hernandez class action v nationstar and us bank amended complaint

7/28/2019 Hernandez Class Action v NationStar and US Bank Amended Complaint

1/55

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JULIANNA INES HERNANDEZ, )also known as INES HERNANDEZ, )on behalf of plaintiff and a class, ) 12-CV-9587

)Plaintiff, )

) Judge Rebecca R. Pallmeyervs. ) Magistrate Judge Arlander Key

)NATIONSTAR MORTGAGE LLC, )and U.S. BANK, AS TRUSTEE, FOR )CERTIFICATEHOLDERS OF )SECURITIZATION TRUST LXS )SERIES 2007-2N, )

)Defendants. )

AMENDED COMPLAINT CLASS ACTION

INTRODUCTION

1. Plaintiff brings this action to secure redress for improper con

connection with the servicing of her residential mortgage. Defendant Nationstar M

a mortgage servicer acting on behalf of mortgage owner U.S. Bank, as Trustee, for

Certificateholders of Securitization Trust LXS Series 2007-2N, sent plaintiff a defe

under 15 U.S.C. 1692g, refused to recognize a modification of plaintiffs mortgage

treated the mortgage as being in default, improperly refused to take plaintiffs paym

sent plaintiff inaccurate rate change notice.

2 Plaintiff allegesviolationof theFair DebtCollectionPractice

Case: 1:12-cv-09587 Document #: 17 Filed: 12/17/12 Page 1 of 55 Pag


2/55

J URISDICTION AND VENUE

3. This Court has jurisdiction under 28 U.S.C. 1331 (general fe

question), 15 U.S.C. 1692k (FDCPA), 15 U.S.C. 1640 (TILA), 28 U.S.C. 1337

commerce) and 28 U.S.C. 1367 (supplemental jurisdiction).

4. Personal jurisdiction and venue are proper in this District bec

action concerns real estate located in Chicago and because defendants do business i

PARTIES

5. Plaintiff Julianna Ines Hernandez, also known as Ines Hernan

(Hernandez) is an individual who resides in a home which she owns in Chicago, I

6. Hernandez is the debtor in a Chapter 13, 11 B 32641, filed A

2011.

7. Nationstar Mortgage LLC (Nationstar) is a limited liability

company chartered under Delaware law with its principal place of business in Texa

business in Illinois. Its registered agent and office is Illinois Corporation Service C

Stevenson Drive, Springfield, IL 62703.

8. Nationstar holds itself out as a special servicer, that is, one

specializes in collecting mortgages that are either delinquent or in default. It states

site (http://www.nationstarspecialservicing.com/)that Our state-of-the-art propriet

management system incorporates sophisticated models and NPV analysis to provide

mitigation solutions



3/55

involved with them.

10. As of December 31, 2011, Nationstar had a servicing portfo

$45.8 billion in unpaid principal balance, and serviced another $7.8 billion under co

11. Defendant Nationstar Mortgage LLC, as a regular part of its

activities, acquires ownership or servicing of loans which are delinquent.

12. During 2009-2011, between 14% and 20% of Nationstar Mo

portfolio, amounting to thousands of loans, was at least 60 days delinquent. Many o

were delinquent when Nationstar first became involved with them.

13. Nationstar Mortgage LLC uses the mail and telephone system

such delinquent loans.

14. Nationstar Mortgage LLC is a debt collector as defined in the

15. U.S. Bank, as Trustee, for Certificateholders of Securitization

Series 2007-2N (U.S. Bank, Trustee, LXS Series 2007-2N) is the owner of the p

mortgage. U. S. Bank may be served at 209 South La Salle Street, Chicago, Illino

FACTS

16. In March 2012, plaintiff obtained a loan modification from A

FSB, which was servicing her mortgage at the time. (Exhibits A-E)

17. The modification was approved by the Bankruptcy Court in A

(Exhibit F)

18 Plaintiff had sought bankruptcy relief after fallingbehindon

Case: 1:12-cv-09587 Document #: 17 Filed: 12/17/12 Page 3 of 55 Page


4/55

19. In July-August 2012, servicing of the loan was transferred to

20. On or about July 15, 2012, Nationstar sent plaintiff the letter

Exhibit G.

21. Exhibit G is a form letter used by Nationstar for the purpose

the verification notice required by 15 U.S.C. 1692g.

22. Nationstar did not send plaintiff any other letter for the purpo

providing the verification notice required by 15 U.S.C. 1692g.

23. On or about August 2, 2012, Nationstar sent plaintiff the noti

rate and monthly installment changes attached as Exhibit H.

24. Exhibit H did not accurately state the terms or effect of the m

25. On or about August 23, 2012, Nationstar sent plaintiff the no

interest rate and monthly installment changes attached as Exhibit I.

26. Exhibit I did not accurately state the terms or effect of the mo

27. On or about August 20, 2012, Nationstar sent plaintiff a mon

statement (Exhibit J) which was based on the premise that the loan had not been mo

was in default.

28. On or about October 4, 2012, Nationstar sent plaintiff the not

interest rate and monthly installment changes attached as Exhibit K.

29. Exhibit K did not accurately state the terms or effect of the m

30 On or aboutNovember 1 2012 Nationstar sentplaintiff the



5/55

32. On or about November 13, 2012, Nationstar sent the letter att

Exhibit M, returning plaintiffs monthly payments pursuant to the modified mortgag

the funds are insufficient to resolve the delinquency on your account. This also wa

the premise that the loan had not been modified.

33. Nationstar regularly reports the status of its loans to credit bu

34. On information and belief, Nationstar reported the status of p

loans to credit bureaus in a manner consistent with the notices and correspondence

plaintiff, and in a manner inconsistent with the actual status of the loan.

35. Plaintiff suffered emotional distress and aggravation as a resu

Nationstars actions.

36. Plaintiff was required to hire an attorney and spend time and

dealing with Nationstars actions.

37. U.S. Bank, Trustee, LXS Series 2007-2N, as the owner of th

is liable for the acts of its mortgage servicer, Nationstar.

COUNT I FDCPA CLASS CLAIM

38. Plaintiff incorporates paragraphs 1-37.

39. This claim is against Nationstar.

40. Exhibit G violates 15 U.S.C. 1692g, in that:

a. It requires that any dispute be made in writing, which

requiredby15USC 1692g



6/55

with the name and address of the original creditor, if

the current creditor.

41. Section 1692g provides:

1692g. Validation of debts

(a) Notice of debt; contents. Within five days after the initial comwith a consumer in connection with the collection of any debt, a d

collector shall, unless the following information is contained in thcommunication or the consumer has paid the debt, send the conswritten notice containing--

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty dreceipt of the notice, disputes the validity of the debt, or athereof, the debt will be assumed to be valid by the debt c

(4) a statement that if the consumer notifies the debt colwriting within the thirty-day period that the debt, or any thereof, is disputed, the debt collector will obtain verificat

debt or a copy of a judgment against the consumer and a verification or judgment will be mailed to the consumer bcollector; and

(5) a statement that, upon the consumer's written requethirty-day period, the debt collector will provide the consuthe name and address of the original creditor, if different current creditor.

(b) Disputed debts. If the consumer notifies the debt collector inwithin the thirty-day period described in subsection (a) that the dportion thereof, is disputed, or that the consumer requests the naaddress of the original creditor, the debt collector shall cease coldebt or any disputed portion thereof until the debt collector obt



7/55

subsection (a) unless the consumer has notified the debt collectorthat the debt, or any portion of the debt, is disputed or that the co

requests the name and address of the original creditor. Any colleactivities and communication during the 30-day period may not or be inconsistent with the disclosure of the consumer's right to ddebt or request the name and address of the original creditor.

(c) Admission of liability. The failure of a consumer to dispute tha debt under this section may not be construed by any court as aof liability by the consumer.

(d) Legal pleadings. A communication in the form of a formal pcivil action shall not be treated as an initial communication for pusubsection (a).

(e) Notice provisions. The sending or delivery of any form or notdoes not relate to the collection of a debt and is expressly require

Internal Revenue Code of 1986 [26 USCS 1

et seq.], title V of GLeach-Bliley Act [15 USCS 6801et seq.], or any provision of FState law relating to notice of data security breach or privacy, orregulation prescribed under any such provision of law, shall not ban initial communication in connection with debt collection for pthis section.

CLASS ALLEGATIONS

42. Plaintiff brings this claim on behalf of a class, pursuant to Fe

23(a) and 23(b)(3).

43. The class consists of (a) all individuals with Illinois addresse

were sent a document in the form represented by Exhibit G by Nationstar (c) relatin

owner-occupied residential property (d) which letter was sent at any time during a

beginning one year prior to the filing of this action and ending 20 days after the filin

action



8/55

45. There are questions of law and fact common to the class mem

common questions predominate over any questions relating to individual class mem

predominant common question is whether Exhibit G complies with the FDCPA.

46. Plaintiffs claim is typical of the claims of the class members

based on the same factual and legal theories.

47. Plaintiff will fairly and adequately represent the class membe

has retained counsel experienced in class actions and FDCPA litigation.

48. A class action is superior for the fair and efficient adjudicatio

matter, in that:

a. Individual actions are not economically feasible.

b. Members of the class are likely to be unaware of their

c. Congress intended class actions to be the principal en

mechanism under the FDCPA.

WHEREFORE, the Court should enter judgment in favor of plaintiff

and against defendant Nationstar for:

(1) A declaration that Exhibit G violates the FDC

(2) Statutory damages;

(3) Attorneys fees, litigation expenses and costs

(4) Such other and further relief as the Court deem

COUNT II FAIR DEBT COLLECTION PRACTICESACT INDIVIDUA



9/55

51. Nationstar violated 15 U.S.C. 1692e, 1692e(2), 1692e(8), 1

1692f, and 1692f(1), by:

a. Misrepresenting the status and amount of the loan;

b. Demanding payment of amounts not due;

c. Refusing to accept proper payments;

d. Communicating inaccurate information to credit bure

52. Section 1692e provides:

1692e. False or misleading representations [Section 807 of

A debt collector may not use any false, deceptive, or mislerepresentation or means in connection with the collection of any Without limiting the general application of the foregoing, the folconduct is a violation of this section:

(2) The false representation of--

(A) the character, amount, or legal status of any

(8) Communicating or threatening to communicate to any peinformation which is known or which should be known to be falsthe failure to communicate that a disputed debt is disputed. . . .

(10) The use of any false representation or deceptive means toattempt to collect any debt or to obtain information concerning a. .

53. Section 1692f provides:

1692f. Unfair practices [Section 808 of P.L.]

A debt collector may not use unfair or unconscionable mecollect or attempt tocollect any debt Without limiting the gener



10/55

amount is expressly authorized by the agreement creatingpermitted by law. . . .


Nationstar for:

(1) Actual damages;



(4) Such other or further relief as the Court deems

COUNT II I TRUTH IN LENDING ACT INDIVIDUAL CLAIM


55. This claim is against Nationstar and U.S. Bank, Trustee, LX

2007-2N.

56. Defendants inaccurate rate change notices violated 12 C.F.R

1026.20(c).

57. Section 1026.20(c) provides:

1026.20 Subsequent disclosure requirements.

. . . (c) Variable-rate adjustments. Except as provided in paragrathis section, an adjustment to the interest rate with or without a

corresponding adjustment to the payment in a variable-rate transubject to 1026.19(b) is an event requiring new disclosures to thAt least once each year during which an interest rate adjustmentimplemented without an accompanying payment change, and at no more than 120, calendar days before a payment at a new levefollowingdisclosures asapplicable must be deliveredor placed



11/55

(3) The extent to which the creditor has foregone any increase inrate.

(4) The contractual effects of the adjustment, including the paymafter the adjustment is made, and a statement of the loan balanc

(5) The payment, if different from that referred to in paragraph section, that would be required to fully amortize the loan at the nrate over the remainder of the loan term. . . .


Nationstar for:

(1) Actual damages;




COUNT IV BREACH OF CONTRACT INDIVIDUAL CLAIM


59. This claim is against Nationstar and U.S. Bank, Trustee, LX

2007-2N.

60. Defendants violated the terms of the modification when Natio

to honor it, misrepresented the status and amount of the loan, demanded payment of

due, refused to accept proper payments, and communicated inaccurate information t

bureaus.

WHEREFORE the Court should enter judgment in favor of plaintiff



12/55

(2) Costs of suit;


COUNT V INTERFERENCE WITH CONTRACT INDIVIDUAL C


62. This claim is against Nationstar.

63. Nationstar caused or induced the breach of the modification a

its principal, U.S. Bank, Trustee, LXS Series 2007-2N, when, acting as agent for U

Trustee, LXS Series 2007-2N, Nationstar refused to honor it, misrepresented the sta

amount of the loan, demanded payment of amounts not due, refused to accept prope

and communicated inaccurate information to credit bureaus.


Nationstar for:

(1) Actual damages;

(2) Punitive damages;

(3) Costs of suit;


COUNT VI CONSUMER FRAUD ACT INDIVIDUAL CLAIM


65. This claim is against both Nationstar and U.S. Bank, Trustee

2007-2N


C 1 12 09587 D # 17 Fil d 12/17/12 P 13 f 55 P


13/55

loan, demanding payment of amounts not due, refusing to accept proper payments,

communicating inaccurate information to credit bureaus.

67. Such conduct was contrary to public policy, oppressive, and


defendants for:

(1) Actual damages;

(2) Punitive damages;



s/Daniel A. EdelmanDaniel A. Edelman

Daniel A. EdelmanCathleen M. Combs

James O. LatturnerTara L. GoodwinRupali R. ShahEDELMAN, COMBS, LATTURNER

& GOODWIN, LLC120 S. LaSalle Street, Suite 1800Chicago, Illinois 60603-3593(312) 739-4200

(312) 419-0379 (FAX)Email address for service: [email protected]

J URY DEMAND

Plaintiffdemandstrialby jury


C 1 12 09587 D t # 17 Fil d 12/17/12 P 14 f 55 P


14/55

NOTICE OF LIEN AND ASSIGNMENT

Please be advised that we claim a lien upon any recovery herein for amount as a court awards. All rights relating to attorneys fees have been assigned

s/Daniel A. Edelman

Daniel A. Edelman

Daniel A. EdelmanEDELMAN, COMBS, LATTURNER

& GOODWIN, LLC120 S. LaSalle Street, 18th FloorChicago, Illinois 60603(312) 739-4200(312) 419-0379 (FAX)


Case: 1:12 cv 09587 Document #: 17 Filed: 12/17/12 Page 15 of 55 Pag


15/55

CERTIFICATE OF SERVICE

I, Daniel A. Edelman, certify that onDecember 17, 2012, or as soonservice may be effectuated, I caused a true and accurate copy of the foregoing doserved, via hand delivery by process server, on the following parties:

U.S. Bank, as Trustee for Certificateholders of Securitization Trust LXS Ser209 South La Salle StreetChicago, Illinois 60604.

Nationstar Mortgage LLCc/o Registered Agent Illinois Corporation Service, Co.801 Adlai Stevenson DriveSpringfield, IL 62703

s/Daniel A. EdelmanDaniel A. Edelman

Daniel A. EdelmanCathleen M. CombsJames O. LatturnerTara L. GoodwinRupali R. ShahEDELMAN,COMBS,LATTURNER &GOODWIN,LLC120 South LaSalle Street, Suite 1800

Chicago, Illinois 60603(312) 739-4200(312) 419-0379 (FAX)


Case: 1:12-cv-09587 Document #: 17 Filed: 12/17/12 Page 16 of 55 PageID #:113


16/55



17/55



18/55



19/55



20/55



21/55



22/55



23/55



24/55



25/55



26/55



27/55



28/55



29/55



30/55



31/55



32/55



33/55



34/55



35/55



36/55



37/55



38/55



39/55



40/55



41/55



42/55



43/55



44/55



45/55



46/55



47/55



48/55



49/55



50/55



51/55



52/55



53/55



54/55



55/55

hernandez class action v nationstar and us bank amended complaint

Documents