the CRAs. Sandra advised Plaintiff to contact the loan servicing
25
company and ask them to report her payment history. Sandra assured Plaintiff that once they
26
report her mortgage her credit score would increase well over 720.
27
Plaintiff contacted GMACM on October 17, 2006 and spoke to a customer service
28
representative named Zabby. Zabby insured Plaintiff that he would put a rush on her request to

COMPLAINT FOR DAMAGES - 3-


report her mortgage and he was sending an email to the department in charge of reporting to the
1
CRAs. Zabby also stated to Plaintiff she would receive a return call from the Credit Reporting
2
Department by 4:00 p.m. that afternoon. Plaintiff did not received a return phone call from
3
GMACM that afternoon., so Plaintiff placed another phone call to GMACM and spoke to
4
another customer service representative shortly after 4:00 p.m..
5
This employee stated Zabby had provided the Plaintiff with incorrect information. She
6 stated that even if a mortgagor requested expedited reporting, GMACM would take up to at least
7 4 to 6 weeks to report to the CRAs and that it was their company’s policy. Plaintiff asked to
8 speak to a supervisor. Plaintiff spoke to a gentleman named Robert (employee number 85062)
9 who identified himself as a customer service supervisor. Robert stated that as per the Real Estate

10
Settlement Procedure Act (hereinafter “RESPA”) GMACM did not have to report a mortgage
payment history with the CRAs until it had serviced the loan for a period of 60 days.
11
He further explained that GMACM had only began servicing Plaintiffs’ loan on July 14,
12
2006 and therefore it was not going to and not required to report her loan until November 2006.
13
Plaintiff stated that if RESPA required a loan servicer to report the mortgage, after 60 days of
14
servicing a loan then Plaintiff’s mortgage should have been reported in October 2006 if
15
servicing started on July 14, 2006. Robert’s response was that RESPA and GMACM’s policy
16 requires that they report to the CRAs in November of 2006 and they would not report her
17 mortgage until then and he abruptly ended the conversation.
18 Plaintiff contacted the Department of Corporation and filed a complaint. Plaintiff also
19 sent three (3) qualified written request (hereinafter “QWR”) to GMACM asking specifically for

20
the Defendant to report her mortgage payment history, so she could refinance her property.
GMACM never responded to Plaintiff’s three (3) QWR. Plaintiff received a letter from
21
GMACM’s authorized agent, Debra Rosenstein (hereinafter “Rosenstein”). Her letter stated that
22
it was GMACM’s policy to report Plaintiff’s mortgage in November to insure there would no
23
errors and inaccurate information furnished to the CRAs. Shortly after receiving the letter from
24
Rosenstein Plaintiff began getting harassing phone calls from GMACM stating that her
25
mortgage payments were late. Plaintiff repeatedly explained to GMACM’s telephone
26 representative that she was current on her mortgage payments and requested that the employee
27 review her payment history and stop the harassing calls. The live calls stop, but then Plaintiff
28 began receiving systematic automated calls claiming she was late. Plaintiff again called

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GMACM asked them to remove her from the automated call system. The annoying calls finally
1
stopped.
2
Plaintiff assumed she would be able to refinance her property in November 2006 and
3
opened an escrow account with title officer, Denise Perrucci, who worked for Financial Title.
4
Mrs. Perrucci ordered the payoff demand and faxed Plaintiff a copy. The payoff demand
5
indicated that Plaintiff owed a late fee. Plaintiff and Mrs. Perrucci contacted GMACM via a
6 conference call to dispute the validity of the alleged late fee. Mrs. Perrucci asked which month
7 was the late fee owed because according to Plaintiff’s documents she is current. GMACM stated
8 it had reviewed the account and didn’t see any late fees and stated that until her new loan closes
9 she owed and would be charged a upfront late fee. Mrs. Perrucci stated to GMACM that they

10
could not charge a upfront late fee because the payoff demand instructions state that if the loan
closes after the 15th day of the month Plaintiff would be charged a daily per diem interest late fee
11
up to the time the loan closes. Mrs. Perrucci requested GMACM send her amended title
12
instructions with the unwarranted upfront late fee removed. GMACM refused to remove the late
13
fee. Plaintiff had INFO1 verify her mortgage with GMACM and she also ordered a copy of her
14
payment history from GMACM. Both of the requested documents indicated that the Plaintiff
15
had been current with all of her payments as of date during the time which GMACM had
16 serviced her loan. Plaintiff learned after sending letters to the CRAs in November 2006 that
17 GMACM had still not reported her mortgage in November 2006. Plaintiff then sent GMACM a
18 complaint letter attaching the responses she had received from the CRAs. GMACM responded
19 by letter dated December 3,2006 that stated it had reported her mortgage in December. Plaintiff

20
had her credit report pulled in December 2006 and learned that GMACM had reported to the
CRAs. She also learned that GMACM reported false, inaccurate, and misleading information to
21
the CRAs. After GMACM’s December reporting to the CRAs Plaintiff’s credit score dropped to
22
602. As a direct result of GMACM’s failure to timely report the Plaintiff’s excellent payment
23
history in October of 2006 Plaintiff’s credit was seriously impaired. Whereas; from the time
24
GMACM did not report to the time they finally did report the inaccurate mortgage payment
25
history her credit score dropped a total of 81 points.
26 MIT contributed to the demise of the Plaintiff’s credit reputation and the delay in her
27 refinancing by transferring her loan to a new servicer “America’s servicing company” directly
28 after GMACM’s inaccurate reporting in December 2006. MIT’s action compounded with

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GMACM‘s negligence caused Plaintiff to have to wait another 60 days before the new servicer
1
would report her mortgage history.
2
Plaintiff is a subscriber to a credit service company that monitors any activity on her
3
credit. Plaintiff received a alert on August 8, 2008 GMACM had accessed her credit, without her
4
written authorization and furnished additional inaccurate, false and misleading information to the
5
CRAs about her mortgage payment history. GMACM no longer serviced Plaintiff’s loan as of
6 December 2006 whereby accessing her credit without written authorization is a violation of the
7 consumer protection laws.
8
COUNT ONE
9 FALSE LIGHT
10
(Against all Defendant’s)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
11
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
12
Complaint, inclusive, as though fully set forth herein.
13

14 1. The Defendants furnished inaccurate information to the three major credit reporting
15 agency as follows: Trans Union, Experian and Equifax (“ hereinafter CRA”).

16 Defendants knowingly submitted false and inaccurate information which did not

17
reflect the Plaintiff’s true and factual mortgage credit history. Defendant’s knew or
should have known that their willful misrepresentation to the CRAs would have an
18
adverse effect on Plaintiff’s credit rating, destroy her ability to obtain credit, and also
19
would affect her ability to find gainful employment.
20

21 2. Defendants knew or should have known the detrimental effects such false information

22
being made available to the public would cause Plaintiff. Defendants presented Plaintiff
in a false light when they dissemination highly prejudicial, false, and inaccurate
23
information in a public forum. Defendants actions were negligent, and their refusal to
24
retract the lies they submitted to the CRAs show a callous indifference to the harm it
25
caused Plaintiff to experience. Plaintiff already possesses clear and convincing
26
evidence the Defendants knew the publication would create a false impression
27
regarding Plaintiff’s mortgage history and cause her irreparable harm.
28

COMPLAINT FOR DAMAGES - 6-


3. As a direct and proximate cause of the Defendants presenting the Plaintiff in a false
1
light Plaintiff has endure a great amount of physical pain and suffering, emotional
2
stress, and financial hardship. Plaintiff contends Defendants’ actions were so egregious
3
that a reasonable person subjected to the same circumstances would also be highly
4
offended by such conduct.
5
4. One of the basic principles of agency laws states that the principle becomes vicariously
6 liable for all acts of its agent. MIT failed to supervise or correct the errors and
7 misrepresentation of its agent, GMACM. Plaintiff, alleges MIT is culpable for
8 GMACM’s breach of the mortgage contract and therefore is liable for damages
9 incurred by Plaintiff as a direct and proximate cause of GMACM’ misrepresentations,

10
omissions, and negligence.

11

12 COUNT TWO
INTENTIONAL MISREPRESENTATION
13 (Against Defendant’s GMAC Mortgage and Debra Rosenstein)
14
Plaintiff re-alleges and reincorporates each and every allegation contained
15
in the General Allegations and all previous paragraphs of all previous sections
16
and Causes of Action in this Complaint, inclusive, as though fully set forth
17
herein.
18

19 5. Defendant, Debra Rosenstein (hereinafter “Rosenstein”), acting in her capacity as an


20 authorized agent and employee for GMACM sent a correspondence dated November 16,
21 2006 to Plaintiff which stated Plaintiff’s mortgage history would be reported to the
22 CRAs in November. Contrary to Rosenstein’s written statement, GMACM did not

23 report Plaintiff’s mortgage history to the CRAs during the month of November 2006.

24 6. Plaintiff alleges Rosenstein knew that the representation was false when she made it
25 and that she made the representation recklessly and without regard for its truth.
26 7. Plaintiff alleges Rosenstein intended Plaintiff to rely on the November 2006 written
27 statement made by the defendant. Plaintiff did rely on Rosenstein’s written statement.

28

COMPLAINT FOR DAMAGES - 7-


8. GMACM’s failure to report Plaintiff’s mortgage caused her credit score to drop which
1
in turn prevented her from refinancing in 2006. Plaintiff’s reliance on Defendant’s
2
representation was a substantial factor in causing her harm.
3

4
COUNT THREE
5
INTENTIONAL TORT OF CONCEALMENT AND DECEIT
6 (Against Defendant’s GMAC Mortgage and Debra Rosenstein)

7
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
8
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
9 Complaint, inclusive, as though fully set forth herein.
10

11 9. July 14, 2006 MIT and GMACM enter into a servicing contract which established a
12 fiduciary relationship between them. This contract, which upon information and belief,

13 was a pooling and servicing agreement, legally required GMAC to act at all times for

14
the sole benefit and interests of MIT.

15 10. Defendants were obligated by law to inform the Plaintiff that they had submitted
16 negative credit information about her to CRAs. Although the Defendants did not report
17 Plaintiff’s excellent mortgage payment history to the CRAs in October 2006, nor did

18 they report it the following month. It was not until December 2006 that the Defendants
finally reported Jones payment history. The December report contained serious lies
19
about the Plaintiff. Defendants’ December report stated: Plaintiff was having
20
difficulties making her mortgage payments; and Plaintiff had such severe financial
21
problems that she requested and agreed to enter into a forbearance agreement with the
22
Defendant’s.
23
11. Plaintiff states she had timely made all of her mortgage payments.
24 12. Plaintiff also states she never requested, authorized, nor contracted with Defendant for
25 a forbearance agreement.
26 13. By law the Defendants were required to notify Plaintiff if and when it submitted
27 negative credit information to CRAs. Defendants never notified Jones of their reporting

28 activities.

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14. Not only did Defendants failed to abide by the law; they also knowingly conceal their
1
wrongful acts by failing to inform Plaintiff of their ongoing practice of submitting, not
2
only negative information, but, also submitting information which was blatantly false
3
and deceptive. Plaintiff reasonably relied on Defendants statement that they report her
4
excellent payment history to the CRAs in December 2006.
5
15. As a direct and proximate cause of the Defendants submitting blatantly false, deceptive,
6 and inaccurate information and it intentional concealment of material facts, Plaintiff has
7 been ruined financially and her business and professional reputation have been
8 negatively affected..
9

10

11 COUNT FOUR
FALSE PROMISE
12
(Against Defendant’s GMAC Mortgage and Debra Rosenstein)
13
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
14
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
15
Complaint, inclusive, as though fully set forth herein.
16

17 16. Rosenstein made a promise to Plaintiff that GMAC would report Plaintiffs mortgage
18 history to the CRA’s in a letter dated November 16, 2006.
19
17. Rosenstein knew this promise was of critical importance to Plaintiff. Plaintiff informed
20
Rosenstein that she needed to refinance her home before the end of 2006 and that it was
21 imperative her credit history be reported to the CRAs immediately. Plaintiff explained
22 that this report would insure Plaintiff’s credit score increase high enough to refinance
23 her interest only mortgage into a lower interest rate and access her equity.
24 18. Defendants were made aware of the importance of keeping their promise to report

25 Plaintiff’s credit history. Defendants assured the Plaintiff that they would keep their
promise. Neither GMACM nor, its agent, Rosenstein, made good on their promise to
26
the Plaintiff.
27
19. Plaintiff believed and relied on the Defendants to keep their promise. Defendants
28
failure to report Plaintiff’s mortgage payment history, cause her true credit history to

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be unavailable to interested parties. Defendants failure to keep their promise caused
1
Plaintiff to suffer pecuniary damages when she could not access the equity in her home
2
which was approximately $86,000.00. Defendants interference with Plaintiff’s ability to
3
refinance her property resulted in Plaintiff having to forgo opportunities to obtain a loan
4
which had a lower interest rate and help her honor roll son finance his college
5
education. Defendants actions were a direct and approximate cause of harm to Plaintiff.
6

8
COUNT FIVE
9 NEGLIGENT MISREPRESENTATION
10
(Against Defendants GMAC Mortgage and Debra Rosenstein)

11 Plaintiff re-alleges and reincorporates each and every allegation contained in the
12 General Allegations and all previous paragraphs of all previous sections and Causes of

13 Action in this Complaint, inclusive, as though fully set forth herein.

14
20. Defendant, Rosenstein, sent Plaintiff a letter in November of 2006 which she stated
15
that Plaintiff’s mortgage history would be reported to the CRA’s. Contrary to
16
Rosenstein written statement Plaintiff’s mortgage payment history was not reported to
17
the CRAs in November 2006.
18
21. Plaintiff alleges Rosenstein knew that GMACM would not send Plaintiff’s mortgage
19
payment history to the CRAs as this would violate its fiduciary responsibility to MIT
20
by assisting the Plaintiff in refinancing and becoming someone else’s customer.
21
22. Plaintiff who was unaware, that GMACM, as the servicer of her mortgage, was
22
obligated to protect the interests of its principle MIT.
23
23. Plaintiff alleges that Defendants negligently misrepresented what actions it would take
24 regarding the reporting of Plaintiff’s mortgage payment history. To her detriment
25 Plaintiff relied on Defendants’ negligent misrepresentation and was harmed by
26 Defendants’ actions.
27 24. Defendants’ negligent misrepresentation was a substantial factor in causing harm to her

28 credit score to drop and prevent her from refinancing in 2006.

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1

5
COUNT SIX
6 VIOLATION OF THE FAIR CREDIT REPORTING ACT (15 USC§1681i)
(Against all Defendant’s)
7 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
8 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
9 Complaint, inclusive, as though fully set forth herein.

10
25. Plaintiff is a consumer within the meaning of 15 USC §1692a(3). A
11
“consumer report” is a written, oral, or other communication of any information to a
12
consumer reporting agency bearing on a consumer's credit worthiness, credit standing,
13 credit capacity, character, general reputation, personal characteristics, or mode of
14 living which is used or expected to be used or collected in whole or in part for the
15 purpose of serving as a factor in establishing the consumer's eligibility for the
16 extension of credit and employment purposes.

17
26. What constitutes a consumer report covers more than just credit information,
as indicated by the phrase "any information." Reports regarding driving records,
18
criminal history, educational background, professional certifications, and similar
19
matters also are considered consumer reports.
20
27. A consumer reporting agency includes in its public reports more than credit
21
history reporting as well as other credit worthy information. Private investigators and
22
persons and agencies that perform employee background checks qualify as well.
23

24
Requirement For Furnishers To Update Records:

25
28. Defendant is a corporation who regularly furnishes information to the CRAs. Under
26 the Fair Credit Reporting Act (“hereinafter FCRA”), 15 USC §1681s-2. Furnishers
27 must change records, delete records, or permanently block reported information that is
28 found to be inaccurate or incomplete. Defendants violated 15 USC §1681 by refusing to

COMPLAINT FOR DAMAGES - 11-


correct the reporting errors it submitted to the CRAs even after the Plaintiff brought the
1
errors to Defendants attention.
2
29. Defendant’s failed to report Plaintiffs mortgage history in October 2006 to the CRA’s
3
even though they are required to do so after having serviced her loan for 60 days.
4
Plaintiff sent GMACM a Qualified Written Request letter dated November 20, 2006
5
informing the Defendant that it had failed to report her mortgage payment history to the
6 CRAs. Plaintiff did not receive a response from GMACM until after she lodged a
7 complaint with the Department of Corporations.
8 30. In response to the complaint, Defendants sent Plaintiff a notice which stated GMACM
9 would report to the CRAs Plaintiff’s mortgage payment history in November 2006.

10
31. Plaintiff sent the CRAs letters to check if the reporting promised was done as well as
requesting the CRAs to report her mortgage as a new account. Plaintiff received
11
responses from the CRAs stating that the Defendants are subscribers and furnishers of
12
information and that the Defendants had not reported Plaintiff’s mortgage history in
13
November 2006.
14
32. Plaintiff sent Defendants a certified letter of complaint dated November 30, 2006 and
15
attached copies of the correspondences she received from the CRAs stating that
16 Defendant’s never submitted Plaintiff’s mortgage payment history in November 2006.
17 33. In December 2006 Defendant’s willfully and maliciously with the intent to further
18 harmed Plaintiff’s credit by manufacturing false information and reporting inaccurate
19 data to the CRAs. Defendants submitted the mortgage history payment report knowing

20
it was nothing more the a composite of lies and other erroneous data.
34. For example, GMACM reported Plaintiff was struggling to make her mortgage
21
payments and had requested and was granted a forbearance agreement. This
22
information was categorically false.
23
35. Instead of retracting and removing the inaccurate furnished in the December 2006
24
report, GMACM elected to violate the law by failing to comply with the requirements
25
imposed under FCRA, including but not limited to, failing to follow reasonable
26 procedures to assure maximum possible accuracy of the information reported to the
27 CRA’s regarding Plaintiff’s mortgage history.
28

COMPLAINT FOR DAMAGES - 12-


36. Defendant’s furnished information in December of 2006 to Trans Union which stated
1
that Plaintiff’s loan amount had increased and that the increase consisted of her current
2
mortgage payment of $2,049.33 with an additional per diem interest late fee of $67.40,
3
both amounts were added to the back end of Plaintiff’s original five years interest only
4
loan. The original amount was $371,200. By GMACM increasing her loan amount to
5
$373,317 it directly interfered and changed the terms of the original contract Plaintiff
6 had with MIT for a loan amount of $371,200 fixed for five (5) years.
7 37. Defendant’s also falsely reported in December 2006 to Experian and Equifax that
8 the account was in dispute and closed causing her mortgage history not to be rated and
9 included as part of her credit score. Defendant’s action caused the Plaintiff’s credit

10
score to deteriorate even further and resulted in the Plaintiff being unable to obtain
credit.
11
38. Defendant’s transferred the servicing rights to Plaintiff’s loan to Americas Servicing
12
Company in December 2006. Unbeknownst to the Plaintiff, after transferring the
13
servicing right GMACM continued to report negative credit information about the
14
Plaintiff’s to the CRAs.
15
39. Defendant’s continued to harm Plaintiff by accessing her credit without her knowledge
16 and consent. Consumer law prohibits GMACM or any for that matter from accessing
17 Plaintiff’s credit report without her prior written consent. Even after GMACM was no
18 longer the servicing company for her loan it continued to illegally invaded Plaintiff’s
19 privacy by accessing her credit. The Defendant continued to harm Plaintiff’s credit

20
reputation by continuously reporting negative and false information after it no longer
serviced her loan.
21

22
40. Defendant’s are furnishers of credit information to the CRA’s and are required by law
23 to notify Plaintiff when negative information they have submitted to the CRAs has
24 been placed on Plaintiff’s credit report. In violation of consumer credit laws GMACM
25 reported false and inaccurate information concerning Plaintiff in December 2006 and
26 August 2008 and failed to notify Plaintiff that they had taken such action. Defendant’s

27
action deprived Plaintiff of the opportunity to dispute the veracity of the information
submitted, object to its inclusion on her credit report, to take whatever actions
28

COMPLAINT FOR DAMAGES - 13-


necessary to protect her credit history and preserve her reputation as an honest person
1
who paid her debts.1
2

3
41. The Fair Isaac credit scoring model is used in the credit reporting industry to generate
4
a consumer credit scores based on information obtain about a consumer. Scores are
5 determined by different factors which are calculated as percentages. Defendant’s
6 negatively impacted Plaintiff’s credit score in the following areas: 35% for payment
7 history, 30% for Capacity, and 15% for length of credit history which when totaled and
8 accounts for 80% of Plaintiff’s credit score.

9
42. As a result of Defendant’s violations of the FCRA, Plaintiff has been denied credit and
employment opportunities. Her personal and business reputations have been severely
10
tarnished. Having been terrorized by the Defendants relentless campaign to deprive her
11
of home and decimate her financial well being Plaintiff has experienced and continues
12
to experience extreme anguish, panic attacks, emotional stress, depression, anxiety,
13
fear, embarrassment, frustration, and humiliation. Plaintiff has also been hospitalized
14
for acute chest pains . Defendants were a direct and proximate cause of harm to the
15 Plaintiff.
16

17

18 COUNT SEVEN
VIOLATION OF THE TRUTH AND LENDING ACT
19 (“TILA”)
(Against all Defendant’s)
20
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
21
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
22 Complaint, inclusive, as though fully set forth herein.
23

24 Daily Interest When Payments Are Made After Due Date.


25

26 11
Study Of Information Sharing: Federal statues require federal financial services and the FTC to study the
following: the purposes for which affiliate sharing information is used; the types of information shared with
27 affiliates; choices provided to consumers regarding control of sharing and the degree to which consumers use
options; if information is used for employment or hiring, or for general publication of such information; and the
28 information sharing practices that financial institutions and other creditors and users of consumer reports
employ for purposes of credit underwriting or evaluation

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43. Most mortgage loans have grace periods, during which a borrower may make the
1
monthly payment after the due date without incurring a late charge. The late charges are
2
assessed as a percentage of the monthly mortgage payment.
3
44. While it may be proper for a lender to charge daily interest late fee when the loan
4
so provides on the payoff demand, however, it is deceptive for a lender to charge a late
5
fee as well as daily interest late fee before the 15 day grace period expires.
6 45. The Defendant’s violated TILA by deceptively charging a upfront late fee on the
7 November 2006 payoff demand prior to the 15 day grace period. The Defendant’s were
8 prohibited by TILA from charging an unauthorized upfront late fee prior to the expiration
9 of the 15 day grace period or attempting to collect the unauthorized fee. Defendant’s are

10
only allowed to charge a daily interest late fee if the new loan closes after the 15th day of
the month and each day thereafter.
11
46. Plaintiff signed her original loan documents in April 2006. The loan agreement
12
stipulated that Plaintiff mortgage payment is due the first day of each month. The
13
agreement also states that if the Plaintiff fails to pay her mortgage installment by the 15 th
14
day of the month she becomes obligated to pay a 6% late fee after the 15th day of the
15
grace period. Defendants erroneously accessed plaintiff’s account a late fee of $122.95
16 on November 6, 2006.
17 47. Denise Perricci, who is a title officer with Financial Title, made numerous phone
18 calls on the Plaintiff’s behalf requesting Defendants to send her amended title instructions
19 to remove the unauthorized late fee of $122.95. Defendants refused to send her amended

20 title instructions which would have allowed for the deletion of the unauthorized late
charge Plaintiff did not owe.
21
48. As a result of Defendants violating TILA by refusing to correct its accounting error.
22
Plaintiff became concerned as to the Defendants honesty and ability to correctly
23
account for and administer her mortgage. Plaintiff was caused to suffer worry, fear,
24
distress, frustration, and mental anguish and hospitalization for chest pains all to her
25
damages in the amount to be determined by the jury. Defendant’s were a direct and
26 proximate cause of harm to Plaintiff .
27
COUNT EIGHT
28
VIOLATION OF RESPA

COMPLAINT FOR DAMAGES - 15-


(Against all Defendant’s)
1
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
2
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
3 Complaint, inclusive, as though fully set forth herein.
4 49. On July 14, 2006 GMAC Mortgage LLC was the servicer of Plaintiff’s mortgage and
5 was required to adhere to and comply with 12 U.S.C.§2605 (RESPA). GMAC

6 Mortgage LLC failed to comply with the RESPA requirements.

7
50. Plaintiff sent GMAC mortgage LLC three certified qualified written request
(hereinafter “QWR”) dated November 20, 26, 30 of 2006 regarding its failure to report
8
Plaintiff’s mortgage to the CRA’s after it had been the servicer for 60 days. Plaintiff’s
9
QWRs asked the Defendant to report her mortgage and remove the wrongfully
10
charged late fee from the payoff statement.
11
51. GMAC mortgage violated 12 U.S.C.§2605 by not acknowledging receipt of Plaintiff’s
12
written requests within 20 days as required by RESPA. GMAC also violated section 6
13 of RESPA when it failed to investigate issues raised in Plaintiff ‘s QWRs and provide
14 her with a written report within the 60 days as required by RESPA.
15 52. GMAC mortgage LLC was prohibited under RESPA from reporting any negative

16 or inaccurate information during the 60 day investigation period. Specifically GMAC

17 Mortgage LLC violated 12 U.S.C.§2605(e)(I)(A);(1)(c);(c)(2);(e)(2);(e)(3); As a result


of the above violations, Plaintiff has been damaged and is entitled to damages and costs
18
pursuant to 12U.S.C.§2605(f). Defendants actions were the direct and proximate cause
19
of harm to the Plaintiff.
20

21
COUNT NINE
22 NEGLIGENT NONDISCLOSURE BY FIDUCIARY
(Against All Defendant’s )
23 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
24 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
25 Complaint, inclusive, as though fully set forth herein.
26

27 53. A fiduciary relationship existed between the Plaintiff and the Defendant’s that required
the highest good faith and the undivided service and loyalty. Defendant’s possessed
28

COMPLAINT FOR DAMAGES - 16-


information material to Plaintiff’s interest. Defendant knew or should have known that
1
the false information furnished to the CRAs was of material interest to Plaintiff ability
2
to refinance in 2006.
3
54. Defendant’s failed to disclose this material information to Plaintiff and concealed the
4
fact they intended to report false and negative information to the CRAs about Plaintiff’s
5
mortgage history. This nondisclosure caused Plaintiff to suffer injury, damage, loss and
6 harm. Defendants concealment of material facts was a direct and proximate cause of
7 harm to the Plaintiff.
8

9 COUNT TEN
NEGLIGENT INFLICTION OF EMOTION DISTRESS
10 (Against all Defendant’s)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
11
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
12
Complaint, inclusive, as though fully set forth herein.
13

14
55. Defendant’s were all negligent in the handling and servicing of her loan. Defendant’s
15
erroneously claimed Plaintiff failed to timely pay her mortgage. Defendants’ own
16 accounting records clearly shows that Plaintiff was not delinquent on her mortgage
17 obligation.
18 56. Instead of correcting its error and simply apologizing to the Plaintiff the Defendants
19 chose to compound their negligence by: 1) refusing to remove the late charge fee; 2)

20
and ignoring Plaintiff’s request that her credit history be reported to the CRAs until she
officially filed a complaint with the Department of Corporation.
21
57. In furnishing inaccurate information to the CRA’s a sharply cascading tier effect
22
resulted which caused Plaintiff to be denied employment; defend against a wrongful
23
and fraudulent foreclosure action, the needlessly filing for Chapter 7 and Chapter 13
24
bankruptcy protection to avoid the unwarranted and illegal forfeiture of her home.
25
58. The Defendant’s conduct was outrageous. Plaintiff has been and continues to be
26 terrorized by the Defendant’s complicity and duplicity in committing fraud, failure to
27 disclose material facts and deceptive actions. As a direct and proximate cause of
28 Defendant’s unwarranted acts. Plaintiff has suffered mental anguish, severe emotional

COMPLAINT FOR DAMAGES - 17-


distress, fright, horror, nervousness, grief, panic attacks, depression, anxiety, worry,
1
shock, humiliation and shame.
2
59. Plaintiff had to be hospitalized on numerous occasions for chest pains and other heart
3
attack like symptoms. The Defendant’s actions caused such turmoil in Plaintiff’s life
4
that her treating physician prescribed medication to help her emotionally and physically
5
contend with the horrific stress that Defendant’s actions were causing her. Plaintiff
6 suffered emotional distress that a reasonable person would be unable to cope with in
7 the same circumstances. Defendant’s negligence was a substantial factor in causing
8 Plaintiff serious emotional distress.
9

10
COUNT ELEVEN
DEFENDANT’S ARE ESTOPPED FROM ASSERTING STATUE OF LIMITATIONS
11 DEFESNSE
(Against all Defendant’s)
12
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
13 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
14 Complaint, inclusive, as though fully set forth herein.
15

16 60. In response to a settle demand in April of 2008. GMACM’s attorney advised Plaintiff

17
she was not allowed to file her suit in the federal district court. Plaintiff relied on
Defendant’s advice and therefore did not timely exercise her right to file a lawsuit to
18
protect her federal causes of actions.
19
61. Plaintiff did not discover until after the statute of limitation had expired that the
20
Defendant’s attorney had intentionally deceived her by advising her incorrectly about
21
her legal right to proceed in federal district court.
22
62. Plaintiff contends that the statute of limitation should be tolled because the Defendant’s
23 lawyer acted in bad faith when he misinformed Plaintiff, who is a lay person. Plaintiff
24 ask that the Court take under consideration that once plaintiff became aware of her
25 rights she expeditiously proceeded to file this instant action. Defendants’ behavior
26 which was unethical and unconscionable was direct and proximate cause of harm to

27
the Plaintiff.

28

COMPLAINT FOR DAMAGES - 18-


1

4
COUNT TWEVELE
PROFESSIONAL NEGLIGENCE
5 (Against Defendant MIT)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
6
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
7
Complaint, inclusive, as though fully set forth herein.
8

9
63. The Defendant had a legal duty to conform to a standard duty of conduct as all other
10 lenders practicing in the same profession. The Defendant’s is a Mortgage Lender that
11 performs professional services for consumers.
12 64. The Defendant, MIT owed the Plaintiff the duty of reporting her mortgage history

13 to the CRAs after its agent GMACM failed to do so. Defendant’s transferred the

14
servicing rights of Plaintiff’s first loan on July 14, 2006 to GMACM. as the owner and
holder of plaintiff note, MIT still was responsible and held control of Plaintiff’s
15
mortgage and note. Defendant failed to conform to the standard duty of conduct that all
16
other lenders practicing in the same profession adhere to when reporting residential
17
mortgage history to the CRA’s after 60 days of servicing following the transfer of
18
servicing rights.
19
65. SPS formally known as (Fairbanks Capital Corporation) is a professional mortgage
20 servicing company that practices in the same profession and capacity as GMACM in
21 servicing residential loans that are transferred to them. MIT transferred the servicing
22 rights of Plaintiff’s second mortgage to SPS on July 3, 2006. Following 60 days of
23 servicing after the transfer of Plaintiff’s loan, SPS reported Plaintiff’s mortgage history

24 to the CRA’s in October of 2006.


66. MIT transferred the servicing rights of Plaintiff’s first loan to the GMACM on July
25
14, 2006. Following 60 days of servicing after the transfer of Plaintiff’s loan
26
GMACM failed to report Plaintiff’s loan to the CRAs. The MIT then transferred the
27
servicing rights of Plaintiff’s first loan away from GMACM in December of 2006 to
28
America’s Servicing Company. Following 60 days of servicing after the transfer of

COMPLAINT FOR DAMAGES - 19-


Plaintiff’s loan, American Servicing Company reported Plaintiff’s mortgage history to
1
the CRA’s in February 2007.
2
67. All Lenders and Banks practicing in the same profession as the Defendant’s that service
3
newly transferred residential loans conform to the same practice and protocol of
4
reporting a consumer’s residential mortgage history to the CRA’s after 60 days of
5
servicing following a transfer of servicing rights.
6 68. MIT and its agent GMACM failed to conform to this standard of conduct by not
7 reporting Plaintiff’s mortgage history to the CRA’s after 60 days of servicing Plaintiff’s
8 loan following the transfer of servicing rights. The Defendant’s failure was the
9 proximate and legal cause of injury and damages to Plaintiffs credit.

10

11 COUNT THIRTEEN
BREACH OF CONTRACT
12
(Against MIT)
13 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
14
Complaint, inclusive, as though fully set forth herein.
15

16
69. Plaintiff and Defendant’s entered into a mortgage contract on April 21, 2006. Plaintiff
17
fulfilled her obligations pursuant to the mortgage contract. GMACM as servicer of the
18
loan breached the mortgage agreement by charging the Plaintiff an unwarranted late
19 fee. MIT was the principle who had a duty to oversee the acts and omissions of its
20 servicing agent GMACM. MIT clearly stated that although the loan servicing rights had
21 been transferred to its agent GMACM, all the original terms of the mortgage contract
22 would remain the same.

23 70. GMACM breach the contract when it charged the Plaintiff a late fee before the

24
expiration of the 15 day grace period. MIT allowed GMACM to breach the contract a
second time when it increased the principle amount of the loan from $371,200 to
25
$373,317 and then report the increased amount to the CRA’s without notifying the
26
Plaintiff that the terms of her contract had changed. Defendant’s also failed to
27
accurately report Plaintiff’s payment history, did not notify the Plaintiff that it had
28
submitted inaccurate and false information to the CRAs and refused to correct or

COMPLAINT FOR DAMAGES - 20-


retract its credit reporting errors. MIT failed to oversee agent GMACM servicing
1
practices and correct GMACM’s negligent acts.
2
71. This failure was a dereliction of it duty to service, or, insure that it agent properly
3
serviced Plaintiffs loan. Plaintiff alleges that Defendants breach of the mortgage
4
contract caused Plaintiff irreparable harm for which she should be compensated and for
5
which the Defendants should be punished. Defendant’s breach of the terms of the
6 original mortgage agreement was the direct and approximate cause of harm to Plaintiff.
7

8
COUNT FOURTEEN
9 BREACH OF THE IMPLIED COVENT OF GOOD FAITH AND FAIR DEALING
(Against MIT)
10 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
11 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
12 Complaint, inclusive, as though fully set forth herein.

13 72. The written contract between Plaintiff and MIT is subject to the principle of a Implied
Covenant of Good Faith and Fair Dealing which is inherent in all contracts and loan
14
agreements entered into in California. A lender has a duty to exercise discretion in
15
good faith within the standard of fair dealings. (section 36:17,§1:6(the Implied
16
Covenant of Good Faith and Fair Dealing).
17
73. The Defendant’s breached the implied covenant of good faith and fair dealings as
18
follows: 1) November 2006 MIT allowed its agent GMACM to improperly charge
19 Plaintiff a late fee and then refused to remove the late fee after Plaintiff disputed the
20 charges; 2) MIT failed to monitor GMACM servicing practice who failed to report
21 Plaintiff’s mortgage history to the CRAs after 60 days of servicing 3) MIT allowed its
22 agent GMACM to change the terms of the contract by increasing the original loan

23 amount of $371,200 by $2117.00 as reported to the CRAs and by adding that amount

24
to the back end of Plaintiffs loan amount increasing the loan amount to $373,317.
Plaintiff’s loan and contract agreement with MIT was not a for a pay option arm loan
25
in which the interest only monthly payments are added to the back end of the loan to
26
increased the principle loan amount. Plaintiff’s loan was a five (5) fixed interest only
27
loan in which the principle loan would remain the same and fixed for the term of five
28
(5) years.

COMPLAINT FOR DAMAGES - 21-


74. Plaintiff’s was not behind in any of her mortgage payments and did not need or request
1
a forbearance agreement. Plaintiff did not renegotiate the terms of the April 2006
2
mortgage contract with MIT nor its agent GMACM, she did not agree to refinance or
3
otherwise increase the original loan amount to $371,200.
4
75. Plaintiff alleges that the MIT and GMACM breached the mortgage contract by
5
unilaterally changing the contract terms of amount owed by Plaintiff. The Defendant’s
6 agent GMACM unfairly interfered with Plaintiff’s right to receive the benefits of the
7 contract. As a result of the breach of the Implied Covenant of Good Faith and Fair
8 Dealing as set forth above, Plaintiff has been damaged and seeks any and all
9 compensation to which she is entitled as Defendants’ actions resulted in the direct and

10
proximate cause of harm to Plaintiff.

11
COUNT FIFTEEN
12 VIOLATION OF THE BUSINESS AND PROFESSIONS CODE 17200
(Against all Defendant’s)
13 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
14 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
15 Complaint, inclusive, as though fully set forth herein.
16

17
76. The actions of the Defendants, which is described above constitutes an is incorporated
herein by reference, are unfair business and consumer practices that violates California
18
Business and Professions Code §17200. which specifically states the above practices
19
are prohibited.
20
77. As a result of Defendants violating §17200, Plaintiff has suffered damage to her credit
21
and suffered tremendously emotionally and physically distress. Plaintiff seeks all
22
monetary relief to which she is entitled.
23 78. Further, Plaintiff seeks injunctive relief in the form of a permanent injunction
24 prohibiting GMACM or MIT from terrorizing and threatening the Plaintiff credit by
25 violating the California Consumer Protection Statutes. Defendant’s are the direct and
26 proximate of harm to Plaintiff. Plaintiff’s seeks all damages.

27

28

COMPLAINT FOR DAMAGES - 22-


1

2
COUNT SIXTEEN
3 VIOLATION OF CIVIL CODE 1750 LEGAL REMEDIES ACT
(Against all Defendant’s)
4
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
5
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
6 Complaint, inclusive, as though fully set forth herein.
7

8 79. The California Consumer Legal Remedies Act(“CLRA”) is set forth in Civil
9 Code§1750. The CLRA was promulgated to protect consumers from deceptive and

10
dishonest practices by venders and providers of business services in California.

11 80. The conduct of GMACM as set forth herein violates §1770(A)(5)and(7). Defendant
12 represented it possessed the skills and knowledge necessary to service the Plaintiff
13 mortgage.
14
81. GMACM’s policies and practice are substandard and do not meet the minimum
15
industry standards of quality for servicing residential mortgages. GMACM’s policies
16 do not comply with the applicable State and Federal Statues governing mortgage
17 transfers and loan servicing. Nor does GMACM comply with state laws governing the
18 protection of consumer credit rights.
19
82. Based on Defendant’s violation of the CLRA, Plaintiff has been damage and seeks all
20
statutory damages provided under Civil Code§1780 including actual damages, punitive
21 damages and all other relief as the Court deems proper.
22
83. Defendants ineptitude and negligence is particularly repugnant and egregious in that
23
GMACM actions were fraudulent, oppressive, malicious, and was done with the intent
24
to harm Plaintiff.
25
84. Defendants actions cause Plaintiff significant harm affecting many aspects of her life.
26
Defendants effectively ruined her credit, destroyed her reputation, caused her physical
27
pain and suffering, and overwhelming mental anguish. Defendants prevented Plaintiff
28
from refinancing her home in 2006 and cause her to lose thousands of dollars in equity.

COMPLAINT FOR DAMAGES - 23-


The misrepresentations made in the credit payment history the Defendants filed with
1
the CRAs caused Plaintiff to be unable to secure gainful employment with any banking,
2
lending and non-lending institution that pulls credit and uses it as hiring criteria for
3
employment.
4

5
85. Plaintiff alleges that Defendant’s illegal actions, unethical behavior, and callous attitude
inflicted a tremendous amount of harm and hardship on Plaintiff. Defendants actions
6
have gone beyond the pale and should be considered worthy of not only the award
7
actual and compensatory damages, but, also punitive and exemplary damages.
8
Defendant’s actions were the direct and proximate cause of harm to Plaintiff.
9

10

11 COUNT SEVENTEEN
FAILURE TO USE RESONABLE CARE
12 (Against all Defendant’s)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
13
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
14
Complaint, inclusive, as though fully set forth herein.
15

16
86. Plaintiff contends she was harmed by MIT’s failure to use reasonable care when hiring
17
a loan servicing company to administer her loan. MIT’s decision to employ GMACM
18 to service Plaintiff loan shows its lack of due diligence in investigating GMACM to
19 determine if GMACM was of good reputation, honest, experienced and skilled in
20 properly service mortgage loans.

21 87. Plaintiff contends that if MIT had conducted even the most very basic investigation of

22
GMACM it would have discovered that hundreds, if not thousands, of consumer
complaints had been filed against GMACM for its negligent servicing practices.
23
88. MIT had a fiduciary duty to act in good faith and to deal fairly with the Plaintiff, which
24
included, not hiring a loan servicing company which had a dismal public record of
25
mishandling and mistreating mortgagors. Plaintiff also alleges MIT failed to use
26
reasonable care in carrying out it fiduciary duty when it hired an incompetent and inept
27
servicing company as its agent and then failed to supervise and intervene when its agent
28 failed and/or refuse to abide by the terms of the mortgage contract. Surely, MIT

COMPLAINT FOR DAMAGES - 24-


received monthly servicing reports from GMACM and could have readily determined
1
that there were discrepancies with regard to Plaintiff’s mortgage account.
2
89. GMACM was employed by MIT and was under contract to service Plaintiffs mortgage
3
loan. Pursuant to the service agreement GMACM acted on behalf of MIT. As its agent
4
GMACM was to collect monthly mortgage payments and generate monthly servicing
5
reports. GMACM was also required to accurately report mortgage history payments to
6 the CRAs.
7 90. Under the laws of agency, plaintiff believes MIT is vicariously liable for the wrongful
8 acts of GMACM. GMACM failed to act and use reasonable care while servicing
9 Plaintiff’s loan MIT as the principal, and GMACM acting as MIT’s agent engaged in

10
conduct which was a substantial factor in causing harm to Plaintiff.

11
COUNT EIGHTEEN
12
DEFAMATION OF CHARACTER
13 (Against all Defendant’s)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
14
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
15
Complaint, inclusive, as though fully set forth herein.
16 91. The Defendant’s engaged in furnishing the CRA’s with false and inaccurate statements
17 about Plaintiffs mortgage payment history knowing the information would be available
18 for public view. Defendant’s clearly understood that furnishing wrongful information
19 about Plaintiff’s mortgage history would be view as a negative reflection of Plaintiffs

20
mortgage history.
92. Plaintiff alleges that Defendants knew or should have known that Plaintiff would be
21
harmed by the publication of false and inaccurate information as such negligent
22
behavior would effectively deny anyone accessing Plaintiff’s credit history a true and
23
accurate depiction of Plaintiff financial history and current financial status.
24
93. Plaintiff has in fact been harmed by Defendant negligence and has suffered harm to her
25
property, business, profession and occupation causing her to suffer shame,
26 embarrassment, mortification and rejection by her friends and community. The
27 statements made by Defendant’s was a substantial factor in causing Plaintiff harm.
28

COMPLAINT FOR DAMAGES - 25-


Plaintiff alleges the Defendants intentionally defamed her good name and character
1
and she be compensated accordingly.
2

3 COUNT NINETEEN
SPECIAL DOCTINE OF RES ISPA LOAUITUR
4
(Against all Defendant’s)
5 Plaintiff re-alleges and reincorporates each and every allegation contained in the General

6 Allegations and all previous paragraphs of all previous sections and Causes of Action in this

7
Complaint, inclusive, as though fully set forth herein.

8
94. Plaintiff’s harm ordinarily would not have happened unless someone was negligent.
9
The non-reporting and then the inaccurate reporting to the CRA’s was the cause of
10
great harm to the Plaintiff that was under the exclusive control of the MIT at the time
11
of the negligent act.
12
95. Plaintiff’s actions did not cause or contribute to the events that happened to Plaintiff.
13 The Defendant’s negligence was the cause-in-fact of the harm, as well as, the
14 proximate cause of the harm to Plaintiff.
15

16 COUNT TWENTY
17
VIOLATION OF THE ROSENTHAL ACT
VIOLATION OT CAL. CIV. CODE SEC. 1788
18 (Against all Defendants)
Plaintiff re-alleges and reincorporates each and every allegation contained in the General
19
Allegations and all previous paragraphs of all previous sections and Causes of Action in this
20
Complaint, inclusive, as though fully set forth herein.
21

22
96. The Defendant’s violated California statues governing debt collection practices, the
23 Rosenthal Act and Cal. Civ. Code, section 1788. Defendant’s sent false
24 communication to financial title indicating that Plaintiff owed a late. Defendant’s did
25 not disclose on the November 2006 pay off demand sent to financial title the month
26 the late fee was owed, nor, did they ever send Plaintiff any collection letters

27
demanding payment of the alleged late fee. The title officer “Denise Perrucci” notified
Defendant’s of error and requested they remove the erroneous late fee and send her
28

COMPLAINT FOR DAMAGES - 26-


new title instructions with the removal of the late fee. Defendant’s refused to send her
1
new title instructions deleting the unjustified late fee.
2

3 97. Plaintiff ordered a supplemental credit report through Land America INFO1 credit to
4 verify Plaintiff’s mortgage history. Land America INFO1 verified Plaintiff’s mortgage

5
with Defendant’s employee named “Manny”. Manny verified there were no late fees
on Plaintiffs account. Plaintiff also ordered a accounting of her payment history from
6
Defendant. The accounting record verified that there were NO record of any late fees
7
posted on the account. After Defendant’s were notified by the Department of
8
Corporation of Plaintiff’s complaint of the erroneous late fee and warned about
9
mishandling of her account, Plaintiff received hourly harassing phones calls from the
10
Defendant daily stating her mortgage was late.
11
98. The Rosenthal Act was enacted to prohibit debt collectors such as the Defendant’s from
12
engaging in unfair deceptive acts or practices in the collection of a debt. The Act states
13
that debt collectors must comply with Chapter 15 of the United States Code sections
14
1692(b) -1692(j) and subject to the remedies prescribed in Chapter 15 of the United
15
States Code sections 1692(k) and Cal. Civ. Code, section 1788.17. The statue prohibits
16 actions such as false communications, threats or harassment in the collection of a debt.
17
99. Defendant’s conduct was a substantial factor in causing Plaintiff harm. Plaintiff
18
suffered worry, fear, distress, mental anguish, frustration. Plaintiff is entitled to
19
statutory and punitive damages in the amount to be determined by the jury. Plaintiff is
20
entitled to attorney’s fees. Defendants actions and conduct were a direct and proximate
21 cause of harm to the Plaintiff.
22

23
COUNT TWENTY-ONE
24 INDUCING BREACH OF CONTRACT
(Against Defendant GMACM)
25 Plaintiff re-alleges and reincorporates each and every allegation contained in the General
26 Allegations and all previous paragraphs of all previous sections and Causes of Action in this
27 Complaint, inclusive, as though fully set forth herein.

28

COMPLAINT FOR DAMAGES - 27-


100. A valid contract existed between Plaintiff and MIT as of April of 2006. Defendant
1
GMACM knew of the existence of this contract. GMACM intentionally engaged in
2
acts and conduct which induced MIT to breach the contract with Plaintiff.
3

4 101. GMACM intended to induce a breach of such contract between MIT and the

5
Plaintiff. The contract was in fact breached by MIT. The acts and conduct of the
Defendant which induced the breach caused damage to the Plaintiff. Defendant’s
6
action were a direct and proximate cause of harm to the Plaintiff.
7

8 PRAYER FOR RELIEF

10
WHEREFORE, Plaintiff prays for relief on all counts against all Defendant’s as
follows:
11
(a) For all compensatory, consequential, special, actual, incidental, statutory and general
12
damages according to proof at trial.
13

14 (b) GMACM submission of a permanent letter of deletion to the CRAs which would instruct

15
the CRAs to delete all reports made by GMACM from Plaintiff credit file as well as
remitting Plaintiff a copy of the deletion letter.
16

17 (c) Permanent injunctive relief prohibiting GMACM from reporting inaccurate and negative
18 information to Plaintiffs credit report.

19
(d) Post judgment and prejudgment interest as allowed by law.
20
(e) For attorneys fees under Code of Civil Procedure §1021.5 and any other applicable
21
statute and case law. All out of pocket attorneys fees incurred to date.
22

23 (f) For all other relief that the Court deems just and proper.

24
(g) Demand for Jury trial.
25
(h) For cost of suit.
26

27 Dated this 5th day of January, 2009

28 Respectfully submitted by:

COMPLAINT FOR DAMAGES - 28-


__________________________________
1
Sylvia Jones, Pro Se
2
P.O. Box 6043
3 Santa Clara, CA 95056
Ph: 408-310-2621
4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR DAMAGES - 29-