Lawsuit against Lakeview Loan Servicing, LLC to stop a foreclosure in Alabama

Suing your mortgage company under the authority of your mortgage can be a very powerful tool to stop an Alabama foreclosure.

We explain why this is a secret that your mortgage company does not want you to know about.

But it is sometimes helpful to see something, not just hear about it.  So here is the text from a lawsuit we filed against Lakeview Loan Servicing, LLC to stop a foreclosure in Alabama.

These are the allegations — I’m sure Lakeview Loan Servicing will say they disagree.  That’s why we have courthouses — to handle the differences.

Hope you find this helpful and if we can help you in any way in Alabama, let us know.  You can call us at 205-879-2447 or fill out our contact form and we’ll get right back with you.

Thanks

John Watts

COMPLAINT

COMES NOW the Plaintiff  by and through his attorneys of record and files Plaintiff’s Complaint against Defendants and states as follows:

JURISDICTION AND VENUE

1. This is an action brought by a consumer for violations of the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq. [hereinafter “FDCPA”]), the Real Estate Settlement Procedures Act[1], 12 S.C. § 2605 (“RESPA”), the Truth in Lending Act (“TILA) and state law by the Defendant including an illegally scheduled foreclosure on December 4, 2017.
2. This lawsuit is also brought under the authority of Plaintiff’s Mortgage – the very paragraph that Defendants seek to use to foreclose expressly gives Plaintiff the right to bring this court action to assert defenses.
3. Paragraph 22 of the Mortgage allows for this lawsuit.
4. Venue is proper in this Court as Plaintiff resides in this County and all Defendants do business in this County.

PARTIES

5. The Plaintiff is a natural person who resides within this County.
6. Defendant Lakeview Loan Servicing, LLC (“Defendant” or “Lakeview”) in this action is a foreign corporation doing business in this County, and is considered a “servicer” under RESPA and is considered a debt collector under the FDCPA as it was assigned the debt at issue when the debt was allegedly in default and its in the business of collecting defaulted debts owned by others.
7. Fictitious defendants A-Z are those defendants who caused or are responsible for the harm done to Plaintiff. Any reference to “Defendant” or “Defendants” or “Defendant Lakeview” includes all fictitiously described defendants as well.

FACTS

8. RESPA and TILA apply to Defendants[2] and to the loan at issue in this case.
9. The FDCPA is a federal law that applies to debt collectors such as Defendant Lakeview.
10. It prohibits deceptive conduct of any type as well as harassing or unfair conduct, even on debts that are owed.
11. Here, Defendants made false statements to and their conduct can only be described as unfair and harassing.
12. Defendants have repeatedly violated the strict liability FDCPA.
13. Defendants are collecting on this debt illegally including the fact that the Defendants have scheduled an illegal foreclosure on December 4, 2017.

Defendants Were Never Assigned The Mortgage And Have No Right To Foreclose

14. For the sake of time, not every fact will be pled but enough will be to show that Defendant Lakeview does not own this debt and has no right to foreclose.
15. The mortgage – the document that secures the debt to the property – was signed on August 16, 2010.
16. It did not involve Defendant in any way.
17. It was between Plaintiff and MERS (Mortgage Electronic Registration Systems, Inc.).
18. On February 6, 2017, a “Corporate Assignment of Mortgage” was signed.
19. And filed in Probate Court on the same day.
20. It clearly shows the date of assignment as “February 6^th, 2017”.
21. “Assignor: PHH Mortgage Corporation at 1 Mortgage Way, Mt. Laurel, NJ 08054”.
22. “Assignee: Lakeview Loan Servicing, LLC at 4425 Ponce De Leon Blvd, MS 5-251, Coral Gables, FL 33146”.
23. The February 6, 2017, assignment was signed by “Jacqueline Watkins, Assistant Secretary”.
24. It was notarized by Regina D. Brundage in the State of New York, County of Erie.
25. “David Siwa” of “PHH Mortgage Corporation (PHHM) 220 Northpointe Pkwy prepared the document. Amherst, NY 14228”.
26. So on February 6, 2017, a signed and notarized and filed document clearly indicates PHH assigned the loan to Lakeview.
27. One problem.
28. PHH did not own the loan at this time.
29. A company, such as PHH, cannot assign what it does not own.
30. While this sounds like a bad joke of someone selling the Brooklyn Bridge, this is par for the course in the deceptive world of modern mortgage companies.
31. Remarkably, on February 22, 2017, the mortgage companies attempt to demonstrate time travel.
32. This is when a “Corporate Assignment of Mortgage” was signed, notarized and filed in Probate Court.
33. “Assignor: Mortgage Electronic Registration Systems, Inc. as nominee for USAA Federal Savings Bank, its successors and assigns at P.O. Box 2026 Flint, MI 48501-2026.”
34. Who did MERS assign the mortgage to on February 22, 2017?
35. “Assignee: PHH Mortgage Corporation at 1 Mortgage Way, MT Laurel, NJ 08054”.
36. What employee of MERS signed the document?
37. The same one who signed for PHH 16 days earlier on February 6, 2017.
38. “Jacqueline Watkins” who identified herself as only “Assistant Secretary”.
39. Was this document notarized?
40. Yes – by Regina D. Brundage of Erie County, New York.
41. Recognizing the impossibility of PHH assigning the mortgage on February 6, 2017, when it never received the mortgage until February 22, 2017, there is an interesting note in the February 22, 2017, assignment.
42. It says, “Legal: This Assignment of Mortgage should have been recorded before the assignment recorded on 02/06/2017 instrument #20170206000045120.”
43. That may (or may not) be true but recording date is the least of the problems.
44. There is no mention that the February 22, 2017, assignment – signed and notarized – should have been signed and notarized BEFORE the February 6, 2017, assignment was signed and notarized.
45. This is typical in the modern world of foreclosures. Mortgage companies play fast and loose with the facts, create bogus documents, and will lie and scheme to steal homes and brush aside any criticism as merely a typo.
46. It is unexplained how Jacqueline Watkins, Assistant Secretary (for some unknown company) can sign a document. Have it notarized. And filed. And then claim she apparently accidentally signed and had notarized and filed the wrong document.
47. Bottom line is if anyone has the assignment of the mortgage – which is doubtful – it would be PHH Mortgage.
48. PHH Mortgage has not sent a default letter.
49. Has not sent an acceleration letter.
50. Has not advised Plaintiff it is foreclosing.
51. Has not advertised in the paper of a foreclosure.
52. Has not set a foreclosure date.
53. Instead this stranger to the contract – Defendant Lakeview – has scheduled an illegal foreclosure.
54. Defendant Lakeview never sent a default letter as required by paragraph 22 of the mortgage.
55. Defendant Lakeview never sent a valid acceleration notice as required by paragraph 22.
56. The only attempt – illegal and ineffective – was a letter dated October 27, 2017, from a foreclosure law firm of McCalla Raymer Leibert Pierce, LLC.
57. This letter admits it is an attempt to collect a debt.
58. The first sentence is false – it states, “The above-referenced loan has been referred to this law firm by LoanCare, LLC (hereinafter “Mortgagee) to proceed with foreclosure.”
59. This is untrue.
60. LoanCare, LLC was not servicing the account as of October 27, 2017.
61. Lakeview claimed to be – but in fact was not as shown by the defective assignments listed above.
62. The foreclosure notice included with the defective acceleration letter claims that “Lakeview Loan Servicing, LLC” will do the foreclosure.
63. It falsely claims, “Said Mortgage was last sold, assigned and transferred to Lakeview Loan Servicing, LLC” in Instrument 20170206000045120 in the Office of the Judge of Probate of Shelby County, Alabama.
64. As noted above, this is a reference to the void and meaningless February 6, 2017, assignment from PHH to Defendant Lakeview.
65. PHH owned nothing at that time so it transferred a total of nothing to Defendant Lakeview.
66. In fact, the last assignment recorded in the Probate Court is the February 22, 2017, document that shows an assignment supposedly from MERS to PHH.
67. Not to Defendant Lakeview.
68. The notice goes on to falsely claim, and this was published in the Shelby County Reporter on November 1st, 8th, and 15^th that “Lakeview Loan Servicing, LLC” is the “holder of said mortgage”.
69. It is not.
70. If any company is, perhaps PHH if one assumes (which Plaintiff disputes) that MERS was capable of transferring anything to PHH.
71. The acceleration letter also fails to list the amount that has been accelerated.

The Illegally Threatened Foreclosure Of December 4, 2017

72. Plaintiff has not received any notification, other than shown above, regarding the alleged foreclosure to occur on Monday, December 4, 2017.
73. The mortgage requires that Plaintiff be sent a copy of a valid and accurate notice of sale that is to be published in the newspaper.
74. No such notice has been sent.
75. Instead Defendant Lakeview sent an incorrect and fraudulent notice of sale.
76. Despite all of this, it is the intention and design and plan of Defendant Lakeview to foreclose on December 4, 2017.

Non-Judicial Foreclosures In Alabama

77. There are two types of foreclosure in America.
78. By filing a complaint for foreclosure and having the Circuit Court rule that foreclosure is proper.
79. This is known as a “judicial foreclosure.”
80. Florida, for example, is a judicial foreclosure state where tens of thousands of foreclosures have been filed in the Circuit Courts.
81. The other way is a “non-judicial foreclosure” and this is used almost 100% of the time in residential foreclosures in Alabama.
82. In a non-judicial foreclosure, the Alabama Supreme Court has repeatedly reminded mortgage companies and foreclosure lawyers that the mortgage and the law must be strictly complied with in order to have the benefit of a non-judicial foreclosure.
83. A non-judicial foreclosure is of great advantage to mortgage companies, as they do not have to file a lawsuit.
84. Instead, it is akin to a vehicle repossession where there is no court involvement – hence the name of “non-judicial” foreclosure.
85. To get this great advantage, the mortgage company must strictly comply with all steps and laws.
86. Here are the steps that must be strictly complied with in order to do a non-judicial foreclosure.
87. First, the homeowner must truly be in default of loan.
88. Second, the company foreclosing must have actually been assigned the mortgage.
89. Third, the mortgage company must send a default letter (notice of default) that strictly complies with the mortgage. In this case, that is paragraph 22 of the mortgage.
90. Fourth, if the homeowner does not cure the default, then the loan must be accelerated in accordance with paragraph 22 of the mortgage.
91. Fifth, the foreclosure date and all information contained in the notice must be accurately and properly advertised in a newspaper in Shelby County for three consecutive weeks.
92. Sixth, the accurate and truthful notice of sale must be sent to homeowner.
93. If any step is not done strictly in compliance with the law and the mortgage, then the foreclosure fails and is invalid.

Defective Default Letter (Notice Of Default) Means No Foreclosure Can Occur

94. There is no default letter that has been sent and certainly no proper and accurate default notice that complies with paragraph 22 of the mortgage has been sent to Plaintiff.
95. Paragraph 22, the paragraph that gives the right to foreclose (assuming the mortgage and law are followed) requires that Plaintiff be told that Plaintiff has “the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.”
96. The Alabama Supreme Court ruled two months in Turner v. Wells Fargo that such a default letter that is invalid means any foreclosure flowing from it is invalid.

This Lawsuit Is Brought Under The Mortgage For A Court To Determine The Validity Of Any Default, Acceleration or Foreclosure

97. There is no default.
98. Defendant Lakeview does not own or possess the mortgage as only PHH, if anyone, has been assigned the mortgage per the assignment of February 22, 2017, from MERS to PHH.
99. Defendant Lakeview never has owned this debt and Defendant Lakeview has not properly followed the rules and laws in order to foreclose.

Remaining Factual Allegations

100. After Defendant Lakeview allegedly took over the loan, Defendant Lakeview decided to take Plaintiff’s house in an illegal foreclosure sale.
101. No valid default letter was sent as required by the mortgage to do a foreclosure.
102. No valid acceleration letter was sent as required by the mortgage to do a foreclosure.
103. No valid notice of sale was sent to Plaintiff, as required by the mortgage.
104. Defendant Lakeview refused to properly offer loss mitigation options as required by RESPA.
105. Defendant Lakeview refused to send accurate mortgage statements each month as required by RESPA and TILA.
106. Defendant Lakeview has a pattern and practice of violating RESPA, FDCPA, and TILA.
107. This is not an oversight on the part of Defendant Lakeview but instead is a deliberate and calculated plan in an effort to thwart the protections offered to consumers such as Plaintiff when dealing with an alleged mortgage loan.
108. Defendant Lakeview believes that very few, if any, consumers will take action based upon their violation of Federal and state laws.
109. The actions and inactions of Defendant Lakeview violate the TILA, FDCPA and RESPA as well as state law.
110. The loan at issue is a “debt” as that term is defined by 15 U.S.C. § 1692a(5).
111. Plaintiff alleges the debt was in default at the time the servicing rights were allegedly assigned or transferred to Defendants.
112. Defendants are in the primary business of collecting debts.
113. Defendants meet all requirements to be considered “debt collectors” under the FDCPA.
114. Defendants have continued to this very day to engage in debt collection activities against Plaintiff.
115. Misrepresentations were made regarding the character, amount, or legal status of the debt.
116. The amount of the debt, the amount of fees and charges, were incorrect and not supported by the law and by the note and mortgage.
117. The threatened foreclosure and other collection activities are illegal and constitute a threat to take action which Defendant Lakeview was not legally entitled to take or had no intention of taking.
118. The threatened foreclosure and other illegal collection activities are not authorized by the contract giving rise to the alleged debt.
119. Defendant Lakeview used false representations and/or deceptive means to collect on this debt.
120. The collection methods employed by Defendant Lakeview were harassing and illegal.
121. As a direct result of the acts complained of against Defendant Lakeview, Plaintiff has been caused to suffer, and will continue to suffer great mental anguish, damage to Plaintiff’s reputation, economic and emotional damages and claim from Defendant Lakeview all damages allowable under the law.
122. All employees and agents of Defendant Lakeview acted with the line and scope of their employment and/or agency relationship.
123. Defendant Lakeview has refused to apologize to Plaintiff for its misconduct against Plaintiff.
124. There is no right to foreclose and Plaintiff requests this Honorable Court rule that Defendant Lakeview has no such right to foreclose on December 4, 2017.

COUNT I

VIOLATIONS OF RESPA AND TILA

125. All paragraphs of this Complaint are incorporated as if fully set forth herein.
126. Defendant Lakeview is obligated to properly offer loss mitigation options to Plaintiff before foreclosing.
127. Defendant Lakeview refused to do this.
128. This is one of the numerous violations of RESPA by Defendant Lakeview.
129. Another example is the refusal to send compliant monthly mortgage statements, as required by RESPA and TILA.
130. Defendant Lakeview also failed to inform Plaintiff of transfers, including any allegedly occurring in February 2017.
131. Defendant Lakeview in this case has exhibited a pattern and practice of failing to comply with the Regulations.
132. As a result of this lack of compliance by the Defendant Lakeview, it is liable to Plaintiff for actual damages, statutory damages for each violation, costs and attorneys fees.
133. The violations of the law by Defendant Lakeview have resulted in mental anguish, emotional distress, financial loss, damage to credit, and other damages that will be identified in discovery.

COUNT II

VIOLATIONS OF THE FDCPA

134. All paragraphs of this Complaint are incorporated as if fully set forth herein.
135. Defendant Lakeview violated the entirety of the FDCPA including, but not limited to, Sections 1692d, 1692e, 1692e(4), 1692e(5), 1692e(8), 1692e(10), 1692e(11), 1692f, 1692f(1), 1692f(6), and 1692g as set forth in this Complaint.
136. As a result of Defendant Lakeview’s violations of the FDCPA, Plaintiff is entitled to actual damages; statutory damages; and reasonable attorney’s fees, expenses and costs from Defendant Lakeview.

COUNT III

BREACH OF CONTRACT

137. All paragraphs of this Complaint are incorporated as if fully set forth herein.
138. Defendant Lakeview had a contract with Plaintiffs but Defendant Lakeview breached any and all contracts with Plaintiff.
139. For example, Defendants failed to follow paragraph 22 of the mortgage.
140. Defendants failed to send a valid default letter.
141. Defendants refused to send a valid acceleration letter.
142. Defendants refused to advise Plaintiff of Plaintiff’s rights under paragraph 22 as paragraph 22 of the mortgage requires of defendants.
143. No money is owed so there is no right for Defendant Lakeview to collect or threaten foreclosure.
144. The other numerous violations of the contact will be identified in discovery.
145. Plaintiff has performed under the contract.
146. As a result of Defendant Lakeview’s breach of contract, Plaintiff is entitled to actual damages; statutory damages; and reasonable attorney’s fees, expenses and costs from Defendant Lakeview.

COUNT IV

DECLARATION THAT FORECLOSURE IS NOT ALLOWABLE

147. All paragraphs of this Complaint are incorporated as if fully set forth herein.
148. Because Defendant Lakeview has failed to follow the mortgage and because there is no default, the foreclosure should not be allowed to go forward.
149. Plaintiff is not in default.
150. Defendant Lakeview has no right to foreclose.
151. Pursuant to paragraph 22 of the mortgage, as well as the other parts of the contracts and under Federal and state law, Plaintiff requests a determination that foreclosure is not allowed.

COUNT V

NEGLIGENT, WANTON, AND/OR INTENTIONAL HIRING AND SUPERVISION OF INCOMPETENT DEBT COLLECTORS

152. All paragraphs of this Complaint are incorporated as if fully set forth herein.
153. Defendant Lakeview’s collectors are allowed and encouraged to break Alabama law in order to collect debts.
154. Defendant Lakeview is aware of the wrongful conduct of its agents and/or employees.
155. Defendant Lakeview negligently, wantonly, and/or intentionally hired, retained, or supervised incompetent debt collectors, who were allowed or encouraged to violate the law as was done to Plaintiff, and Defendant Lakeview is thereby responsible to the Plaintiff for the wrongs committed against Plaintiff and the damages suffered by Plaintiff.

COUNT VI

NEGLIGENT AND/OR WANTON CONDUCT

156. All paragraphs of this Complaint are incorporated as if fully set forth herein.
157. Defendant Lakeview had a duty, and assumed a duty, to treat Plaintiff fairly and with reasonable care.
158. Defendant Lakeview had a duty, and assumed a duty, to not unreasonably cause harm to Plaintiff when it began to collect against Plaintiff and threaten foreclosure.
159. Defendant Lakeview violated all of the duties Defendant Lakeview had and such violations were made wantonly.
160. This is especially true as there is not even a contract between Defendant Lakeview and Plaintiff.
161. It was foreseeable, and Defendant Lakeview did in fact foresee it, the actions of Defendant Lakeview would lead and did lead to the exact type of harm suffered by Plaintiff.

COUNT VII

INVASION OF PRIVACY

162. All paragraphs of this Complaint are incorporated as if fully set forth herein.
163. Alabama law recognizes Plaintiff’s right to be free from invasions of privacy and Defendant Lakeview violated Alabama state law as described in this Complaint.
164. Congress explicitly recognized a consumer’s inherent right to privacy in collection matters in passing the Fair Debt Collection Practices Act, when it stated as part of its findings:

Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

15 U.S.C. § 1692(a) (emphasis added).

165. Congress further recognized a consumer’s right to privacy in financial data in passing the Gramm Leech Bliley Act, which regulates the privacy of consumer financial data for a broad range of “financial institutions” including debt collectors (albeit without a private right of action), when it stated as part of its purposes:

It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a) (emphasis added).

166. Defendant Lakeview and/or its agents intentionally, recklessly, and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff, namely, by repeatedly and unlawfully attempting to collect a debt and thereby invaded Plaintiff’s privacy.
167. Defendant Lakeview and its agents intentionally, recklessly, and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of collecting this debt including threatening to take Plaintiff’s property, taking Plaintiff’s money and all other wrongful acts which will come to light in discovery, thereby invading and intruding upon Plaintiff’s right to privacy.
168. This includes any false credit reporting by Defendants on Plaintiff’s credit reports (which was made with malice, wantonness, and/or recklessness), the threats to foreclose, the illegal debt collection, and all other wrongful acts of Defendant Lakeview as outlined in this Complaint and as will be proven at trial.
169. The plan and scheme carried out by Defendant Lakeview exceeded the bounds of reasonableness that govern the collection of debts, as there is no right to collect thisnon-existentt debt and no right to threaten to foreclose.
170. Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs, and private financial information.
171. The conduct of Defendant Lakeview and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in multiple intrusions and invasions of privacy by the Defendant Lakeview which occurred in a way that would be highly offensive to a reasonable person in that position.
172. Plaintiff is entitled to actual damages in an amount to be determined at trial from Defendant
173. All invasions of privacy acts of Defendant Lakeview and its agents and/or employees were committed with malice, intent, wantonness, and/or recklessness and as such Defendant Lakeview is subject to punitive damages as well as nominal and compensatory damages.

RELIEF REQUESTED

            WHEREFORE, Plaintiff having set forth his claims for relief against each Defendant, respectfully prays of the Court as follows:

1. That Plaintiff have and recover against each Defendant a sum to be determined by a jury in the form of actual/compensatory damages; nominal damages; punitive damages; and statutory damages;
2. That each Defendant be enjoined from further violations of the law against Plaintiff;
3. This Honorable Court rule that there is no right to foreclose by Defendants;
4. That Plaintiff have reasonable attorney’s fees, costs, expenses; and
5. That Plaintiff have such other and further and proper relief as the Court may deem just and proper.

Respectfully Submitted,

 /s/John G. Watts                                

John G. Watts (WAT056)

Stan Herring (HER037)

Attorneys for Plaintiff

OF COUNSEL:

Watts & Herring, LLC

The Kress Building

301 19^th Street North

Birmingham, Alabama 35203

(205) 879-2447

(888) 522-7167 facsimile

john@wattsherring.com

stan@wattsherring.com

PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CAUSE.

/s/John G. Watts                                

Attorney for Plaintiff

Please serve Defendant by certified mail at the following address:

Lakeview Loan Servicing, LLC

c/o Corporation Service Company, Inc.

641 South Lawrence Street

Montgomery, Alabama 36104

[1] Any reference the FDCPA or RESPA or TILA or any part thereof encompasses all relevant parts and subparts thereto.

[2] Defendants have acted jointly and as agents for each other such that Plaintiff refers to the Defendants collectively.