UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLO RIDA

WEST PAL M BEA CH DIVISION

Case No: 17-cv-80728-MIDDLEBROOKS/BRANNON

LAURENCE SCHNEIDER,

Plaintiff,

vs.

FIRST AMERICAN BAN K, as

successor by merger to Bank of Coral Gables, LLC

Defendant.

FIRST AMENDED COMPLAINT

Pursu ant to Fed. R. Civ. P. 15 and L.R. 7.1 (c), Plaintiff

Laure nce Schneider (hereinafter
referred to as "Plai ntiff" ) hereby submits this amended Comp
laint in respo nse to Defendant First
American Bank 's (hereinafter referred to as "FAB") Motio
n to Dismiss Complaint, pursuant to
Fed. R. Civ. P. 12(b) (DE 25):

NATURE OF THIS ACTION

This action arises out of Defendant' s failure to properly

service Plain tiff's mortgage loan
in a manner consistent with its legal obligations under: (a)
the Real Estate Settle ment Procedures
Act (hereinafter referred to as "RES PA") , 12 U.S.C.
§§ 2605; (b) the Truth in Lending Act
(hereinafter referred to as "TIL A"), 15 U.S.C. § 1601 et
seq.; (c) the Home Equit y Line of Credit
(hereinafter referred to as "HEL OC") , and (d) the
resulting defamation to Plain tiff from

"A-15"
 Defen dant's violations of the above. Pursu ant to this action
, Plaint iff seeks to obtain mone tary
civil penalties, a perma nent injunction, restitution, disgorgemen
t, monetary damages, and other
equitable relief for Defen dant's violations of the afores
aid Acts, breach of contract, and
defamation.

JURISDICTION AND VENUE

1. This Court has subjec t matte r jurisd iction over this action
because it is broug ht
under Federal consu mer financial law, 12 U.S.C. § 5565( a)(I),
as well as it presents a federa l
question pursuant to 28 U.S.C. § 133 1.

2. This Court has diversity jurisd iction pursu ant to 28 U .S.C. §

l 332(a ) as the amou nt
in issue in this action excee ds $75,0 00, exclus ive of intere
st, costs, and attorneys' fees, and is
between citizens of different states (Plaintiff is a citizen of Florid
a and Defen dant is a citizen of
Illinois).

3. A national banki ng association is a citizen, for diversity purpo

ses, of "the state
designated in its articles of association as its main office ." Wach
ovia Bank v. Schmidt, 546 U.S.
303, 318 (2006).

4. This Court has personal jurisd iction over the Defendant pursu
ant to Fla. Stat. §
48.193.

5. Venue lies in this Distri ct pursuant to 28 U.S.C. § 139 l(b)

because the property
whose mishandling by Defen dant is at issue in this present
lawsuit lies within the jurisdictional
limits of this Court.

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 THE PARTIES

Plain tiff

6. Plain tiff is a citize n and domici led in Palm Beach Coun

ty, Florid a, and the lawful
owne r of a parce l of real prope rty (here inafte r referr ed
to as " Subje ct Prope rty") locate d in Palm

Beac h Coun ty at 17685 Pond Cour t, Boca Raton , FL 33496

.

7. The Subje ct Prope rty was purch ased w ith a HELO

C as Plain tiff's princ ipal
reside nce.

8. The Subje ct Prope rty is a residential struct ure conta ining

one to four famil y hous ing
units.

9. The mortg age loan in quest ion is a " reside ntial mortg
age transa ction" as defin ed
under 15 U.S.C . § l 602(x ).

I 0. The mortg age loan in quest ion is a "fede rally relate d

mortg age loan" as defin ed
under 12 U.S.C . § 2602( 1).

Defen dant

11. Defen dant FAB is an Illinois banki ng corpo ration condu

cting busin ess in Palm
Beac h Coun ty, Florid a, with its principal place of busin
ess in Elk Grov e Villa ge, 111inois.
12. Defen dant FAB merg ed with the Bank of Coral Gable
s, effec tive Dece mber 5,
2014, acqui ring the assets and assum ing the contr actua
l oblig ation s of the Bank of Coral Gables .

13. Defen dant F AB' s depos its or accou nts are insur ed by
an agenc y of the Feder al
Gove rnme nt, and is regul ated by an agenc y of the Feder
al Gove rnme nt.

14. RESP A and T JLA are feder al consu mer finan cial laws.
12 U.S.C . § 5481( 14).
Unde r Sectio n I 036 of the CFPA , it is unlaw ful for any
cover ed perso n " to offer or provi de to a
consu mer any finan cial produ ct or servic e not in confo
rmity with Feder al consu mer finan cial law,

3
 or otherwise comm it any act or omission in violat ion of a Feder
al consumer fi nancial law." 12
U.S.C § 5536( a)(l)(A ).

15. Violations of RESP A and TILA are therefore violations of

Section 1036 of the
CFPA. 12 U.S.C § 5536( a)(l)(A ).

16. Defendant FAB is, and at all times relevant to this Amended
Comp laint, has come
within the definition of "covered persons," as defined by
12 U.S.C. § 548 1(6)(A), because it
offers or provid es a consu mer financ ial product or service
for use by consumers primarily for
personal, family, or house hold purpo ses, or that is delivered,
offere d, or provided in connection
w ith such a produ ct or servic e by: servicing mortgage loans;
collecting on consu mers' mortgage
debts; and marketing and processing and transm itting paym
ents for credit monitoring produ cts,
financial advisory products, and other products that are added
on to the accou nts of borrowers
whose loans they service ("add-on products"). 12 U.S.C. § 5481
(15) (A)(i), (iv), (vii), (viii), and
(x).

17. At all times material hereto, Defen dant FAB was, and is, a credit
or as the term is
defined in 15 U.S.C. § 1602(g).

18. At all times material hereto, Defen dant FAB was, and is, an
assignee pursu ant to
15 u.s.c. § 1641.

19. At all times material hereto, Defendant FAB was, and is, a loan
servicer as the term
is defined in 12 U.S.C. § 2605(i)(2), that services the loan obliga
tion secured by a HELO C upon
the Subje ct Property.

20. The Subje ct Property is a reside ntial structure containing one to

four family housin g
units.

4
 ALLEGATIONS COM MON TO ALL CLAIMS

21. Plaintiff had a longstanding business relationship with

the Banl< of Coral Gables,
beginning in 2006.

22. Plain tiff is in the business of acquiring mortgage loans

and pools of loans from
numerous lenders, servicers, and mortgage insurance comp
anies since 2005 through three separate
entities: (1) S&A Capital Partners, fnc. ; (2) JS1 Fidelity
Loan Servicing, LLC; and (3) Mortgage
Resolution Servicing, LLC.

23. Plain tiff is the principal investor in all three entities, and
the Bank of Coral Gables
had provided business lines of credit to S&A Capital Partn
ers, Inc. in the past.
24. Beca use of Plain tiffs prior excellent business relationshi
p with the Bank of Coral
Gable s, he chose them to for his purchase money, federally
related first lien mortgage loan, which
Plain tiff executed simultaneously upon the closin g and
acquisition of the Subje ct Property.

Execution of HEL OC on Subject Property

25. On July 26, 2006 , Plain tiff and his wife, Stephanie L.
Schneider, purchased the
Subje ct Property with cash and a cashier's check for
$1,427,471 , 19 to serve as their principal
residence.

26. On the same date, Plain tiff closed on a HELOC with the
Bank of Coral Cables in
the amou nt of $1,500,000.00 on the Subje ct Property.
A true and correct copy of the HELO C is
attached hereto as Exhibit A to the Amended Complaint.

27. The HELO C was obtained for personal and household purpo
ses, which included a
substantial amou nt of interior woodwork, build out and
completion of certain design elements of
the home, along with landscaping and required code upgra
des, which the HELO C covered.

5
 28. Plaint iff alleges that the fundin g for the HELO C was based
upon a faulty and
inflated prope rty apprai sal perfor med in March 2006, valuin
g the home at $2,00 0,000 .00.

29. Accor ding to the terms of the HELO C, Plain tiff s paym
ent was due by the
"paym ent due date."

30. Under the writte n terms of the HELO C, Plain tiffs payme nt
would be late if it was
not receiv ed within 15 days after the "Paym ent due date" on
the period ic statement.

31. T he writte n terms of the H ELOC did not specif y a fixed day
of the month by which
payme nt must be receiv ed.

32. Under the terms of the HELO C, the balanc e upon which
financ e charg es are
charg eable was determ ined by the begin ning balanc e of the
prior day, to which new advan ces are
added and from which paym ents and credit s are subtra cted.
Finan ce charg es are calcul ated on this
balanc e daily in accordance with the "daily balanc e metho d."

33. The writte n terms of the HELO C, in releva nt part, do not define
new advan ces to
includ e intere st charg es.

34. Plaint iff took the first draw on the HELO C on March 3, 2007
and made regula r
intere st payments by the first of every month , which included
interest calcul ated up to the 15th day
of the prior month.

Bank of Coral Gables' Merg er with FAB

35. Upon information and belief, FAB merged with the Bank of Coral
Gable s somet ime
betwe en the months of Novem ber and Decem ber of 2014.

36. FAB has not provided evidence to Plaint iff that a merge r with
the Bank of Coral
Gable s included an assign ment and/o r transf er and vested
right to the Subje ct Prope rty or the
execu ted HELO C.

6
 37. Plaint iff did not receive any letter of transf er of servicing from
FAB or from the
Bank of Coral Gables regarding the subject HELOC. It was only
by Plaint iff's own efforts that he
received notification of the merger and/o r acquis ition by F AB.

FAB' s Error(s)

38. Plaint iff's first contac t from FAB was by telephone in May
2015, in which FAB
advised Plaintiff that ifhe "did not pay past due amou nts owed
on the subjec t HELO C, F AB would
foreclose."

39. During the call, FAB representatives advised the Plaintiff that
FAB had merged
with the Bank of Coral Gables, and FAB now owned both his
HELO C and underlying mortgage.
40. During the same May 2015 telephone conve rsatio n, FAB repres
entatives confirmed
that FAB had sent notification of loan transfer (RESPA Letter
) and statements to an incomplete
post office box mailin g address and witho ut the Subje ct Prope
rty's city, state, and z ip code.
41. Plaint iff advised FAB that all incorrect mail would not necess
arily be forwarded,
and that he had not yet received any such forwa rded mail from
FAB.

42. On May 28, 2015, Plaint iff received wire instructions for the May
l , 2015 and April
I, 20 15 payments from FA B representatives.

43. Plaint iff requested verification of the account number becau

se there was no pre-
existing account or loan number with FAB.

44. FAB advised Plaint iff to continue using the Bank of Coral Gable
s account number
and his name for identificatio n for wire paym ent purposes.

Plaintiff Made Timely Payments on the HELO C

45. On May 28, 2015, Plaintiff sent his April I, 20 l S and May
l , 2015 payments by
wire.

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 46. On May 29, 2015 , upon request, F AB confirmed receip t
of payments that were due
on April 1, 2015 and May 1, 2015 .

47. On June 1, 2015 , Plain tiff wrote to FAB, advising that

he had not received an
invoice for his June I, 2015 payment, and therefore did
not know the amou nt owed for the June I,
20 I 5 payment.

48. On June 3, 2015 , Jame s Kielbasa of FAB apologized to

Plain tiff via email for the
late response and advised that the amou nt due for the June
1, 2015 paym ent was $4,427.64. Mr.
Kielb asa requested confirmation of receipt of the July 1,
2015 statement.

FAB 's Misrepresentations and Misappropriations

and Dual Tracking of Plain tifrs Loan

49. On June 5, 2015 , Jennifer Anderson, Vice President at

FAB, sent Plaintiff a letter
which acknowledged that FAB' s clerical errors occurred
during the recent merg er with Bank of
Coral Gables.

50. F AB sent confirmation that it had erroneously printed an

incorrect billing address
and due to FAB's clerical error, Plain tiffs payments
were "not considered late" [Emphasis
Added].

51. Ms. Anderson also stated, "Tod ay, we have asked the
credit agencies to corre ct
your credit file to satisfactory status ." Ms. Anderson provi
ded Plain tiff the name, address, phon e
number and webs ite information for Experian, Trans Unio
n, Equifax and Innovis.

52. A true and correct copy of the June 5, 2015 Letter from
Jennifer Anderson is
attached herewith as Exhibit B to the Amended Complaint.

53. FAB' s clerical error occurred during its merger with the
Bank of Coral Gables, and
FAB assured Plain tiff that the delinquencies reported in
April 2015 with all three credit bureaus
would be immediately corrected.

8
 54. This was not done, neith er at the time of filing the origi
nal Com plain t, nor now with
the filing of this Ame nded Com plain t, desp ite reass
uranc es from FAB , which failure by FAB was,
and is, a breac h of the impli ed cove nant of good
faith and fair deali ngs, along with the expre ss
terms of the HEL OC.

55. FAB, howe ver, has conti nued to calcu late accru
ed inter est on the outst andin g
balance, whic h inclu ded the late fees, even thoug
h the late fees were repre sente d to Plain tiff as

havin g been rever sed.

56. On June 8, 2015 , Plain tiff reaff irmed to FAB that

paym ent for the perio dic billin g
due June I, 20 15, was imme diate ly made on June
5, 2015 , as instructed.

57. On June 20, 2015 , Plain tiff wrote to F AB ' s Jame

s Kjelb asa, affirm ing recei pt of
the state ment for the July l , 2015 paym ent due date
and confi rmed F AB' s use of Plain tiff's corre ct
maili ng addre ss.

58. On the same day, Plain tiff sent a writt en reque st for
the year to date charg e/pay ment
histo ry and a copy of the prom issor y note to recon
cile the inter est with the outst andin g balan ce
owed on the HEL OC.

59. On June 26, 2015 , Plain tiff infor med Milto n

Espin oza, Vice Presi dent, and
Com merc ial Loan Relationsh ip Mana ger at FAB,
that he was conti nuing to be billed for late
charg es prior to the paym ent due date and that this
adva nced billin g was part of the conti nuing
probl ems Plain tiff was enco unter ing with his accou
nt.

60. Plain tiff advis ed F AB that the loan was board ed

by F AB with nume rous error s,
including a wron g billin g addre ss whic h delay ed
Plain tiff's recei pt of mont hly state ment s, and
made yet anoth er writt en dema nd for copie s of the
note, mort gage , and the year to date paym ent
histo ry in an attem pt to recon cile interest charg ed
and outst andin g balan ce to date.

9
 61. Milton Espinoza of FAB provided Plaint iff with a partial loan
history, which was
dated June 26, 2015, but which neither offere d nor provided
an explanation of the partial loan
history extracted from FAB's record keeping systems.

62. On June 26, 2015, Milto n Espin oza emailed Plaintiff portab
le docum ent format
("PDF") version(s) of the promi ssory note and mortg age from
the Bank of Coral Gables.
63. On June 27, 2015, Plaintiff email ed a written request for explan
ation to Milto n
Espin oza regarding FAB' s s July 1, 2015 statem ent and attach
ed the July statem ent referenced in
the letter to reques t c larification about wheth er the due date
was the 1st or 15th of every month ,
due to the fact that FAB' s system continued to record payme
nts as late and assessed a late charge
on each of Plain tiffs paym ents.

64. On July 15, 2015, FAB received $4,055 .91 throug h a wire payme
nt from Plaint iff
for the July I , 2015 billing amount owed.

65. In July 2015, Plaint iff called the custom er servic er numb er
listed on the FAB
period ic statem ent for clarification of the amou nt due and confir
mation that the accou nt was in
good status; however, the custom er service agent could
not provide Plaintiff any accurate
information as to either question. After keeping Plaint iff on ho
ld for fifteen minut es, the custom er
servic e representative came back on the phone, infonn ing Plaint
iff that he had to check w ith his
supervisor and would return the call. Plaint iff never receiv
ed a return call from F AB custom er
service.

66. On Augu st 8, 20 15, Plaint iff wrote to FAB's Brian Hagan regard
ing the settlem ent
of the HELO C, noting the derogatory report ing on credit
due to incorrect loan boarding and
incom petenc e by FAB and provided a copy of the June 5,
2015 letter from Ms. Anderson to
Plaintiff, ackno wledg ing that it was FAB's fault for the billing
errors.

10
 67. On August 28, 2015, FAB received $4,297.83 via a wire paym
ent from Plaintiff.
68. On Septe mber 30, 2015, FAB received $3,977.53 via a wire paym
ent from Plaintiff.
69. On the same day, Plaint iff wrote to FAB's authorized representati
ve, Brian Hagan,
confirming his Septe mber 30, 2015 paym ent on the HELO
C account, advising of flawed
information in the servic ing system of records, directing FAB
to apply the paym ent accordingly,
and noting his frustration concerning FAB 's continuing errone
ous and derog atory reporting of the
account, despite numerous requests to FAB to correct the inform
ation and Defen dant's promises
to do so.

70. On October 1, 2015, Brian Hagan confirmed receipt of Plaint

ifPs Septe mber 30,
20 I 5 paym ent and requested that Plaint iff call him with any
questi ons regarding the Octob er I,
2015 payment.

71. On Octob er 27, 2015, Plaint iff again called the FAB's custom
er service numb er
listed on the Periodic Billing Statement; however, custom er servic
e once again responded that they
were "unable to determine the HELOC account information with
accuracy at that time."
72. On Octob er 27, 2015, Plaintiff again wrote to Brian Hagan to addres
s FAB' s failure
to address and remediate its flawed systems of records, which
continued to report that the HELO C
account was delinquent for six months and more than 30 days
past due for Octob er 2015, thereby
fraudulently corrupting Plaint iff's credit worthiness, and resulti
ng in several failed attempts to
secure financing due to FAB' s customer service depar tment 's
inability to determine the last paid
date and next due date of the mortgage loan.

73. An Octob er 27, 2015 credit report obtained by Plaint iff indica
ted that F AB had,
contrary to its representation to Plaint iff, reported delinquencie
s for payments due on Septe mber
2015 and Octob er 2015 with all three credit bureaus, along with
a balance of $1,495,469 .00.

11
 74. A true and correct copy of the October 27, 2015 credit report
is attached hereto as
Exhibit C to the Amended Complaint.

75. According to the Octob er 27, 2015 credit report of Plaint iff, FAB
reported the last
activity was in Octob er 2015. According to the tri-merge credit
report, F AB reported Plaint iff to
be $3,982 past due. Furthermore, the report stated that Plaint
iff was delinquent between 30-59
days late twice, in Octob er 2015 and Septe mber 2015.

76. Again , before the month of Octob er had even expired, FAB had
already informed
the credit bureau s that Plaint iff's Octob er I, 2015 paym ent was
already more than 30 days late, in
addition to not removing the late payment notification for the Septe
mber I, 2015 HELO C payment.
77. On October 30, 2015, Plaint iff wrote to Brian Hagan to inquir
e about how FAB
would remediate the continued erroneous credit reporting of
the HELO C account and the harm
such erroneous reporting had cause d Plaint iff to date. Plaintiff again requested a complete
paym ent history of the account from origination, as well as
a copy of the entire origination file,
along with any and all prior billing statements, notices, and other
correspondence pertai ning to the
origination and servicing of the loan and asked that the reques
t be deemed a qualified written
request.

78. On the same date, Plaint iff also asked for an explanation for
the failure of the
application of the September 2015 payment, as the promised
verification did not occur and the
Septe mber 2015 payment was not appl ied properly.

79. On Octob er 30, 2015, Brian Hagan wrote back to thank Plaint
iff for the email and
to advise him that the Octob er 1, 2015 paym ent in the amou
nt of $4,646.05 was due, along with
the Novem ber 1, 2015 paym ent in the amou nt of $3,823.29.
Brian Hagan also requested that the

12
 Plain tiff provide his personal tax returns and personal
financial statem ent for consideration of a
deed in lieu.

80. On Octob er 30, 2015 , FAB received $4,646.05 from Plain

tiff.
81 . On Nove mber 4, 2015 , Plain tiff again wrote to FAB's
authorized representative,
Brian Hagan, requesting information and documentation
regarding the steps FAB had taken to
ensure that the erroneous reporting made by FAB to the
credit burea us had been remedied, as
Plain tiff's credit was continuing to suffer as a direct and
proximate result of FAB's failure to apply
Plaintiffs payments to the HELO C accou nt and contin
ued repor ting of negative and inaccurate
inform ation to all credi t agencies. Plain tiff specifically
cited the need for documentation and
included a copy of the correspondence that FAB sent to
the credit agenc ies, acknowledg ing that
Plain tiff's payments had been timely.

82. On Nove mber 4, 2015 , Brian Hagan responded that he

was in possession of the
paym ent histor y, which woul d be sent to Plain tiff, and that
although he had been advised that the
credit repor ting was accur ate, he would "dou ble
check" and provide Plain tiff with the
correspond ence betwe en FAB and the credit reporting agenc
ies regarding the matter. A true and
correct copy of the email exchange betwe en Plaintiff and
Brian Hagan is attached hereto as Exhibit
D to the Amended Complaint.

83. No such correspondence was ever [Emphasis Adde d] receiv

ed from Brian Hagan
or F AB, and to date, there has been no correction to Plain
tiff's credit report.
84. On November 5, 2015 , Plaintiff again wrote to Brian
Hagan expressing extre me
concern over assurances by FAB emplo yees regarding
the accur acy of the credit repor ting since
Plain tiffs paym ents were continuing to be reported as late.

13
 85. When Plaint iff asked for an explanation from Brian Hagan as to
why he was marked
delinquent on the account when Brian Hagan himse lf confir
med that his status was current,
Plaintiff was advised to deal only with Brian Hagan.

86. Plaintiff alleges that this was specifically because FAB' s

billing records were
severe ly corrupted by FAB's multiple clerical errors , misap
plicat ion of HELOC paym ents,
incorrect billing cycles and erroneous board ing of Plaint iff's
HELOC information at the time of
merger with the Bank of Coral Gables. The culmination and compo
undin g of these errors made it
impossible for anyone at F AB to provide Plaint iff with timely
and accurate information regarding
Plaintiff's federa lly related mortgage loan.

87. Plaint iff alleges that FAB also wanted to keep the matte
r contained and not
expanded through inquiries with FAB' s loan servic ing depart
ment.
88. Plaint iff was now to rely on Mr. Hagan 's information and comm
unication as to how
much the monthly paym ent would be each month.

89. Thus, based on FAB' s directive, Plaintiff made multiple paym

ents as directed by
Brian Hagan himself.

90. Plaint iff again requested detailed explanations fo r interest rate

calculations, specific
billing cycle in forma tion for the months of September 1, 2015,
Octob er l , 201 5, and Nove mber l,
20 15, and the reason "the information which you have provid
ed to me below and represented to
be accurate differs from the information contained in the bank'
s servicing system of records for
these two period s."

91. On Novem ber 12, 2015, Brian Hagan advise d Plaint iff that he
had not yet receiv ed
the fi nancial information requested by FAB.

14
 92. On Nove mber 16, 2015 , Plain tiff communicated with Brian
Hagan regarding the
completion of the financial information form and FA B's
requests for information from Plain tiff,
and provided FAB w ith the documentation requested by
FAB, which included tax returns and W-
2 forms.

93. On Nove mber 17, 2015, Plain tiff had absolutely no idea
of how much his monthly
HELO C payment was supposed to be. Plaintiff, in a show
of good faith, wired FAB an arbitrary
amou nt of $4,500.00.

94. On Nove mber 18, 2015, Plain tiff, in his capacity as guara
ntor of 1st Fidelity Loan
Servicing, received a communication from Ms. Cabrera
of Bank United, in which she explains,
"Per our conversation, as part of our loan conditions
from time to time we review guara ntor' s
credit and yours has been addressed. Please provide letter of explanation and supporting

documentation of resolution to credit report."

95. Apparently, the proof of w ired payments and several

communications between
Plain tiff and FAB was not sufficient evidence.

96. On Nove mber 18, 2015 , Brian Hagan advised the Plain
tiff that " it looks like F AB
has received everything it needs from [Plaintiff] and will
review it promptly." Later the same day,
Plain tiff advised Brian Hagan that because of the false credi
t information provided by FAB, Bank
United had suspe nded business lines of credit solely on
the basis of the negative reporting on the
personal credi t report, which was, and continues to be, erron
eous.
97. On Nove mber 19, 2015 , Brian Hagan and Plain tiff met,
but F AB did not provide
Plain tiff with an explanation for or the requested detail
s regarding the loan, paym ent histories or
the accounting for the HELO C loan. Late the same day,
Plain tiff again wrote to F AB to request
remediation of the reporting errors and a letter to rectif
y the dama ging information supplied to

15
credit agencies which was destroying Plaint iff's credit rating,
score, and worthiness in the eyes of
potential lenders. Furth ennore, Plaint iff reminded Mr. Hagan
that, "during a QWR, the bank is
required to NOT make any negative reporting to the credit ...reposi
tories. "
98. On Novem ber 20, 2015, Brian Hagan wrote to Plaint iff regard
ing possible loss
mitigation options and confirmed that FAB had run a credit report
to ensure that Plaint iff's account
was not showi ng past due payments and that, as agreed, report
ing included all payments. Later
the same day, Plaint iff wrote to express his gratitude to Brian
Hagan for making corrections to the
credit reports and reques ted documentation regarding the
paym ent histor y of the loan since
origination and all executed loan docum ents.

99. On November 30, 2015, Plaintiff received a letter from Henry

Bolz, of Keller &
Bolz, LLP, notifying Plaintiff the he represents FAB. Mr. Bolz'
letter stated:
"This letter responds to that email which you sent to Brian
Hagan at 3:05 p.m. on
Friday, October 30, 2015. That email can arguably be viewe d
as an attem pt by you to
dispute directly with FAB, in accordance w ith 15 U.S.C.
§ 1681 s-2(a) (8) of the
Consu mer Credit Protection Part of the Fair Credi t Repor
ting Act ("FCR A"),
information that FAB provided to credit reporting agencies earlie
r this year."

"In accordance with the FCRA, FAB has conducted an invest

igatio n and review ed that
information in which you provided with respec t to the
disputed late payment
infonnation you identified. After completing its investigatio
n, F AB communicated
with all of the major/natio nal credit reporting agencies and advise
d them that all of your
past due paym ent notices have been reversed, and that you
had been making all
payme nts as agreed. This letter is being timely sent to you in accord
ance w ith 15 U.S.C .
§ 1681 i".

"Your Nove mber 18, 2015 (7:48 p.m. EST) and Novem ber 19,
2015 (4:37 p.m. EST)
emails to Brian Hagan indicate that in addition to " immed
iately remed iating the
reporting errors" (done), FAB needs to " send any letters neede
d to rectify the harms "
and identifies the Bank United-] st Fidel ity revolving line of
credit as havin g been
affected. Do you still want/need FAB to write to Bank United
(or might a letter now
be unnecessary)? Please let me know."

16
 A true and correc t copy of the letter to Plaint iff from Mr. Bolz
is attached hereto as Exhibit
E to the Amended Complaint.

100. This was now the fourth time a representative of F AB, or

counsel representing
FAB, had acknowledged the ongoi ng billing errors, and their
requirement to rectify FAB systems
of record to properly report Plain tiffs credit file.

10 I. Mr. Bolz' letter also specifically instructed Plaint iff that all future
correspondence
regarding these matters addressed should specifically be with
his firm, and not FAB:
"All further requests for information for documents in any
fashion relate to any
complaints or disputes that you might have pursuant to the FCRA
should be addressed
to the undersigned at the above address of this corres pondence."

102. Thus, and based on the above and foregoing, Mr. Bolz has not
only admitted that
FAB made errors, but that he was, and is, also aware of the Bank
United-I st Fidelity Line of Credit
being terminated due to FAB' s reporting errors.

103. According to this letter and a comm unication confirmed by

Mr. Hagan, Plaint iff
was now supposed to receive his payme nt billing and paym ent
information from Mr. Bolz, who
did not identify himse lf as a debt collector in his Novem ber 30,
2015 letter to Plaintiff.
104. On January 7, 2016 and January 9, 2016, FAB reported Plaint
iff was 30 days late
in making a paym ent on the HELOC. A true and correct copy
of the email notifying Defendant
about the derogatory credit reporting on January 7, 2016 and
January 9, 2016 is attached hereto as
Exhibit F to the Amended Complaint.

105. Again, since Plaint iff had absolutely no idea of how much
his monthly HELO C
paym ent was suppo sed to be, on January 14, 2016, Plaint iff
wired FAB an arbitrary amou nt of
$4,800.00 via wire payment. Mr. Hagan confirmed receipt of
the payment.

17
 I06. On Janua ry 18, 20 16, Plain tiff wrote to Henry Bolz and carbo
n copie d Brian Hagan,
Gary Smith, and James Berto n of FA B, to reiterate the
ongo ing erron eous servi cing cause d by the
lack of quali ty contro l and openl y questioned why no one
at the bank would investigate, provide
an account histor y, or review the loan docum ents, and
requested the corre ction of the false
repor ting and a retract ion of the erroneous information,
which was causi ng financial d ifficu lties as
a result of the ballo on mortgage on the Subje ct Prope rty.

107. On Janua ry 25, 2016, Plain tiff once again had absolutely
no idea of how much his
monthly HELOC paym ent was suppo sed to be, and
thus wired FAB an arbitrary amou nt of
$4,500.00.

I 08. On Febru ary 17, 2016 , Plain tiff once again wired FAB
an arbitrary amount of
$4,500.00.

109. On March 15, 2016, Plaintiff once again wired FAB

an arbitrary amou nt of
$4,500.00.

110. On April 6, 2016 , Plaintiff once again wired FAB an arbitr

ary amount of$4 ,500.0 0.
111. On June 13, 2016, Brian Haga n requested that Plain
tiff provide FAB with a
completed perso nal financial statem ent.

112. On June 30, 20 I 6, Plain tiff wrote to Brian Haga n regar

ding the sensit ive financial
information reque sted by FAB, and provided attachments
to several of Plain tiff's financial forms
that documented the remit ted debt.

113. On July 7, 2016, Plain tiff received a delinquenc y letter

from FAB for the months
of May, June, and July 2016 , which advised Plain tiff that
the curre nt amou nt owed was $59,481 .27,
of which $50,154.44 was due for the June 1, 2016 paym
ent.

18
 114. Plain tiff alleg es that no rational expla natio n, calcu
lation, or information was
inclu ded with the one-p age reque st for payment.

115. On Augu st 9, 2016 , Plain tiff conta cted Brian Haga

n to provide the finan cial
information reque sted by FAB.

116. Plain tiff subse quen tly advis ed that F AB has cause
d delinquency and severely
comp romi sed the ability of entities in whic h he is a
guara ntor to obtain personal and busin ess credi t
on multi ple occas ions due to FAB 's negligent servi
cing practices.

117. FAB had not, and to date has not, reme died the
past due statu s of the subje ct
HEL OC.

118. FAB reported to the Equi fax credit agen cy that Plain
tiff was 30 days late in maki ng
paym ent in May 20 16, 60 days late in June and July
of 2016 , and 120 days late every mont h since.

119. Since Apri l 3, 2017 , the Tran s Union credi t agen cy

has reported that the outst andin g
balan ce has been $1,49 5,457 .00

120. The credi t agencies, Equi fax and Expe rian, continue
to report an unpa id balan ce of
$1,70 8,894 .00 and falsely state that the Plain tiff is
using 114% of the HEL OC limit.

121. On February 20, 2017 , an Expe rian repor t revea led

data that contr adict ed the verbal
and writt en state ments of FAB and repo11ed no data
for the mont hs of Janu ary and Febr uary 2016,
even thoug h FAB recei ved $9,30 0.00 on Janu ary
25, 2016 from the Plaintiff. A true and corre ct
copy of the Expe rian credi t report is attached heret
o as Exhibit G to the Ame nded Com plaint.

122. F AB has adde d fees for whic h no explanation or

informatio n has been provi ded;
and upon infor matio n and belie f, FAB has adde d,
and will conti nue to add, fees and costs not
conte mplated or agree d to by the HEL OC that woul
d make the loan usuri ous. A true and corre ct

19
 copy of a response to a Qualified Written Request made
by Plaint iff with a full payment history
until May 24, 2017 is attached as Exhibit H to the Amen
ded Comp laint.
123. On June 13, 2016 , Brian Hagan forwarded to Plaintiff a packa
ge entitl ed "Pers onal
Financial State ment .pdf' for the purposes of the bank determ
ining whether other loss mitigation
options were available.

124. On August 8, 2016, Plaintiff fo llowed up with Hagan regar

ding whether they had
received his completed "Personal Financial Statement.pdf''
and there was no respo nse.
125. On August 17, 2016, FAB filed a Notice of Lis Pendens
on the Subje ct Property,
and initiated foreclosure proceedings on the Subject Prope
rty.

COUNT I-VIOLATIONS OF THE

REALESTATESETTLEMENTPROCEDURESACT

126. Plain tiff re-alleges and incor porates by reference all prece
ding paragraphs.
127. Fundamental functions of a mortgage servicer including
processing and applying
borrower payments, communicating accurate payment inform
ation to borrowers, and maintaining
loan balance information . Servicers also respond to borro
wer inquiries, handle loss mitigation
requests and initiate foreclosure proceedings, amon g other
functions.
128. To perform these tasks, servicers input loan and borro
wer information into
electronic databases, often referred to as system s of record
. Systems of record are essential to a
servic er's ability to service loans in accordance with
applicable legal requirements. If the
information the servicer inputs into the system of record
is inaccurate, or the system itself has
deficiencies that produce inaccurate information even
when the servicer inputs correct
information, a servicer can make critical errors that harm
borrowers.
129. Upon information and belief, when the Bank of Coral
Gables was purchased by
FAB, the boarding of loan information to FAB' s Syste
m of Records was full of inaccurate and
20
 incomplete borrower loan information, as
denoted by the fact that the bank had the
incorrect
address for Plain tiff and neve r sent him a Noti
fication of Loan Transfer. FAB inputted inac
curate
and inco mple te information caus ing Plai ntiff
s loan to be marked late by credit reporting agen
cies,
as well as inaccurately denoting the true bala
nce of the loan , as indicated on numerous occa
sion s,
as noted above.

130. Plain tiff alleges that FAB 's use of inaccurate

and inco mple te information to colle ct
mortgage paym ents , com municate with Plai
ntiff abou t loss mitigation issues, proceed
with
foreclosures, and its improper tran sfer of Plain
tiff's loan from Ban k of Coral Gables to FAB,
is a
violation of RESPA and its impleme ntin g regu
lation, Regulation X .
131. As of January 10, 2014, Section 6(e)(2) and
(k)( l)(c) of RES PA, 12 U.S.C. §§
2605(e)(2) and (k)( l)(c), requ ires FAB to cond
uct an investigation of a qualified written requ
est
and mak e appropri ate correctio ns to a cons ume
r's account.
132. The acts and practices described above cons
titute violations of Section 6(e)(2) and
(k)( l)(c) of RESPA, 12 U.S.C. §§ 2605(e)(2
) and (k)( l)(c) .
133. RESP A and its implementing regulation, Reg
ulation X, appl y to "federally related
mortgage loans," includ ing the serv icing of
the loan on the Subj ect Property, the adm inist
ration of
their escr ow accounts, erro r resolution proc
edures, force-placed insurance, gene ral serv
icing
policies and procedures, and loss mitigatio n
procedures.

134. RES PA and Regulation X appl y to the conduct

of"s ervi cers ." Regulation X defines
a serv icer as a person "respons ible for serv
icing of a fede rally related mortgage loan."
Under
Regulation X, "ser vicin g" means " receivin
g any scheduled periodic payments from a
borrower
pursuant to the terms of any federally related
mortgage loan ... and making the payments
to the
own er of the loan or othe r third parties of
principal and interest and such othe r paym
ents with

21
 respect to the amounts received from the borrower as may
be requi red pursuant to the terms of the
mortgage servic ing loan documents or servic ing contract."

135. FAB is a servic er under RESP A and Regulation X becau

se it receiv es paym ents
from borro wers pursuant to the terms of federally relate
d mortgage loans and is respo nsible for,
amon g other things, distributin g the payments to inves
tors who own the borro wers' loans and,
when borrowers' loans includ e escro w accou nts, to the
borro wers' taxing authorities or insurance
companies.

136. As of January 10, 2014 , Regulation X, which the Burea

u promulgated pursuant to
Sectio ns 60)(3 ), 6(k)( l )(C), 6(k)( l)(E), provides borro
wers with a variety of protections durin g
their loss mitig ation application and foreclosure processes.

137. Unde r Regu lation X, if a servic er receives a loss mitig

ation application, which is
an oral or writte n request for a loss mitigation optio n
that is accompanied by any inform ation
required by a servicer for evaluation for a loss mitig ation
optio n ("Loss Mitigation Application"),
from borrowers whose mortgage is secured by their princ
ipal residence, certain protections are
triggered.

138. Unde r Regulation X, if a servic er receives a Loss Mitig

ation Application 45 days
or more before a forec losure sale, it must send the borrower
an ackno wledg emen t letter within five
days that indicates if the appli cation is comp lete and, if
it is not, states the addit ional documents
and information that the borrower must submit to comp
lete the applic ation ("Ack nowle dgme nt
Letter").

139. A Loss M itigation Applicat ion is comp lete under Regu

lation X when the servic er
has receiv ed all of the information it requires from
a borrower to evaluate the borrower's
application for all availa ble loss mitigation options ("Com
plete Application"). An application is

22
 facially complete unde r Regulation X if a borro
wer provides the information and documentation
that the serv icer requests in the Ackn owle dgm ent
Letter or if no additional information is requested
in the Ackn owledgment Letter ("Fa cially Complete
Application").
140. Regulation X also requires that, if a servicer recei
ves a Complete Appl icatio n more
than 37 days before a foreclosu re sale, it must evalu
ate the borro wer for all available loss mitigation
options and prov ide the borr ower with a writt
en notice within 30 days indicating, amo ng othe
r
things, whet her it w ill offer the borrower any loss
mitigation options.
141. Regulation X also generally prohibits servi
cers from, amo ng othe r things,
com men cing a first notice of filing of a forec
losure ("First Filing"), obtaining a foreclosure
judg men t, or conducting a foreclosure sale if: (I)
the servi cer discovers that additional infor mation
or corrections to a previously submitted docu men
t are required to comp lete a Facially Com plete
Appl icatio n and the borro wer has not had a reaso
nable opportunity to complete the application;
(2) the servicer has time ly received a Com plete
Ap plication but has not yet evaluated the
appli cation; (3) the time for the borrower to respo
nd to a loss mitigation offer or to appe al a loan
modification denial has not expired; or (4) the
borrower is performing upon a loss mitigation
agreement (e.g., a trial loan modification or shor
t-term paym ent forbearance program).
142. FAB received several Loss Mitig ation Applicat
ions from Plaintiff.
143. Despite this, FAB made First Filings even
though FAB was still evaluating
borrowers' Complete Applications that it had recei
ved.
144. FAB has obtained a foreclosu re judg men t again
st Plain tiff from who m it received
a Com plete Application or Facially Complete Appl
ication more than 37 days before a foreclosu re
sale, and who: (1) was waiting for FAB to evaluate
his Com plete Application; (2) still had time to
acce pt a loss mitig ation offer; (3) were perfo rmin
g upon a loss mitigation agreement; or (4) had

23
 not been provi ded with a reasonable oppor tunity to provi
de FAB with missi ng information or
corre cted information required to comp lete a Facia lly Comp
lete Appl ication.

145. The acts and practices descr ibed above constitute viola
tions of Secti ons 60)(3 ),
6(k)( l)(C) , 6(k)( l)(E) and 19(a) ofRE SPA, 12 U .S.C.
§§ 2605 0)(3) , (k)(l) (C), and (k)(l) (E),
and Regulation X, 12C.F .R. §§ 1024 .4l(b)(2)(i)(B), 1024
.4l(c) ( l)(i) and (ii), 1024.41(t)(2), and
1024. 4 1(g).

146. Secti on 6 ofRE SPA, 12 U.S.C. 2605( f) states that: "Who

ever fails to comp ly with
any provision of this sectio n shall be liable to the borro
wer for each such failure in the fol lowin g
amou nts: (I) Indiv idual s In the case of any action by
an individual, an amou nt equal to the sum
of- (A) any actual dama ges to the borro wer as a resu
lt of the fai lure; and (B) any additional
dama ges, as the court may allow , in the case of a patter
n or practice of nonco mplia nce with the
requi remen ts of this section, in an amou nt not to excee
d $2,00 0."

COUNT II-VIOLATIONS OF THE

TRUTH IN LENDING ACT

147. Plain tiff re-alleges and incorporates by reference all prece

ding paragraphs.
148. As of Janua ry I 0, 2014 , Regu lation Z gener ally requi res
FAB, when it receiv es a
full perio dic paym ent, to credit the paym ent as of the
date of receip t unless the failure to do so
does not result in a charg e to the borro wer or negat ive
repor ting.1 2 C.F.R. § 1026. 36(c) (l)(i) . lf
FAB retains a partial paym ent, or a paym ent less than
the full perio dic payment, which it holds in
a suspense or unappl ied funds accou nt, FAB must also,
after an accum ulatio n of suffic ient funds

to cover a periodic paym ent, treat such funds as a perio

dic paym ent. 12 C.F .R. § 1026.36(c )( 1)(ii).

149. Furth er, under Regu lation Z, FAB must, subje ct to

certain exceptions, provi de
borro wers with a mont hly perio dic statem ent or billing
statement detail ing information such as the
amou nt due, how FAB will break down and apply mont
hly paym ents, all paym ents recei ved since
24
 the last statem ent, the total of all payments received
since the beginning of the current calendar
year, all transaction activity since the last statement,
and the amount of payments in a suspe nse or
unapplied funds account. 12 C.F.R. § 1026.41(d).

150. As detailed previously, FAB has fa iled to time ly

and appropriately credi t full
periodic payments made by Plain tiff as of the date
of receipt. The erroneous board ing and
servicing caused FAB to make false statements of
material fact consisting of wron g postings of
interest and princ ipal payments and inflated monthly
billings that included improper late charges
and fees.

15 l . FAB has failed to send Plaint iff periodic statem

ents accurately detail ing
informatio n such as the amount due, how FAB will
break down and apply monthly payments, all
payments received since the last statement, the total
of all payments received since the beginning
of the current calendar year, all transaction activity
since the last statement, and the amou nt of
payments in a suspe nse or unapplied fu nds account.

152. The acts and practices described above constitute viola

tions of 15 U.S.C. § l 639f,
12 C.F.R. §§ 1026.36(c)(l)(i) and (ii), 1026.4 l (d).

153. TILA and its implement ing regulation , Regu lation Z,

at 12 C.F.R. § 1026.36(c)(l ),
prohi bit certa in acts and practices and contain certain
requirements relating to payment processing
in connection "with a consumer credit transaction secur
ed by a cons umer 's principal dwelling."
154. "Consumer credit" as defined by Regulation Z, 12
C.F. R. § 1026.2(a) (I2) means,
"cred it offered or extended to a cons umer primarily
for personal, family, or household purposes."

155. "Cre dit" as defined by Regu lation Z, 12 C.F.R. § 1026

.2(a) (14) means "the right
to defer payment of debt or to incur debt and defer its
payment."

25
 156. A "dwe lling" as defined by Regu lation Z, 12 C.F.R
. § 1026 .2(a) (19), means a
" residential structure that contains one to four units
, whet her or not that structure is attached to
real property. The term includes an individual cond
omin ium unit, coop erative unit, mobile home ,
and trailer, if it is used as a residence."

157. FAB is the servicer of cons umer credi t secured by

consu mers ' princ ipal dwellings
where it services mortgages that have been extended
to consumers primarily for personal, famil y,
or household purposes and secure cons umers' princ
ipal residentia l struc tures that contain one to
four units .

158. Plain tiff is entitled to the following dama ges for viola
tions of TILA by Defe ndan t
FAB: statu tory dama ges of not less than $400 nor
greater than $4000 pursu ant to 15 U.S.C. §
I640(a)(2)(A)(iv), and the costs of this action toget
her with a reasonable attor ney's fee as
determined by the Court, pursu ant to 15 U.S.C . § l
640(a)(3).

COU NT III-BREACH OF CON TRA CT

159. Plaint iff re-alleges and incorporates by reference all

preceding paragraphs.
160. The contract at issue is the HEL OC signe d by Plain
tiff with the Bank of Coral
Gables, whic h bank subsequently merg ed and/o r was
acquired by FAB.
161. The HEL OC, the written contract upon whic h F
AB relies for paym ents from
Plaintiff, states in relevant part, "to be effective any
change or amendment to this mortgage must
be in writing and must be signed by whoe ver will
be bound or obligated by the change or
amendment."

162. Pursuant to the HEL OC, the balance upon which the
finance charg e is applicable
is to be calculated as follows: "To get the daily balan
ce, we take the beginning balance of your

26
 Credit Line Acc ount, each day, add new
advances and subtract any payments or cred
its and any
unpaid finance charges."

163 . The HEL OC defines a specific "paymen

t due date " as "the date on the periodic
statement."

164. Since 2007, all statements and course of deal

ings relat ing to the HELOC designated
the I st of the following month as the paym
ent due date.
165. Since 200 7, and in the cou rse of business
deal ings relating to the HELOC, the 15th
of the prio r month was designated as the
date cuto ff for finance charges due by the
I st of the
following month.

166. Since 2007, and in the cou rse of business

dealings relating to the HELOC, an
"average daily balance" on the monthly state
ments was intended for purposes of illustrati
on only.
I67. FAB unilaterally changed the periodic
finance charge cuto ff dates.
168. FAB unilaterally added charges in
calculating the daily balance in contraventio
n of
the HELOC.

169. FAB employed inadequate and fa iled proc

esses and syst ems to board Plai ntif fs
loan , and proc eeded to erroneously serv
ice the loan without remedy ing the defi
ciencies in the
onboarding process.

170. F AB' s faulty serv icing included erroneou

s port ing of the mailing address of
Plaintiff, whi ch caused Plai ntiff to fail to
receive notices and monthly statements for
a period of
more than 5 months, unilateral change to
the payment due dates, unilateral change
to the cut-off
date for calculation of applicable interest
due each payment period, and erroneous
app lication of
pay men ts to interest and principal.

27
 171. If and whe n FAB properly took over the serv
icing of the loan, FAB assumed the
obligations of the HELOC.

172. The erroneous boarding and servicing caus

ed FAB to mak e false statements of
material fact consisting of wrong postings of
interest and principal payments and inflated
monthly
billings that included improper late charges
and fees.
173. FAB 's conduct represented a breach of the HEL
OC.
174. Alon g with the contractual breaches, FAB,
through its actions, also breached its
contractual cove nant of good faith and fair deal
ing.
175. The contractual covenant of good faith and
fair deal ing required each party to the
contract to be honest in its dealings and to not
purposefully take actions that would unfairly
prevent
othe r parties from enjo ying their rights or bene
fits under the contract or disappoi nt their reas
onable
expectations. Goo d faith and fair dealing in
conn ection w ith the discharg ing of perform
ance and
othe r duties according to their terms means
preserving the spir it-n ot mere ly the lett er~
f the
bargain. Evading the spiri t of the bargain
and abusing the pow er to specify term s cons
titutes
exam ples of bad faith in the performance of
contracts.

176. F AB was notified in writing on numerous occa

sions of the erro rs by Plai ntiff, and
failed time and time again to rectify the flaw
ed serv icing processes caus ing the incorrect data and
faulty reporting to continue.

177. FAB further breached the contractual cove nant

of good faith and fair dealing when
its representatives stated to Plai ntiff that the
errors had been corrected and issues rectified
whe n in
fact they had not.

178. . FAB, through its representatives, cont

inue d to breach the contractual cove nant of
good faith and fair deal ing by mak ing mate
riall y false assertions regarding the correctio
ns and

28
 rectification of servicing errors while awa re
that FAB's agents could not ascertain whether
or not
they were true or, in the alternative, while
F AB's agen ts knew or should have know n
that the
state ments were false and likel y to dam age
Plaintiff.
179. F AB knew that the continuation of such state
ments would interfere with Plai ntiff s
ability to establish cred itwo rthiness, a necessary
com pone nt for establishing paym ent alternatives
and financing as a principal guarantor of othe
r businesses.
180. In failing to disclose all information as requ
ired by law and requested by Plaintiff,
F AB willfully rendered imp erfec t perfo rman
ce, abused the pow er of the creditor in the
HEL OC
by unilaterally chan ging terms, failed to coop
erate and hindered Plai ntiff s performance,
and thus
materially breached the HEL OC before Plain
tiffs performance became due.

181 . FAB further brea ched the HELOC and the

contractual cove nant of good faith and
fair dealing contained therein by instituting flaw
ed boarding procedures, failing to prov ide writ
ten
notices to Plai ntiff as required, unilaterally chan
ging the terms of the loan, failing to remedy
faulty
paym ent calculations and applications of paym
ents received, starting from January 2015 thro
ugh
July 2016 that Plai ntiff was late each mon
th despite receiving payments as directed,
failing to
provide information to the Plai ntiff, as requ
ested repe ated ly to reme dy any issue , and, ultim
ately,
failing to cooperate and inter ferin g with Plai
ntiff s continued performance unde r the HE
LOC.
182. Plai ntiff has been serio usly and sign
ificantly harmed for dam ages by Defendant's
breach of the HEL OC in an amo unt to be prov
en at trial, but not less than $220,000.00.

COUNT IV-DE.FAMATION
183. Plai ntiff re-alleges and inco rporates by refer
ence all prec edin g para graphs.
184. Defendant owed Plai ntiff a duty not to publish
a false and defamatory state men t to
the credit repo rting agen cies.

29
 185. Defe ndan t breached that duty in deal ing
with Plai ntiff 's cred it information by
trans mitt ing and disse mina ting erro neou s,
false, and misleading information abou t the
HEL OC
loan to the cred it repo rting agen cies.

186. This breach by Defe ndan t caused Plaintiff

grea t harm in the natu re of both gene ral
com pens atory and spec ial dam ages pied, as
it impeded his abili ty to cond uct his busi ness
as lines
of cred it were clos ed and his abili ty to refin
ance the mor tgag e on the Subj ect Prop erty
was
impaired.

187. Defe ndan t assu red Plai ntiff that it wou ld corr
ect the erro rs that it had mad e and
repair the dam age caus ed to Plaintiff.

188. To date, Defendan t has take n no meaning

ful actio n to reme dy the harm done to
Plai ntiff as a resu lt of the defa mato ry statemen
t by Defe ndan t agai nst Plaintiff.

189. 15 U.S. C. § 1681 h(e), state s that "no cons ume

r may bring any actio n or proceedi ng
in the natu re of defa mati on ... with respect
to the repo rting of info rmat ion agai nst ... any
person
who furnishe s information ... exce pt as to false
infor mati on furnishe d with mali ce or willful
inten t
to injur e such cons ume r."

190. Proo f of mali ce unde r Florida law may be

esta blished indirectly. Defe ndan t's
pers isten t failure to corr ect Plain tiff's cred
it report in the face of repe ated requ ests by
Plain tiff to
do so, and in spite of its own promises, is evid
ence of malice. Mor gan v. Dun & Bradstree
t, Inc.,
421 F.2d 1241 , 1243 (5th Cir. 1970 ) ("[T
]he refu sal of the defe ndan t to retra ct or
to issue a
corr ecte d repo rt on requ est is likewise evid
ence of malice.") .

191. FAB has maliciously defa med Plain tiff, whic

h constitute a pattern or prac tice of
violation.

192. FAB is liable to Plai ntiff in an amo unt to be

prov en at trial.

30
 PRA YER FOR REL IEF

WH ERE FOR E, Plain tiff respectfully requests

that the Cour t:
1. Award such relie f as the Court finds necessary
to redress injur y to Plain tiff resulting from
Defe ndan t's viola tions of RES PA and TlLA
including but not limited to, rescission or
refor mation of contracts, restitution, the refun
d of mon ies paid , and the disgorgement of
ill-gotten gains;

2. Award Plain tiff monetary civil pena lties for

each viola tion ofRE SPA and TILA as alleged
in this Ame nded Complaint;

3. Award Plain tiff monetary dam ages for Defe

ndan t's breach of the HEL OC; and
4. Awa rd Plain tiff mon etary dam ages for Defe
ndan t's malicious defamation to his cred it and
impairme nt on his business lines of cred it, and
the impairment caus ed to his abil ity to
refinance his HEL OC loan on the Subj ect Prop
erty.
Plain tiff requests a trial by jury for all issues so
triable.
Dated: August 21, 20 I 7

Respectfully Subm itted,

By: Isl Brent S. Tantillo

Bren t S. Tantillo
btantillo(a),tantillo law.c om
T ANT ILLO LAW PLL C
1629 K Street, NW, Suite 300
Washington, DC 20006
Tele phon e: (786 ) 506-2991
(pro hac vice)

and

31
 Manjit Singh Gill
mgill(@.tantillolaw.com
6810 N. Stat e Road 7, Suite 300
Coconut Creek, FL 33073
Telephone: (954) 617-8188
Fax: (954 ) 246-5662

Atto rney s for Plai ntiff

CERTIFICATE OF SER VIC E

Counsel for Plai ntiff hereby certifies that a

true and correct copy of the foregoing was
delivered to the addresse e below via trans
miss ion of Noti ce of Electronic Filing gene
rated by
CM/ ECF on this 2l5t day of August, 2017 .

Henry H. Bolz, III

KELLER & BOLZ, LLP
Attorneys for First American Ban k
I21 Majorca A venue, #200
Coral Gables, FL 33134
Telephone: (305) 529- 8500
Telefax: (305) 529-0228
Email: hbolz@kellerbolz.com; ahart@keller
bolz.com

Isl Maniit S. Gill

Manjit S. Gill
Florida Bar No. 0189 60 l

32