In the circuit court of the 20th judicial district in and for lee county florida patrick lorne farrell, plaintiff, vs. G.M.A.C. Et al, Defendants STATE CASE NO. 07-ca-14942 judge joseph fuller november 30 4th amended complaint action to quiet title, criminal complaint for mortgage fraud short plain statement of facts 1. Plaintiff was the victim of a predatory loan and criminal acts in violation of state and federal law resulting in mortgage Fraud. Plaintiff is entitled to relief, and demands judgment. 2. Plaintiff contracted to get a construction loan for $280,000. Plaintiff deposited $15,000 into escrow, and the note became $265,000. Plaintiff went to closing and the defendants note was $286,000. Subsequently the loan servicer demanded $7,000 more without cause. Defendants illegally retained over $25,000 of Plaintiffs Money of Exchange and other costs. 3. The defendants herein similarly inflated Plaintiffs income, home appraisal and loan amount. 4. All in violation of Title 18, U.S.C. Sections 1014 and 2, sec. 1343 and 1344, F.S. 817.545. Concordant facts and charges 5. Several Criminal cases filed in Federal Court by the U.S. Atty. Contain the same criminal elements, and warrants charges to be filed against the defendant mortgage broker in this case. 6.2:09 cr-68-29dnf U.S.V. Wash. Oliviera-multiple borrower 7.2:09 cr-69-29dnf U.S.V. Fabricio montiero - loan originator 8.2:09 cr-78-29dnf U.S.V. Tiago oliviera-multiple borrower 9.2:09 cr-79-29dnf U.S.V. Damarys liorca-multiple borrower 10.2:09 cr-83-29dnf U.S.V. Contreras-mortgage broker 11.2:09 cr-84-29dnf U.S.V. Mark willberg-realtor 12.2:09 cr-89-29dnf U.S.V. Debra landberg-bank manager 13.2:09 cr-91-29dnf U.S.V. Theresa meulenberg-escrow manager 14.2:09 cr-92-29dnf U.S.V. Oscar antelo-mortgage broker 15.2:09 cr-97-29dnf U.S.V. Juan gonzalez - broker, loan officer parties 16. Plaintiff Patrick Farrell 2904 NW14TH TERRACE, CAPE CORAL, FL. 33993 17. Busey bank fl. 7980 Summerlin Rd. Ft. Myers, Fl. 33907, created the construction loan. 18. MORTGAGEWISE 6741 Buckingham Rd. Ft. Myers, Fl. 33905. Patrick Robinson/agent who converted the construction loan to an end loan with PINNACLE FINANCIAL. 19. Impac funding corp. 1401 dove st.#200-newport beach, ca. 92660; bought the loan from PINNACLE and securitized the end loan into a mortgage pool. 20. WELLS FARGO 1100 Virginia Dr. Ft. Washington, PA. 19034, is trustee of mortgage pool. 21. G.M.A.C. MORTGAGE LLC 1100 Virginia Dr. Ft. Washington, PA. 19034, serviced loan. 22. Fl. Default law group [fdlg] p.O. Box 25018 tampa, fl. 33622-5018, ATTORNEYs BRIANNA FINCH and Stanley Kurek are counsel for WELLS FARGO. 23. Plaintiff is a consumer and natural person for the purpose of this complaint within the meaning of The Federal Truth in Lending Act 15 U.S.C. 1601 et seq., Regulation Z, 226.2 (11) and Act 15 U.S.C. 1692, Fair Debt and Collection Practices Act. 24. Defendants at all material times hereto, are corporations doing business in the State of Florida including the creating and servicing of mortgage loans which in this instance, further constituted the collection of consumer debts subject to the provisions of the Federal Truth In Lending Act 15 U.S.C. 1602 (f) and the Fair Debt and Collection Practices Act 15 U.S.C. 1692 and defendants are a creditor and collector as defined. 25. Defendants BUSEY BANK and IMPAC FUNDING CORP were doing business in the State of Florida including origination of mortgage loans either directly or indirectly through agents, thus engaged in the business of extending consumer credit and collection of debts through its agents, and subject to the provisions defined by Federal Truth In Lending Act 15 U.S. C sec. 1602 (f), and a is creditor thereby definition. 26. Defendant MORTGAGEWISE via agent Patrick Robinson, was a mortgage broker located in Ft Myers Fl. Who took mortgage applications from prospective mortgagors, qualified such applications and presented them to lending institutions in order to induce them to loan money secured by a mortgage on residential real property in Lee Co. 27. Defendants WELLS FARGO BANK and GMACM LLC, both with its principal place of business at 1100 Virginia Dr.; Ft. Washington, Pa. 19034 was, a limited liability corporation, doing business in the State of Florida including the servicing of mortgage loans which constituted the collection of consumer debts, and subject to provisions of and as defined by the Federal Truth In Lending Act 15 U.S. C sec. 1602 (f) and is also a creditor. 28. Defendant GMACM LLC further is subject to RESPA 2605, as a loan servicing agent and subject to statutory requirements of section 6 of RESPA 2605 (e) which provides injured consumers the ability to seek redress up to 3 years after injuries from violations. 29. Defendant Fl. Default Law Group [FDLG] with its principal place of business at 9119 Corporate Lake Drive, Suite 300, Tampa, FL 33634, is and was at all times material hereto a professional corporation law firm/foreclosure mill organized under the laws of the State of Florida and was doing business in the State of Florida foreclosing mortgages. 30. Defendant FDLG is a Collector as defined under Fair Debt and Collection Practices Act and is engaged in regular practice and collection of consumer debts pursuant to 15 U.S.C. 1692, and thus subject further to the provisions of a collector and creditor as defined by the Federal Truth In Lending Act 15 U.S.C. 1602 (f). 31. Defendants were also, at all times material hereto, engaged in the business of consumer transactions within the State of Florida and is thus a seller, a supplier a creditor a collector as defined by the Federal Truth In Lending Act (15 USC sec. 1602 (f); and an enterprise, engaged in the business of effecting or soliciting consumer transactions. 32. Jurisdiction and venue 33. Jurisdiction of the subject matter in this Court is proper pursuant to 28U.S.C. Sec. 1331, as Plaintiff has sought relief under multiple Federal Statutes. 34. Jurisdiction of the Federal claims is proper in this Court pursuant to 15 U.S.C. Sec. 1601 et. Seq. And 15 U.S.C. Sec. 1640 (e). Jurisdiction over the state-law claims is proper under the doctrine of Supplemental or Pendent Jurisdiction pursuant to 28 U.S.C. Sec. 1367 (a). 35. The cause of action herein arose in Lee County, Florida by virtue of a mortgage loan and related inter-temporal transactions associated therewith which concern the Plaintiffs primary residential real estate which is located at 2904 NW 14TH TERRACE, CAPE CORAL, FL. 33993 which is located in Lee Co within this Judicial District damages exceed $15,000.36. Venue of this action is proper within this Court as at least one named Defendant is subject to suit within this Court, and thus all Defendants are properly sued in this Court. 37. STATEMENT OF FACTS COMMON TO ALL COUNTS 38.in June Plaintiff began the process of buying a home. 39. July 30, Defendant BUSEY BANK created the 1ST - HUD-1 Settlement Statement for a loan of $280,000. Plaintiff paid $15,000 in deposits to BUSEY BANK, and the note and TRUTH IN LENDING STATEMENT declared the loan was $265,600.40. Plaintiff paid $10,000 in interest charges for 15 months, until the house was built. 41. Plaintiff used defendant MORTGAGEWISE to broker the loan process. 42. Defendant made material misrepresentations on the relevant documents involved in the mortgage lending process including, note, mortgage, deed, surveys, inspection reports, uniform residential loan applications, appraisal reports; HUD-1 settlement statements; supporting personal documentation for loan applications such as IRS tax return, verifications of income and employment, credit reports, bank statements, and any required disclosures. 43. Defendant MORTGAGEWISE did knowingly make false statements and representations for the purpose of influencing PINNACLE FINANCIAL in connection with a loan application for property at 2904 NW14TH TERRACE CAPE CORAL, FL. 33993, in the inflated amount of $286,029.41; which action falsely represented; that: 44. [a] Plaintiff earned a purported monthly income of $7,500 for 12 years; 45. [b] that Plaintiff had an asset of a mobile home worth $20,000; 46. [c] that the purchase price of the home was $286,029, 41; 47. [d] that the appraisal of the subject property was $465,000; 48. Whereas, the defendant at the time knew that; 49. [a] the Plaintiff did not earn that amount of income, and had no evidence to support that; 50. [b] the mobile home was worth only $2,360, according to tax collector records; 51. [c] the purchase price was $265,600, as defined by BUSEY BANKS note and mortgage; 52. [d] the appraisal was based on un comparable properties containing upgraded features. 53. All in which, in truth and fact, the defendant well knew at the time was false. 54. All in violation of Title 18, U.S.C. Sec. 1014 and 2, sec. 1343 and 1344, and F.S. 817.545.55. Oct. 11, Defendant BUSEY BANK created a 2nd HUD-1 and the same loan was for an inflated amount of $286,029.41, instead of $265,600, as it had been for 15 months. 56. Defendant MORTGAGEWISE used the 2nd HUD-1 to get an end loan from PINNACLE. 57. Defendants intentionally failed to credit the $15,000 deposits of Plaintiffs money, and the builder added a bogus charge of $6,000 for extra dirt later proven to be false. 58. $280,000[original loan] - $15,000[plaintiffs deposit] = $265,000[Buseys Loan]. 59. $265,000[Buseys loan] $15,000[plaintiffs deposit added back illegally] $6,000[builders bogus dirt charge] = $286,000. This is the basis of dispute, nullifying the note and mortgage 60. Plaintiff paid $480 for extra dirt to the Seawall company and $2,670.41 at closing on 10/11, under duress, and the end loan was for $283,000, not $265,600.61. Defendants did not provide disclosure documents in Para. #42 to Plaintiff at closing. 62. November 9, Defendant IMPAC FUNDING CORP bought and recorded the note. 63. Defendant IMPAC FUNDING CORP and Defendant WELLS FARGO, entered into an agreement, whereby, inter alia, Defendant IMPAC FUNDING CORP would buyback the note in the event of legal violations occurring in the origination of the note, as in this case. 64. Plaintiff has a claim in recoupment in the contract of defendant IMPAC FUNDING CORP. 65. Defendant WELLS FARGO has a claim in recoupment from IMPAC FUNDING CORP. 66. Dec. 1 Defendant WELLS FARGO became trustee of the note in a mortgage pool. 67. March 1 Defendant GMACM LLC began servicing the note, mortgage, loan. 68. July 19 Defendant BUSEY BANK received Satisfaction of Mortgage. 69. Defendant BUSEY BANK received $283,000 for a loan payoff that required only $265,000.70. Defendant BUSEY BANK and MORTGAGEWISE kept Plaintiffs $18,000.71. From Jan. To July Defendant GMACM LLC, increased escrow demand by $7,128.72. From Jan. To July Plaintiff paid an additional $600 per month or more than required. 73.in late Plaintiff requested disclosure statements from the title company, discovered elements of Fraud from at the closing, and filed this suit, within the 3 year TILA window. 74. Dec. 5 Defendant WELLS FARGO, filed foreclosure, [case 07-CA-16767]. 75. April 1 Defendant WELLS FARGO assigned the mortgage and note to itself, by an alleged agent of MERS named Jeffrey Stephan, an employee of Defendant GMACM LLC. 76. On May 19th, the same Jeffrey Stephan, now purporting to be a Limited Signing Officer of GMAC swore an affidavit, in support of Defendant WELLS FARGO suit, that the amounts due and owing were based on a loan of $283,000.77. October 28 Defendant WELLS FARGO, received $25 BILLION in TARP funds for recoupment of bad loans within mortgage pools, such as in this case. 78. March 24 Defendant WELLS FARGO, received a summary judgement to take Plaintiff property, despite already recouping damages via the TARP funds, and IMPACs agreement. 79.in June GMACM LLC admitted, by letter to Plaintiff, that it had over-charged Plaintiff $7,128 in and Plaintiff would receive a refund check. That check has never been sent. 80. SUMMARILY, As a result of the closing and in connection therewith, Defendants placed the Plaintiff into a loan with a fraudulent amount of $18,000 more then needed, and charged an extra $7,128, intentionally misleading Plaintiff and engaging in material omissions by failing to disclose to Plaintiffs the fact that the nature of the mortgage loan application had been materially changed without Plaintiffs knowledge. 81. Defendants made numerous material representations to Plaintiff which Defendants knew to be false when made and which were made deliberately. Defendants made the material misrepresentations to Plaintiff with the specific intent that Plaintiff rely thereon. Plaintiffs did reasonably rely upon the affirmative representations of Defendants to his detriment. As a direct and proximate result of the misrepresentations which were made by Defendants, Plaintiff has and will continue to suffer damages. 82. Prior to the closing, Defendants failed to provide to Plaintiff the preliminary disclosures required by the Truth-In-Lending Act pursuant to 12 CFR (also known as and referred to herein as Regulation Z) sec. 226.17 and 18, and failed to provide the preliminary disclosures required by the Real Estate Settlement Procedures Act (RESPA) pursuant to 24CFR sec. 3500.6 and 35007, otherwise known as the GFE. 83. As a direct and proximate result of these failures to disclose as required by the Truth-InLending Act, Defendants BUSEY BANK and MORTGAGEWISE Fraudulently induced Plaintiff to sign the closing documents with an inflated amount of $286,029.41 or lose the home by sale to another, without preliminary disclosure, which is a per se violation of 12 CFR sec. 226.4 (a), 226.17 and 18 (d) and (c) (1) (iii). 84. Defendants were under numerous legal obligations as fiduciaries and had responsibility for overseeing the purported loan consummation to insure that the consummation was legal, proper, and that Plaintiff received all legally required disclosures pursuant to the Truth-In-Lending Act and RESPA both before and after the closing. 85. Plaintiff not being in the consumer lending, mortgage broker, or residential loan business, reasonably relied upon the Defendants to insure that the consumer credit transaction was legal, proper, and complied with all applicable laws, rules, and Regulations. 86. These transactions, designated as Loan No. 132030973, extended consumer credit which was subject to a finance charge and which was initially payable to the Defendants. 87. As part of the consumer credit transaction the subject of the closing, Defendants retained a security interest in Plaintiffs principal residential dwelling. 88. Defendants engaged in a pattern and practice of defrauding Plaintiffs in that, during the entire life of the mortgage loan, Defendants had actual knowledge that the Plaintiffs accounts were not accurate but Plaintiff make further payments based on Defendants inaccurate accounts. 89. Defendants also utilized amounts known to the Defendants to be inaccurate to determine the amount allegedly due and owing for purposes of foreclosure. 90. Said violations are thus a legal basis for and legally extend Plaintiffs right to exercise the remedy of rescission to either 3 years from the closing on Oct. 11.91. The affidavit in support of the summary judgment, made by Jeffrey Stephan of GMACM LLC, is a Fraud, the Amounts Due and Owing is incorrect, and theft of Plaintiffs $18,000.92. The filing of these false documents by attorneys working for Fl. Default Law Group, BRIANNA FINCH and STANLEY KUREK are acts of Fraud and RICO. 93. Pursuant to contract, IMPAC is required to buyback the loan, that has violations of law in the loan origination process, thereby granting WELLS FARGO recoupment. 94. On information and belief and given that the consumer credit transaction was an transaction with multiple assignments as part of an aggregation and the creation of a REMIC tranche itself a part of a predetermined CMO and/or CDS, all Defendants shared in the illegal proceeds of the transaction; conspired with each other to defraud the Plaintiff out of the proceeds of the loan; acted in concert to wrongfully deprive the Plaintiff of the residence; without providing Plaintiff reasonably equivalent value in exchange; and conducted an illegal enterprise within the meaning of the RICO statute. 95. On information and belief and given the volume of residential loan transactions solicited and processed by the Defendants, the Defendants have engaged in two or more instances of racketeering activity involving different victims but utilizing the same method, means, mode, operation, and enterprise with the same intended result. WHEREFORE, Plaintiff was victimized by acts of predatory lending, with damages of $200,000. The resulting loan, note, mortgage is null, void, and rescindable, thereby Plaintiff moves the Court to grant Quiet Title to Plaintiff free and clear of all encumberances remove WELLS FARGOS Lien in the Lee county records, and/or adjudicate the following claims. 96. Count 1: home ownership equity protection act 97. Plaintiff reaffirm and reallege paragraphs 1 through 95 hereinabove as if set forth more fully hereinbelow. All defendants. 98.in 1994, Congress enacted the Home Ownership Equity Protection Act (HOEPA) which is codified at 15 USC sec. 1639 et seq. With the intention of protecting homeowners from predatory lending practices targeted at vulnerable consumers. HOEPA requires lenders to make certain defined disclosures and prohibits certain terms from being included in home loans.in the event of noncompliance, HOEPA imposes civil liability for rescission and statutory and actual damages. 99. Plaintiff is a consumer and each Defendant is a creditor as defined by HOEPA.in the mortgage loan transaction at issue here, Plaintiff was required to pay excessive fees, expenses, and costs which exceeded the amount to be financed by $18,000, then $7,128.77.100. Pursuant to HOEPA and specifically 15 USC sec. 1639 (a) (1), each Defendant is required to make certain disclosures to the Plaintiffs which are to be made conspicuously and in writing no later than three (3) days prior to the closing. 101. Defendants violated HOEPA by numerous acts and material omissions, including but not limited to: failing to make correct disclosures on the HUD-1 in a conspicuous fashion; engaging in a pattern and practice of extending credit to Plaintiff without regard to the ability to repay in violation of 15 USC sec. 1639 (h). 102.By virtue of the Defendants multiple violations of HOEPA, Plaintiff has a legal right to rescind the consumer credit transaction pursuant to 15 USC sec. 1635. This Complaint is to be construed, for these purposes, as formal and public notice of Plaintiffs Notice of Rescission of the mortgage and note, and a Criminal Complaint. 103. As a direct consequence of and in connection with Plaintiffs legal and lawful exercise of their right of rescission, the true lender is required, [a]within twenty (20) days of Notice of Rescission, to: desist from making any claims for finance charges in the transaction; (b) return all monies paid by Plaintiffs in connection with the transaction to the Plaintiff; (c) satisfy all security interests, including mortgages
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