IN THE CIRCUIT COURT OF THE 18th JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR SEMINOLE COUNTY

CHARAN G. KUMAR, Counter-Plaintiff.
-v-

Case No. 10-CA-OOOOIO-14-G

ORIGINAL RECEIVED
TInS IS A COpy MARYANNE MORSE
LERK 0 THE C"U • S~M

WELLS FARGO BANK, N.A., INC.; SAND CANYON CORPORATION, f/k/a OPTION ONE MORTGAGE CORP.; SHAPIRO, FISHMAN & GACHE, LLP; GERALD SHAPIRO; BARRY FISHMAN; RONALD GACHE; JESSICA CONTE; NATALIE CURTS; Counter-Defendants. ____________________________~I

YL,
Oater

DEC ~ q 2011

FIRST AMENDED COUNTER-COMPLAINT 1. Counter-Plaintiff, CHARAN G. KUMAR, hereby sues Counter-Defendants, WELLS

FARGO BANK, N.A.; SAND CANYON CORPORATION, flkla OPTION ONE MORTGAGE CORP.; SHAPIRO, FISHMAN & GACHE, LLP; GERALD SHAPIRO; BARRY FISHMAN; RONALD GACHE; JESSICA CONTE; and NATALIE CURTS. DEMAND FOR JURY TRIAL 2. Counter-plaintiff hereby demands a trial by jury of all issues so triable as a matter oflaw.

TIJRlSDICTION 3. This is an action for damages brought for damages above the jurisdictional limit of this

court for violations of:

1. Common Law Fraud; II. Conspiracy to Defraud; III. Florida Statutes seetion 559.72; IV. 15 U.S.C. l692k(d) (federal fair debt collection practices); V. 15 U.S.C. 1641 (TILA) for which jurisdiction is conferred by 1640(e); VI. 24 C.F.R. 3500.21 {RESPA) jurisdiction conferred by 12 U.S.C. 2614; VII. Abuse of process;
VENUE 4. Venue is proper in the County of Seminole because that is where the cause of action

accrued and that is also where the subject property is located, pursuant to Florida Statutes section 47.011. PARTIES
Counter-Plaintiffs
5. Counter-Plaintiff, CHARAN G. KUMAR, (hereafter, "Kumar") is a resident of the State of Florida, County of Seminole: and he owns the property that is the subject of the complaint. Counter-Defendants 6. Counter-Defendant, WELLS FARGO BANK, N.A., ("Wells Fargo."), is an unknown type of business entity doing business in the State of Florida. Wells Fargo is also the plaintiff in this action and has sued the counter-plaintiff for foreclosure of the subject property.

7.

Counter-Defendant SAND CANYON CORPORATION, flkla OPTION ONE

MORTGAGE ("Sand Canyon") is a Florida foreign registered corporation with its principal place of business in California. It has owned and/or serviced thousands of mortgages that originated in the State of Florida.

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8.

Counter-Defendant SHAPIRO, FISHMAN & GACHE, LLP (hereafter, "Shapiro &

Fishman") is a Florida registered limited liability partnership. It's actual, as opposed to apparent, managing members are GERALD SHAPIRO, BARRY FISHMAN AND RONALD GACHE.

9.

Counter-Defendant GERALD SHAPIRO ("Shapiro") is an individual person who is a

Florida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro & Fishman") a Florida limited liability partnership acting as a law firm on behalf of Counter­ Defendant Wells Fargo. On information and belief he is a resident of the State of Florida. Gerald Shapiro directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

10.

Counter-Defendant BARRY FISHMAN ("Fishman") is an individual person who is a

Florida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro & Fishman") a Florida limited liability partnership acting as a law firm on behalf of Counter­ Defendant Wells Fargo. On information and belief he is a resident of the State of Florida. Barry Fishman directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

11.

Counter-Defendant RONALD GACHE ("Gache") is an individual person who is a

Florida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro & Fishman") a Florida limited liability partnership acting as a law firm on behalf of Counter­ Defendant Wells Fargo. On information and beliefhe is a resident of the State of Florida. Ronald Gache directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

12.

Counter-Defendant JESSICA CONTE ("Conte"), is a resident of the State of Florida, and

is an employee attorney working for Shapiro & Fishman and is sued in her individual capacity.

13.

Counter-Defendant NATALIE CURTS ("Curts"), is a resident of the State of Florida, and

is an employee attorney working for Shapiro & Fishman and is sued in her individual capacity.

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14.

GENERAL ALLEGATIONS
All conditions precedent to the bringing ofthis action have been performed, waived or

excused.

15.

Mr. Kumar is an obligor on a certain federally related mortgage loan secured on his

residence in the State of Florida. (Note: reference to "mortgage loans" means the mortgage note and security agreement.) Mr. Kumar does not know the identity of the true mortgagor and owner and holder of the note but he i8 confident is not one of the defendants or any entity referenced in this counter-complaint.

16.

Counter-Defendants Gerald Shapiro, Barry Fishman and Ronald Gache agreed to create

and did create an enterprise where agents of Defendant Shapiro & Fishman and Counter­ Defendant Sand Canyon (and possibly other entities) would create and execute false assignments of mortgages on cases wherein Counter-Defendant Shapiro & Fishman was the foreclosing attorney because it resulted in millions of dollars in fees to Counter-Defendant Shapiro & Fishman and Counter-Defendant Sand Canyon. These funds were reinvested in the various entities of the enterprise to assure continued operation. Counter-Defendant Shapiro & Fishman had an agreement with Counter-Defendant Sand Canyon wherein Counter-Defendant Shapiro & Fishman's agents would create these false assignments of mortgage, then the Counter-Defendant Shapiro & Fishman agents would act as agents of Counter-Defendant Sand Canyon - with the approval and consent of Counter-Defendant Sand Canyon - and execute those false assignments of mortgage in order to create the appearance of a legitimate transfer of an interest in a mortgage. Counter-Defendant Sand Canyon went along with this conspiracy to defraud scheme because it was paid money to do so. When done on a grand scale, this type of creation of fraudulent assignments is known as "robo··signing". Counter-Defendant Wells Fargo knew that false interests in mortgages were being fraudulently created in Counter-Defendant Wells Fargo's name by Counter-Defendant Shapiro & Fishman. Counter-Defendant Wells Fargo was a party to the conspiracy to defraud through i,ts intentionally acquiescence in this arrangement because it resulted in Counter-Defendant Wells Fargo's successful foreclosures of Florida real property. This practice impacted interstate commerce because all the loans were federally related and
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many of these properties were insured by federal government sponsored entities such as FannieMae, FreddyMac and the FHA.

17.

On March 18,2009, Dale M. Sugimoto, President of Counter-Defendant Sand Canyon,

executed a Declaration under penalty of perjury which was then filed in the United States Bankruptcy Court in the East District of Louisiana. Therein, Sugimoto clearly stated on the second page, line 6, that Sand Canyon did not own any residential real estate mortgages. (Exhibit "A")

18.

On and after March 1R, 2009, as a pattern and practice, Counter-Defendant Shapiro &

Fishman and its agents continued to create and execute many fraudulent assignments of mortgages on behalf of Counter-Defendant Sand Canyon. Through this post March 18, 2009 process, Counter-Defendant Shapiro & Fishman, its agents, and Counter-Defendant Sand Canyon sold and transferred Counter-Defendant Sand Canyon's alleged ownership interests in subject mortgage loans to various plaintiffs in actions wherein Counter-Defendant Shapiro & Fishman were plaintiff's counsel.

19.

Counter-Defendants Shapiro & Fishman, its agents, and Counter-Defendant Wells Fargo

used the U.S. Mails and interstate wires to send these false and fraudulent assignments to various defendants in foreclosure actions and to the courts for filing in order to convince the judges and parties that Counter-Defendant Wells Fargo had a legitimate ownership interest in the subject mortgage loans. This falsely bolstered all the foreclosure cases, improved debt collection and assured judgments of foreclosure against these defendants.

20.

On or about January 8, 2010 Counter-Defendant Wells Fargo through their attorneys,

Counter-Defendant Shapiro & Fishman and its agents, filed a complaint for foreclosure in Seminole county against Kumar. This complaint is case number 10-CA-0000IO-14-G and it was signed by Counter-Defendant Conte. In the complaint, Counter-Defendant Wells Fargo falsely claimed that it obtained either the right to enforce the subject mortgage loan or that it
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owned the subject mortgage loan, by way of an assignment from Counter-Defendant Sand Canyon.

21.

Counter-Defendant Conte was under an affirmative duty to make a reasonable

investigation of the facts to de:ternline whether or not the assignment of the mortgage upon which case number Case No. 1O-CA-OOOO 10-14-G was based was true or false. Her employer, Counter-Defendant Shapiro & Fishman and their actual managing members Counter-Defendants Gerald Shapiro, Barry Fishman and Ronald Gache, as Florida licensed attorneys, were also under an affirmative duty to ensure that proper policy and procedures were in place to permit their attorneys to exercise discretion to reject pleadings that impaired candor to the tribunal and parties. However, Counter-Defendants Gerald Shapiro, Barry Fishman and Ronald Gache knew that if reasonable investigative procedures were in place that it would make their scheme to defraud very difficult, if not impossible to carry out as attorneys exercising their own independent judgment and ethics would very likely not file the fraudulent assignments and complaints based thereon. At the time that Counter-Defendant Conte signed this complaint, she knew or should have known the assignment was false. Counter-Defendant Conte was a party to the conspiracy to defraud because she signed the complaint regardless of its truth or falsity. She signed it because Counter-Defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and Ronald Gache created either a written policy or an unwritten policy and a pattern of practice wherein its attorneys employment would be negatively affected if those attorneys refused to sign complaints merely because of false assignments and Counter-Defendant Conte didn't want her employment to be negatively affected.

22.

After being served with the foreclosure complaint, Mr. Kumar advised Counter-

Defendant Shapiro & Fishman and Counter-Defendant Conte that the foreclosure case was clearly based on a fraudulent assignment of mortgage and that he demanded corrective action be taken and the debt verified pursuant to the federal fair debt collection practices act. Counter­

Defendant Conte intentionally failed to take corrective action to remove the false assignment of mortgage from the court record and failed to advise the court and parties of the false nature of the
6

assignment of mortgage out of fear of her employment being negatively affected by Counter­ Defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and Ronald Gache.

23.

On or about March 26,2010, Counter-Defendant Curts sent written debt verification

through the U.S. Mails to Mr. Kumar which included copies of documents purporting to validate the alleged debt. (Exhibit B) These documents were also signed by agents of Counter-Defendant Sand Canyon. These documents included a false assignment of the subject mortgage loan executed by the dual agents of Counter-Defendant Sand Canyon and Counter-Defendant Shapiro
& Fishman. The debt validation letter was signed by Counter-Defendant Curts and it falsely

misrepresented that Counter-Defendant Wells Fargo owned and held an interest in Mr. Kumar's mortgage loan.

24.

The false validation letter was intended to collect a debt not owed by Mr. Kumar to

Counter-Defendant Wells Fargo and to Counter-Defendant Shapiro & Fishman. The purported validation letter demanded payments of amounts not authorized by any contract or order of the Court. These include "FORECLOSURE ATTORNEYS FEES AND COSTS" of$3,531.00, APPRAISAL FEE of$100.00, "BORROWER INTERVIEW FEE" OF $65.00, and "CORPORATE ADVANCE" of $80.00. The validation letter was also confusing because it stated that Counter-Defendant Shapiro & Fishman represented American Home Mortgage Servicing, Inc. and it demanded that Mr. Kumar make payoff to American Home Mortgage Servicing, Inc. and not to Counter-Defendant Wells Fargo.

25.

Counter-Defendant Wells Fargo claims an interest in the Kumar mortgage loan as trustee

of the REMIC trust known as "Option One Mortgage Loan Trust 2007-FXD2" (hereafter, the "trust"). However, neither Counter-Defendant Wells Fargo or Counter-Defendant Sand Canyon have or had an interest in the subject mortgage loan for several reasons. First, the trust closed on March 1, 2007 and the subject mortgage loan had not been transferred into the trust by the closing date. Second, the trustee is prohibited from acting ultra vires to transfer the subject mortgage loan into the trust afte:r the closing date. (Note: The Servicing and Pooling Agreement
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for the Trust can be found at the following website: http://www.secinfo.com/ dqTm6.u134.c.htm#lstPage.) Third, the assignment of mortgage by Counter-Defendant Sand Canyon is false. Fourth, the indorsements on the note are false, fraudulent and unauthorized.

26.

Counter-Defendant Wells Fargo and its agents made negative credit references on Mr.

Kumar's credit, they sent dunning letters to Mr. Kumar claiming that it was the rightful owner of his mortgage. Mr. Kumar relied on these misrepresentations to his detriment as he paid monies to Counter-Defendant Wells Fargo. The false assignment of mortgage was a material misrepresentation designed to bolster the false belief in Mr. Kumar that Counter-Defendant Wells Fargo was the rightful owner of the Kumar mortgage. When Mr. Kumar questioned Counter­

Defendants Wells Fargo, Shapiro & Fishman and its agents about the legitimacy of Counter­ Defendant Wells Fargo's ownership in his mortgage, those Counter-Defendants responded with further dunning letters and misrepresentations that the debt owed to Counter-Defendant Wells Fargo was legitimate.

27.

Mr. Kumar initially relied upon these false and fraudulent misrepresentations to his

detriment when he conveyed this information to his wife and it caused extreme marital discord between them as it was learned that he had made a financially devastating error in failing to ensure that their mortgage was held by its true owner, by making payments to Wells Fargo when in fact, those were wasted funds that were not going to the true owner and that the ownership of their residence was at substantial risk. This resulted in great emotional suffering, loss of companionship, loss of enjoyment of life, loss of consortium, disruption to his children with uncertainty as to where they would live and go to school, and physical discomfort in loss of appetite, loss of sleep and irritable digestive symptoms. COUNT I
COMMON LAW FRAUD
Counter-Plaintiff Kumar v. All Counter-Defendants
28. Counter-plaintiff Kumar reaffIrms and re-alleges paragraphs 1 through 27 herein above as

if set forth fully herein below.
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29.

At all times material hereto, counter-defendants Sand Canyon, Wells Fargo, Shapiro &

Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts had actual knowledge that their written statements as to alleged ownership of Mr. Kumar's mortgage loan by Wells Fargo, the written statements as to the assignment of mortgage, the legal entitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were false statements of material fact which were false when made and known by said counter-defendants to be false when made.

30.

Counter-defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and Ronald

Gache directed and controlled the conduct of counter-defendants Jessica Conte and Natalie Curts, who made the subject false statements with the specific intent that Mr. Kumar rely thereon and with the separate specific intent, which separate specific intent was unknown to Mr. Kumar at the time, to defraud Mr. KUill ar.

31.

Mr. Kumar reasonably rdied upon the written statements of counter-defendants and acted

thereon, including but not limited to paying monies to Counter-Defendant Wells Fargo, advising his spouse of the financially devastating error he made in reliance upon the material misstatements.

32.

As a direct and proximate result of the actions and course of conduct of Counter-

Defendants, Mr. Kumar has suffered damages.

33.

The fraudulent conduct engaged in by the Counter-Defendants constitutes a separate and

independent tort separate and apart from any breach of any contract.

34.

The deliberate and concerted actions engaged in by the counter-defendants as set forth

above and under the circumstances set forth above constitutes the type of fraud for which attorneys' fees are awarded, and as such, Plaintiffs demand the assessment of their attorneys' fees
9

against the Defendants. Baya v. Central and Southern Florida Flood Control District, 184 So.2d 501 (Fla. 2d DCA 1966)

35.

WHEREFORE, Counter-Plaintiff Kumar demands the entry of Final Judgment against

the Counter-Defendants for compensatory damages, interest, costs, attorneys' fees, and any other and further relief which is just and proper under the totality ofthe circumstances.

COUNT II
CONSPIRACY TO DEFRAUD
Counter-Plaintiff Kumar v. All Counter-Defendants
36. Counter-plaintiff Kumar reaffirn1s and re-alleges paragraphs 1 through 27 herein above as

if set forth fully herein below.

37.

At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &

Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts agreed, between and among themselves and in combination with each other and various agents, as to each overt act in furtherance of the conspiracy and enterprise, to engage in unlawful actions for a common purpose, to wit: to perpetrate a fraud upon Mr. Kumar through fraudulent written representations as to the ownership of the mortgage, amounts due thereon, threats of foreclosure and fraudulent foreclosure filings whereby the Counter-Defendant Wells Fargo would obtain the use and benefit, under fraudulent pretenses, of Mr. Kumar's real property at the expense of Mr. Kumar and without compensating Mr. Kumar therefor; to unlawfully convert Mr. Kumar's real property and permanently deprive him thereof; and to cause all deleterious consequences of the Counter-Defendants' actions to be saddled upon Mr. Kumar, which consequences include but are not limited to the loss of real property; loss of money; the incurring of expenses; and the adverse effects of claimed defaults and foreclosures placed on his and his families emotional stability; and the loss of Mr. Kumar's credit as negative reports were made thereon by the Counter­ Defendants.

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38.

At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &

Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts had actual knowledge that their written statements as to alleged ownership of Mr. Kumar's mortgage loan by Wells Fargo, the written statements as to the assignment of mortgage, the legal entitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were false statements of material fact which were false when made and known by said counter-defendants to be false when made.

39.

Counter-defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and Ronald

Gache directed and controlled the conduct of counter-defendants Jessica Conte and Natalie Curts, who made the subject false statements with the specific intent that Mr. Kumar rely thereon and with the separate specific intent, which separate specific intent was unknown to Mr. Kumar at the time, to defraud Mr. Kumar.

40.

Mr. Kumar reasonably relied upon the written statements of counter-defendants and acted

thereon, including but not limited to paying monies to Counter-Defendant Wells Fargo, advising his spouse of the financially devastating error he made in reliance upon the material misstatements.

41.

As a direct and proximate result of the overt, concerted, and conspiratorial actions of the

counter-defendants, counter-plaintiff has suffered significant damages well in excess ofthe jurisdictional limit of this Court.

42.

The conspiracy to defraud and convert engaged in by the counter-defendants constitutes a

separate and distinct independent tort which is separate and apart from any breach of any contract.

43.

The deliberate and concerted actions engaged in by the counter-defendants as set forth

above and under the circumstances set forth above constitutes the type of fraud for which
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attorneys' fees are awarded, and as such, counter-plaintiff demands the assessment of attorneys' fees against the counter-defendants. Baya v. Central and Southern Florida Flood Control District, 184 So.2d 501 (Fla. 2d DCA 1966)

44.

WHEREFORE, Counter-Plaintiff Kumar demands the entry afFinal Judgment against

the Defendants for compensatory damages, interest, costs, attorneys' fees, and any other and further relief which is just and proper under the totality of the circumstances.

COUNT III
VIOLATION OF FLORIDA CONSUMER COLLECTION PRACTICES ACT
FLORIDA STATUTES SECTION 559.72, et. seq.
Counter-Plaintiff Kumar v. All Counter-Defendants
45. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below.

46.

F.S. 559.72(9) provides (in pertinent part): Prohibited pract.ices generally. In collecting consumer debts, no person shall: (9) Claim, attempt, or threaten to enforce a debt when such person ... assert(s) the existence of some other legal right when such person knows that the right does not exist.

47.

At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &

Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts had actual knowledge that their written statements as to alleged ownership of Mr. Kumar's mortgage loan by Wells Fargo, the written statements as to the assignment of mortgage, the legal entitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were false statements of material fact which were false when made and known by said counter-defendants to be false when made.
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48.

All Counter-Defendants have claimed, attempted to enforce a debt, or threatened to

enforce a debt when such persons knew the debt was not legitimate and did not exist. They asserted the existence of the right to enforce the debt in the name of Counter-Defendant Wells Fargo when they knew that the right did not exist.

49.

As a direct and proximate result of the actions of the Counter-Defendants, Mr. Kumar has

suffered significant damages \vell in excess of the jurisdictional limit of this Court.

50.

WHEREFORE, Counter-Plaintiff Kumar demands the entry of Final Judgment against

the Defendants for compensatory damages, interest, costs, attorneys' fees, and any other and further relief which is just and proper under the totality of the circumstances. COUNT IV
VIOLATION OF 15 US.c. §1692
Federal Fair Debt Collection Practices Act (FDCPA),
Counter-Plaintiff Kumar v. All Counter-Defendants
51. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below.

52.

Counter-Plaintiff Kumar is a consumer within the meaning of the FDCPA, 15 U.S.C.

§1692a(3).

53.

Counter-Defendants Sand Canyon, Wells Fargo, Shapiro & Fishman, Gerald Shapiro,

Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts are debt collectors within the
meaning of the FDCPA, 15 U.S.C. § l692a(6).

54.

At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &

Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts had actual knowledge that their written statements as to alleged ownership of Mr. Kumar's mortgage
13

loan by Wells Fargo, the written statements as to the assignment of mortgage, the legal entitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were false statements of materia1 fact which were false when made and known by said counter-defendants to be false when made.

55.

These Counter-Defendants and their agents violated 15 U.S.C. §1692d by engaging in

conduct the natural consequence of which is to harass, oppress, or abuse any person, and which did harass, oppress and abuse Mr. Kumar by falsely representing the character, amount, or legal status of the debt (15 U.S.C. § 1692e(2»; by sale or transfer of an interest in the debt that caused the consumer to lose any claim or defense to payment of the debt, and in particular, by obfuscation of the true creditor (15 U.S.C. § 1692e(6»; by communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed (15 US.c. § 1692e (8»; by the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer (15 US.C. §1692e(10); by the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or pern1itted by law (15 U.S.C. § 1692f(1»; by taking or threatening to unlawfully repossess or disable the consumer's property (15 US.c. § 1692f(6»; by, within five days after the initial communication with counter-plaintiff in connection with the collection of any debt, failing to send counter-plaintiff a written notice containing a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will. obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor (15 US.c. § 1692g).
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56.

WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages against

Counter-Defendants Sand Canyon, Wells Fargo, Shapiro & Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts for actual or statutory damages, and punitive damages, attorney's D;!eS and costs, pursuant to 15 D,S.C. § 1692k. COUNT V
VIOLATION OF TRUTH IN LENDING ACT (TILA),
15 U.S.C. §1641
Counter-Plaintiff Kumar v. Counter-Defendant Wells Fargo
57. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below. 58. 15 U.S.c. §1641(g) requires: (1) In general In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including­ (A) the identity, addres:;, telephone number of the new creditor; (B) the date of transfer; (C) how to reach an agent or party having authority to act on behalf of the new creditor; (D) the location of the place where transfer of ownership of the debt is recorded; and (E) any other relevant iufornlation regarding the new creditor.

59.

Counter-Defendants Wells Fargo failed to provide Mr. Kumar with notice of an

assignment of the mortgage loan in violation of 15 U.S.C. §1641(g).

60.

WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages against

Counter-Defendant Wells Fargo for damages, fees and costs as provided by law pursuant to 15 U.S.C. § 1640(a). COUNT VI
REAL ESTATE SETTLEMENT
PROCEDURES ACT (RESPA), 24 C.P.R. 3500.21(d)

15

Counter-Plaintiff Kumar v. Counter-Defendants Wells Fargo and Sand Canyon 61. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below.

62.

Counter-Defendant Sand Canyon represented that Counter-Defendant Sand Canyon

transferred the note and mortgage andlor the servicing of the note and mortgage to Counter­ Defendant Wells Fargo. However, neither of these Counter-Defendants ever sent, and Mr. Kumar never received, notice of transfer or assignment of the note and mortgage or of the servicing of the note and mortgage.

63.

Counter-Defendants Wells Fargo and Sand Canyon failed to provide any notice to Mr.

Kumar of a transfer in servicing in violation of 24 C.F.R. § 3500.21 (d), which requires: Notices of Transfer; loan servicing. (1) Requirement for notice. (i) Except as provided in this paragraph (d) (1 )(i) or paragraph (d)(1 )(ii) of this section, each transferor servicer and transferee servicer of any mortgage servicing loan shall deliver to the borrower a written Notice of Transfer, containing the information described in paragraph (d)(3) of this section, of any assignment, sale, or transfer of the servicing of the loan. The following transfers are not considered an assignment, sale, or transfer of mortgage loan servicing for purposes of this requirement if there is no change in the payee, address to which payment must be delivered, account number, or amount of payment due: (A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions of servicers or subservicers; and (C) Transfers between master servicers, where the subservicer remains the same. (2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii) of this section: (A) The transferor servicer shall deliver the Notice of Transfer to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan; (B) The transferee servicer shall deliver the Notice of Transfer to the borrower not more than 15 days after the effective date of the transfer; and (C) The transferor and transferee servicers may combine their notices into one notice, which shall be delivered to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan. (ii) The Notice of Transfer shall be delivered to the borrower by the transferor servicer or the transferee servicer not more than 30 days after the effective date of the transfer of the servicing of the mortgage servicing loan in any ca:3e in which the transfer of servicing is preceded by: (A) Termination of the contract for servicing the loan for cause; (B) Commencement of
16

proceedings for bankmptcy of the servicer; or (C) Commencement of proceedings by the Federal Deposit Insurance ... 64. WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages against

Counter-Defendants Wells Fargo and Sand Canyon for damages, fees and costs as provided by law.

COUNT VII
ABUSE OF PROCESS
Counter-Plaintiff Kumar v. Counter-Defendant Wells Fargo, Shapiro & Fishman and Conte.
65. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below.

66.

Counter-Defendants Wells Fargo, Shapiro & Fishman and Conte made an illegal,

improper, or perverted use of process.

67.

Counter-Defendants Wells Fargo, Shapiro & Fishman and Conte had an ulterior motive or

purpose in exercising the illegal, improper or perverted process.

68.

Counter-Plaintiff was injured as a result of Counter-Defendant's actions.

69.

Counter-Defendants have no legal justification to bring an action to try to foreclose upon

his property.

70.

WHEREFORE, Plaintiflprays for judgment against Counter-Defendants Wells Fargo,

Shapiro & Fishman and Conte as follows:

I.

II.
III.

IV. V.

General Damages; Consequential Damages; Actual Damages; Costs; Attorney's fees if and when an attorney is hired to represent Plaintiff; and
17

VI.

Such other relief as this Court deems just and proper.
I /'"

Char'

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by U.S. mail on the 9th day of December, 2011, to Ian Luthringer, the law finn of Hinshaw & Culbertson, LLP, 50 N Laura St Ste 2200, Jacksonville, Florida 32202-3625 for WELLS FARGO BANK, N.A.; and to Jessica Conte of Shapiro, Fishman & Gache, LLP, 4630 Woodland Corporate Blvd., Suite, 100, Tampa, FL 33614 for WELLS FARGO BANK, N.A., INC., SAND CANYON CORPORATION, j1k!a OPTION ONE MORTGAGE CORP., SHAPIRO, FISHMAN & GACHE, LLP, GERALD SHAPIRO, BARRY FISHMAN, RONALD GACHE, JESSICA CONTE, and NATALIE CURTS.

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