VERIFIED

COMPLAINT TO VACATE FINAL

JUDGMENT OF FORECLOSURE, FOR FRAUD, DAMAGES,

INJUNCTIVE RELIEF, AND OTHER RELIEF

Plaintiffs sue Defendants to vacate a Final Judgment of Foreclosure, for fraud, damages,
injunctive relief, and other relief, and state:

A.Parties and Jurisdiction

This is an action for damages, injunctive relief, and other relief which is properly brought
within this Court as the real property the subject of this action is situated within Rockland
County, Massachusets.

Plaintiffs are and were at all times material hereto sui juris citizens and residents of the
YOUR COUNTY OF RESIDENCE and over the age of eighteen (18).

Defendant YOUR BANK, but is subject to the jurisdiction of this Court pursuant to the
YOUR STATE long-arm statute, ___________ as it transacted business in this
jurisdiction deliberately by lending money for a refinance of real property located in this
YOUR COUNTY and instituting a foreclosure proceeding in YOUR STATE as to real
property.

Defendant ADDITIONAL DEFENDANT , on information and belief, a corporation

which is subject to the jurisdiction of this Court pursuant to ______________ by virtue of
deliberately transacting business in this jurisdiction through the acquisition of real
property located in YOUR STATE nd initiating eviction proceedings incident to such
property in THIS JURISDICTION as well.

All transactions and occurrences material hereto took place in ___________ County,
_________________.

A.Material Facts Common to All Counts

Plaintiffs, who are not and have never been engaged in the business of extending
consumer loans, originally closed on a fixed-rated mortgage loan with Defendant in
YEAR in connection with the refinance of residential real property located at ADDRESS

Defendant ’s pre-closing Truth-In-Lending Statement presented to Plaintiffs affirmatively

represented that the interest rate on the loan was 12.881%. At all times material,
Defendant ESB knew that the loan was not an “interest only” loan.

1
REVIEW FOLLOWING TEXT AND REPLACE WITH FACTS SPECIFIC TO
YOUR CASE

Defendant ESB’s pre-closing Truth-In-Lending Statement disclosed to Plaintiffs also

affirmatively represented that the monthly payments on the loan were to be reduced from
$1,716.92 to $1,605.97 as of October 30, 2006; further reduced to $1,499.17 as of June
30, 2008; further reduced to $1,397.45 as of February 28, 2010; and reduced again to
$1,301.71 as of October 28, 2011, with a final payment of $1,272.71 due on September
28, 2033.

Plaintiffs relied upon the affirmative disclosures and representations of Defendant ESB in
agreeing to close on the mortgage loan.

However, and despite repeated demand by Plaintiffs, Defendant ESB failed to provide
Plaintiffs with a copy of the fully executed closing documents for in excess of three (3)
years following the closing. Defendant ESB also failed to provide the Mortgage
Servicing Disclosure Statement to Plaintiffs either at closing or within the legally
prescribed three business days of receiving the loan, having only provided the subject
MSDS some 4 and ½ years after closing.

Despite Plaintiffs having made their mortgage payments, Defendant ESB failed to apply
any portion of the payments toward principal and failed to reduce principal in
contradiction to the affirmative representations of Defendant ESB in its pre-closing
Truth-In-Lending Statement.

In June of 2005, Defendant ESB charged Plaintiffs $983.50 for “legal fees” for an alleged
foreclosure even though Plaintiffs were not in arrears or default of the mortgage.

Plaintiffs contacted Paul Buckingham, an authorized representative of Defendant ESB, as

to the wrongful attorneys’ fee charge and the failure of Defendant ESB to apply any
portion of Plaintiffs’ mortgage payments to principal. Plaintiffs also forwarded written
correspondence to Defendant ESB’s counsel detailing the errors then known to Plaintiffs.

Defendant ESB and its counsel failed to respond to the Plaintiffs as to the wrongful
charge for attorneys’ fees, failure of Defendant ESB to apply any portion of Plaintiffs’
payments to principal, and other errors.

Defendant ESB further wrongfully and unilaterally changed Plaintiffs’ interest rate to
$13.99% on the loan without any authorization from or consent of Plaintiffs.

Plaintiffs experienced financial difficulties in the latter part of 2006, and were one month
late on the mortgage payment.

Pursuant to the closing documents, Plaintiffs’ mortgage payments were due at the end of
each month.

2
When Plaintiffs sent their September 30, 2006 payment to Defendant ESB (which was
more than what was owed), Defendant ESB returned same claiming that an additional
$247.00 was owed, thus intentionally setting up Plaintiffs for being two months behind in
their mortgage instead of accepting the payment and billing Plaintiffs for the additional
$247.00.

The following day, Plaintiffs received papers from Defendant ESB indicating its intention
to foreclose.

Defendant ESB thereafter agreed to a forbearance of the foreclosure.

The forbearance agreement called for, among other things, a payment of $2,300.00 for
the February, 2007 mortgage payment, which the Plaintiffs did make.

Plaintiffs continued to make payments pursuant to the forbearance agreement including

an additional $247.00 which Defendant ESB claimed was owed from an alleged prior
balance.

At all times material, Defendant ESB was aware, and agreed, to accept payment of the
mortgage payments which accrued during the forbearance period when Plaintiffs were
able to access certain funds from an annuity, which was anticipated to be in or about mid-
April, 2007.

Plaintiffs made Defendant ESB aware of the fact that the monies were coming from the
subject annuity and that the checks were only cut on certain days of the month but which
exact dates were unknown in advance to the Plaintiffs.

Plaintiffs made the March, 2007 payment on April 2, 2007. Despite making such
payment, Defendant ESB, through its attorney Potter, claimed not to have received the
subject payment and threatened to foreclose on April 18, 2007.

Despite the fact that the forbearance amount to be paid was $11,529.61, Defendant ESB’s
agent attorney Erik Potter, Esq. demanded a payment from Plaintiffs of $23,500.00.

When Plaintiffs questioned attorney Potter as to the source of this increased amount
(which was demanded by attorney Potter without explanation), attorney Potter reduced
the figure to $21,177,60, but without explanation or breakdown as to how this sum was
computed.

Despite Plaintiffs tendering to attorney Potter a cashier’s check for $21,177.60 payable to
Defendant ESB (which attorney Potter accepted) and Plaintiffs making numerous
attempts to contact attorney Potter for a breakdown of the demanded amount, attorney
Potter never provided any such breakdown.

Plaintiffs continued to experience difficulties with Defendant ESB, and sought the
services of a credit counselor.

3
Although Plaintiffs continued to make payments to Defendant ESB throughout 2008,
Defendant ESB continued to threaten foreclosure claiming that Plaintiffs were “late” as to
payments which were allegedly due by the 15th of the month when in fact Plaintiffs
never consented to, approved, or executed any agreement which changed their payment
date from the end of the month to the 15th of the month.

Defendant ESB also continued to wrongfully return checks sent by Plaintiffs to

Defendant ESB, with Defendant ESB returning the checks not to the address of Plaintiffs,
but to the address of Plaintiffs’ neighbor. Defendant ESB intentionally engaged in such
conduct for the purpose of attempting to manufacture a fraudulent default and a create an
alleged posture to institute foreclosure.

Defendant ESB continued to demand the payment of additional sums from the Plaintiffs
without backup or documentation as a condition of canceling any foreclosure, which
Plaintiffs did pay, including a lump sum payment of $12,000.00 to Defendant ESB on
August 18, 2008 on the express understanding that such payment cancelled all
foreclosure intentions of Defendant ESB.

Despite having complied with the demands of Defendant ESB, counsel for Defendant
ESB continued to threaten foreclosure, and by letter of September 19, 2008 notified
Plaintiffs that the foreclosure was simply “postponed” from September 18, 2008 until
October 20, 2008.

On October 7, 2008, a representative of Defendant ESB telephoned Plaintiffs and

affirmatively represented to Plaintiffs that Defendant ESB had agreed to put any claimed
arrearage on the “back end” of the loan, but wanted Plaintiffs to accelerate their payment
date by 15 days before it was otherwise and normally due per the closing documents.

Although Plaintiffs did not accede to the accelerated payment date requested by
Defendant ESB, Defendant ESB nonetheless agreed, on October 9, 2008 through and
with the same representative of Defendant ESB who spoke to Plaintiffs on October 7,
2008, to permit Plaintiffs to keep their current payment due date (which was, as set forth
above, the end of the month; the grace period being to the 15th of the following month).
This representative of Defendant ESB also affirmatively represented to Plaintiffs “not to
worry about” the September 19, 2008 letter from Defendant ESB’s counsel which
purported to reschedule the date of the foreclosure sale.

The representative of Defendant ESB advised the Plaintiffs that the current amount due
was $2,008.86.

<!--[if !supportLists]-->37. <!--[endif]--> Although Plaintiffs tendered a check to

Defendant ESB for $2,009.00 by express mail on October 29, 2008, Defendant ESB
wrongfully returned the subject payment, sending it not the to Plaintiffs, but to the
Plaintiffs’ neighbor, and having returned the payment without explanation.

4
Plaintiffs attempted to make the subject payment again with a cashier’s check. However
and despite such efforts which were made by the Plaintiffs in reasonable reliance on the
prior express affirmative representations of the representative of Defendant ESB,
Defendant ESB conducted a foreclosure sale of the Property on October 20, 2008, selling
the Property to Defendant PII.

Notwithstanding that Plaintiffs complied with the forbearance agreement, made payments
pursuant thereto, and even overpaid Defendant ESB pursuant to the demands of its
agent/attorney Potter for all sums demanded by him, Defendant ESB wrongfully,
illegally, and unlawfully foreclosed on Plaintiffs’ property through a pattern of
manufacturing alleged “defaults” on payment schedules never agreed to by Plaintiffs;
unilaterally altering the alleged sums due at the last minute; wrongfully refusing tender of
payments; and failing to properly credit payments toward the mortgage loan.

Defendant PII subsequently acquired title to the property following the wrongful
foreclosure by Defendant ESB, and is currently attempting to obtain possession of the
property and force the Plaintiffs to undertake measures to remediate the property in the
Housing Court.

The property is the Plaintiffs’ residence which the Plaintiffs intend to seek to repossess.
Further action of the Housing Court needs to be stayed or abated in order to maintain the
status quo of the property pending the resolution of the legality of the underlying
foreclosure.

A.Claims for Relief

FIRST CLAIM FOR RELIEF
Plaintiffs reallege and reincorporate paragraphs 1 through 41 hereinabove as if set forth
more fully hereinbelow.

As set forth above, Defendant ESB made numerous material representations to Plaintiffs
which Defendant ESB knew to be false when made and which were made deliberately
and intentionally.

Defendant ESB made the subject material misrepresentations to Plaintiffs with the
specific intent that Plaintiffs rely thereon.

Plaintiffs did reasonably rely upon the affirmative representations of Defendant ESB to
their detriment.

As a direct and proximate result of the material misrepresentations which were made by
Defendant ESB, Plaintiffs have suffered damages.

SECOND CLAIM FOR RELIEF

Plaintiffs reallege and reincorporate paragraphs 1 through 35 hereinabove as if set forth
more fully hereinbelow.

5
As set forth above, Defendant ESB wrongfully acquired title to the property the subject
of this action through a pattern of intentional fraudulent conduct; the fraudulent
manufacturing of defaults; and the intentional demand for monies to which it was not
legally entitled.

Pursuant to Mass.R.Civ.P. 60(b)(3), Plaintiffs are entitled to bring this action to request
that the Court vacate and set aside the Final Judgment of Foreclosure which was procured
by fraud.

Plaintiffs also request that the Final Judgment of Foreclosure be set aside pursuant to
Mass.R.Civ.P. 60(b)(6), as to do so is appropriate to accomplish the ends of justice under
the circumstances.

This claim is brought within one year of the entry of the Final Judgment of Foreclosure,
and is thus timely.

THIRD CLAIM FOR RELIEF

Plaintiffs reallege and reincorporate paragraphs 1 through 35 hereinabove as if set forth
more fully hereinbelow.

This is an action and claim for relief which is brought pursuant to G.L. 93A for damages
and injunctive relief.

Plaintiffs are “persons” within the meaning of G.L. 93(A)(1)(a).

The actions of Defendant ESB constitute unfair and deceptive practices engaged in by a
business within the course of trade or commerce within the meaning of G.L. 93(A)(1)(b).

The presuit notice provisions of G.L. 93(A)(9)(3) are not applicable as to Defendant ESB
as said Defendant does not maintain a place of business or keep assets within the
Commonwealth of Massachusets.

Pursuant to G.L. 93(A)(9)(1), Plaintiffs are entitled to seek remedies of damages and
injunctive relief.

As a direct and proximate result of the unfair and deceptive practices of Defendant ESB
as set forth above, Plaintiffs have suffered and continue to suffer damages.

FOURTH CLAIM FOR RELIEF

Plaintiffs reallege and reincorporate paragraphs 1 through 35 hereinabove as if set forth
more fully hereinbelow.

As the Plaintiffs have lost their home through the fraudulent acts and practices of
Defendant ESB which have permitted Defendant PII to commence eviction and other
proceedings, Plaintiffs have a clear legal right to seek injunctive relief.

6
Plaintiffs have a likelihood of success on the merits of their claims against Defendant
ESB that the foreclosure instituted thereby was fraudulent and subject to being vacated
and set aside.

If the injunctive relief requested herein is not granted, Plaintiffs will suffer irreparable
harm in the form of loss of their home and further actions of the Housing Court, for
which damages is an inadequate remedy as the home is unique.

The granting of the injunctive relief requested herein is in the public interest.

Under the circumstances where Defendant PII has only acquired title to the property
through the fraudulent and unfair and deceptive conduct of Defendant ESB, Plaintiffs
should not be required to post any bond as a condition of being granted injunctive relief.

WHEREFORE, Plaintiffs pray as follows:

As to their FIRST CLAIM FOR RELIEF, an award of money damages;

As to their SECOND CLAIM FOR RELIEF, the entry of an Order or Judgment vacating
and setting aside the Final Judgment of Foreclosure previously entered in favor of
Defendant ESB;

As to their THIRD CLAIM FOR RELIEF, the entry of an injunction prohibiting any
further post-foreclosure proceedings by any party and for an award of money damages
including any multiple of damages as provided by G.L. 93A, costs, and attorneys’ fees;
and

As to their FOURTH CLAIM FOR RELIEF, the entry of a temporary and permanent
injunction prohibiting any further post-foreclosure proceedings including any eviction or
other proceedings related to the property by the Housing Court or any other Court which
command any action on the part of the Plaintiffs.