IS 44 ev, 1104) CIVIL COVER SHEET ‘The JS 4 civil cover shet and the information contained herein neither replace nor supplement the fling and service of pleadings or other papers st required by lw, ofits Go ovded by local les of court. This fora, approved by th ficial Confrence of he United States n September 1974, i Foqued forthe ss of ee Cenk ‘Fang he cSt a = T@ PLAINTIFFS DEFENDANTS SBC Mortgage Services JUN 3 9 2017 Kimberly Bolin Donald Botin DISTRI ICT COURT EA STRICT OF MO County of Residence of Fist Listed Plantit County of Residence of Fit Listed Defendant (XCEPT NUS. PLAINTIFF CASES) is HL. 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CAUSE OF ACTION F rie desertion cae Vil. REQUESTED IN ‘CHECK IF THIS IS AGLASSACTION DEMANDS (CHECK YES only i complaint COMPLAINT: UNDER F.RCP.23 SURY DEMAND: No VII. RELATED CASE(S) IF ANY omens Cd DOCKET NUMBER DATE G-29-RECEIVED JUN 2 9 2017 L.s,OISTRIOT COURT UNITED STATES DISTRICT COURT EASTERNDISTRICT OF NO EASTERN DISTRICT OF MISSOURI ‘ST.LOUIS: ) Kimberly and Donald Bolin, ) Plaintiff ) ) Case w 8 17 -CU- OFFOZ ) (fo be assigned by Clerk of District Court) HSBC Mortgage Services, Martin Leigh, and) MERS, Defendant(s) ) 7 ) COMPLAINT L State the grounds for filing this case is Federal Court (include federal statutes and/or U.S. Constitutional provisions, if you know them): Jurisdiction is proper in this Complaint for Violations of (CRA) Fair Credit Reporting Act, 15 U.S.C. §§1681, the (FDCPA) Federal Debt Collection Practices Act, 15 US.C. §§ 1692, Federal Trade Commission Act, Section 5. Plaintiffs request under the Federal Rules of Civil Procedure Title IV Trials, Rule 38, Demand for a Trial by Jury. I. Plaintiff's, Kimberly and Donald Bolin reside at 5019 Meadow Dr., Imperial in the county of Jefferson MO 63052 I. Defendant(s), HSBC Mortgage Services lives at, or its business is located at 636 Grand Regency Blvd, Brandon, Florida 33510 Martin Leigh lives at, or its business is located at 1044 Main Street, Kansas Missouri 64105 MERS lives at, or its business is located at P.O. Box 2026, Flint, Michigan 48501Statement of claim (State as briefly as possible the facts of your case. Describe how each defendant is involved. You must state exactly what each defendant personally did, or failed to do, which resulted in harm to you. Include also the names of other persons involved, dates, and places. Be as specific as possible. You may use additional paper if necessary): - BREACH OF FIDUCIARY DUTY 1.The HSBC breached the trust between the creditor and debtor by causing the Plaintiff to default on their mortgage. 2.HSBC extorted money from Plaintiff's by claiming to be putting funds towards modifications which never occurred. 3.The HSBC were unjustly enriched as a result of causing default and keeping payments that were intended for a modification. HSBC repeatedly attempted to put a forced placed insurance policy on without authorization. 4.Martin Leigh proceeded with foreclosure proceedings fully aware that Notice of Rescission had been given and therefore there was no note or deed of trust on which to proceed. 5. The breach also includes: Incorrectly charging late fees when payments were not late. Incorrectly charging too much interest. Incorrectly applying the payment to the principal. Incorrectly stating remaining of principal remaining. Incorrectly stating the amount to cure to prevent foreclosure. 6. HSBC damaged the Plaintiff's credit rating by reporting to credit agencies false information such as being late when they were not late. 7.HSBC then removed any record of any mortgage of any kind taken out by the plaintiff's making it appear as though plaintiff's were simply renters being evicted, effectively making it nearly impossible for plaintiff's to obtain any new home or rental property.BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 1.The HSBC failed to properly, and in a timely manner, credit the mortgage payments and payments made toward the loan modification. 2. HSBC failed to provide Plaintiffs with a complete payment history. 3, Defendant HSBC working in concert with Richard L. Martin and MERS filed, fabricated, forged and intentionally altered documents with the Recorder of Deeds. 4. Defendants foreclosed upon the plaintiffs, without satisfying the necessary legal standing requirements to institute a foreclosure. 5.Defendants with unclean hands intend to take possession, custody, and control of the Plaintiff's property and ultimately remove the Plaintiffs from their home. 6.Defendants ignored the Notice of Rescission and its effect upon the note and deed of trust and instead proceeded with a foreclosure which ‘was wrongful in nature and should be declared as void. 7.Plaintiffs are entitled to injunctive relief in this matter based upon the fact that neither of the Defendants attempting to singularly or collectively foreclose on the Property is the real party in interest in the foreclosure proceeding nor can they be the real party in interest in defending this action. 8. HSBC lacked a legally cognizable interest in the property and therefore, it had no standing to foreclose. See Bellistri v Ocwen Loan Servicing LLC 284 S.W.3d 619. 623 (Mo App ED 2009).FDCPA VIOLATIONS 1 Defendant HSBC Mortgage Services violated the FDCPA 15 US 1635 because they continued with nonjudicial foreclosure even though, due to Notice of Rescission, there was no note or deed of trust to foreclose upon. 2. Defendant HSBC violated the FDCPA by foreclosing on the Plaintiff's property when they clearly lack standing. 3. The contract Martin Leigh made with HSBC violates the FDCPA. therefore is not lawful. 4.Martin Leigh’s firm, with MERS, created, fabricated, forged and intentionally altered documents in order to illegally foreclose. 5.Martin Leigh, having unclean hands acted in concert with HSBC and MERS in order to defraud the Plaintiffs as evidenced by the attached exhibits. 6.HSBC is only a debt collector which violates the FDCPA 15 U.S. Code §§1692¢ by using false or misleading representations acting as if it is the actual owner of the Note. 7 Defendants violated FDCPA §§1692(j) by sending letters such as the foreclosure notice sent by Martin Leigh. The Plaintiffs mailed a letter to Martin laying out only a few of the many reasons that foreclosure ‘was not possible. 8.Defendants breached their fiduciary duty owed to Plaintiffs by violating the accurate disclosure requirements of the loan and by failing to comply with the Federal Truth in Lending Act (15 U.S.C §§1601- 1666) and with the Act’s corresponding Regulation Z (24 C.F.R. 3500.1-3500.17) and thereafter by willfully failing and refusing after demand made to correct these inaccuracies. 10. The Plaintiff's credit history was damaged as a result of Defendant's actions.11. A Federal District Court within the Ninth Circuit Court of Appeals has held that Wells Fargo Bank, N.A. may be a debt collector required to comply with the Fair Debt Collection Practices Act. See Williams v. Wells Fargo Bank, N.A., Bt al., 2012 U.S. Dist. LEXIS 2871 (W.D. WA, January 12, 2012). UNJUST ENRICHMENT 1 Plaintiffs were overcharged interest and under credited principal and asa result the Defendants were unjustly enriched. 2. Defendants were unjustly enriched when Plaintiffs paid late fees when payments were not late. 3.Defendants were unjustly enriched as the result of charging legal fees and drive by property assessments. 4.Defendants were unjustly enriched by accepting payments for modification but never applying said payments to the account. 5.HSBC fraudulently stated that taxes were not paid to Jefferson County when in fact the taxes were paid yearly, until HSBC foreclosure. Such actions caused emotional harm to the Plaintiffs as HSBC repeatedly and yearly threatened acceleration and foreclosure due to nonpayment of taxes. Even after receipts being faxed to HSBC proving payment, these threats would continue till they had received proof at least 3 different months. 6. The Defendants violate HOEPA by refusing to refinance or modify the terms of the loan so the Plaintiffs were able to stay in their home and not lose any equity they had paid into their home. HOEPA. prohibits high interest rate balloon notes which are predatory.AIDING AND ABETTING 1.HSBC, MERS, and Martin Leigh knowingly forged documents such as endorsements, assignments and affidavits in order to foreclose. People that participate in accomplishing this fraud can be charged with aiding and abetting fraud. 2.Unfair or deceptive acts prohibited (a) Unfair or deceptive acts or practices affecting the conduct of any trade or commerce constitute unlawful acts or practices and are also Class B misdemeanors. 3. HSBC Mortgage Services asked Plaintiffs repeatedly to submit paperwork for loan modifications only to be rejected for lack of more paperwork. Plaintiffs sent numerous times the paperwork to their fax machines on at least 4 separate occasions every 6 months.INFLICTION OF EMOTIONAL DISTRESS 1. Defendant's actions fall under the term Abusive Mortgage servicing. This occurs when a servicer, either through action or inaction, obtains or attempts to obtain unwarranted fees or other costs from borrowers, engages in unfair collection practices, or through its own improper behavior or inaction causes borrowers to be more likely to go into default or have their homes foreclosed. 2.Defendant’s actions caused infliction of emotional harm to the Plaintiffs. 3. Plaintiffs have suffered and will continue to suffer emotional distress from the constant threat of foreclosure and eviction by Defendants. 4.Kimberly Bolin has had increased heart and breathing difficulties, has had to seek the care of a psychologist due to fear of break in by defendants, and required emergency surgery due to stress induced infection. 5. HSBC caused the Plaintiffs to be depressed and suicidal. 6. The thought of losing your home is the first thing on your mind when you wake up and the last thing on your mind before you go to sleep. ‘You are constantly worried that there will be a knocic on your door and a sheriff there handing you your walking papers. It’s a horrible feeling to have all the time. The telephone calls by the servicing agencies were abusive. The harassment was daily causing severe depression. Defendants violated more than just FDCPA. The treatment was humiliating and debilitating.FAIR CREDIT REPORTING ACT 1.The Defendants ruined more than just the peace of mind of the Plaintiffs, but also something which is still important, and that is the Plaintiff's credit report. 2.(ECRA) Fair Credit Reporting Act, 15 U.S.C. 1681 prohibits creditors from reporting false information to credit bureaus. 3.Plaintiff’s credit report did show unpaid late fees, and these charges along with notes showing default which further lowered the credit score, 4.Plaintiffs were rejected numerous times when they tried to refinance their home loan. 5. Plaintiffs continue to lie on credit report, removing ALL vestiges of the mortgages from all the credit bureaus. It now appears as though there was NEVER any loans of any kind, which is not only a lie, but creates more problems than it solves.FRAUDULENT PRACTICES 1 Plaintiffs were tricked by Defendants by collecting late fees, repeated interest only temporary loan modifications is a predatory lending practices. This is known as Fraudulent Practices. 2. Offering only 6 month temporary loan modifications because they claimed they did NOT hold the note and therefore could not enter into any permanent modifications. 3.Plaintiffs assert the Assignment of Mortgage was fabricated and forged. The assignor Intervale Mortgage Corp did not exist on the date the assignment was made and recorded. 4.The note has 2. undated endorsements that are signed over from Intervale to Decision One and Decision One signed in blank. However, both endorsements are signed by the same individual, Joel K. Mularski, Asst. Secretary of Decision One. Decision One cannot endorse the note to itself and unless Mr. Mularski was working for both companies, that did not exist at the time of signing, his signature cannot be used for both endorsements. 5. The Note sent to Plaintiffs in response to QWR in 2012 have NO endorsements of any kind. The above endorsements only appear in 2013 before foreclosure in a response for debt validation. 6. Intervale Mortgage Corp and Decision One no longer existed by 2013. Both had ceased doing business by July 1, 2008. 7.Defendants were unjustly enriched as a result of their fraud to the detriment of the Plaintiff. 9.Defendants breached their fiduciary duty to the Plaintiff by keeping inaccurate records, forging documents, and ignoring facts of the case. 10. HSBC Mortgage Services by sending itemized statements and monthly statements, intentionally altered, are guilty of committing mail and wire fraud. 11, Fraud in the Factum is a type of fraud where misrepresentation causes one to enter a transaction without accurately realizing the risks, duties, or obligations incurred. [1] This can be when the maker ordrawer of a negotiable instrument, such as a promissory note or check, is induced to sign the instrument without a reasonable opportunity to leam of its fraudulent character or essential terms. Determination of ‘whether an act constitutes fraud in the factum depends upon consideration of all relevant factors. Fraud in the factum usually voids the instrument under state law and is a real defense against even a holder in due course. 12, The Plaintiffs were not allowed to read the documents during the closing. They were not allowed to see the checks that were issued to ensure that the lender listed was indeed the actual lender. Defendant HSBC Mortgage Services with MERS, by hiring Martin Leigh and filing false documents has, without satisfying the necessary legal standing requirements, completed a non judicial foreclosure, and are attempting take possession, custody, and control of the property and ultimately remove the Plaintiffs from their home. 13, The Defendant Martin Leigh with MERS and HSBC, is fabricating in the very same way as Lorraine Brown did for Lender Processing Services, (DOCX) See United States of America v Lorraine Brown 3:12-cr-198-J-25-MLR (November 13, 2012). See also See also Wells Fargo v Farmer. NY Kings County 27296/07 (June 5, 2008) 14, PlaintifiS are entitled to injunctive relief in this matter based upon the fact that neither of the Defendants attempting to singularly or collectively foreclose on the Property is the real party in interest in the foreclosure proceeding nor can they be the real party in interest in defending this action. 15, Plaintiff is informed and believes and thereon alleges that neither of the Defendants is the holder of the note on the Property. Therefore, neither of the Defendants has the right to proceed with a foreclosure on the Property and the Defendants should be enjoined from proceeding with a foreclosure. 16. Martin Leigh as Trustee should be able to produce the purported mortgage note properly endorsed to show that HSBC actually owns it. The note is only endorsed by Intervale to Decision One and there is no indication that HSBC or the trustee ever acquired the note.V. Relief: State briefly and exactly what you want the Court to do for you. WHEREFORE the Plaintiff requests that this Honorable Court grant relief in ‘compensatory, special, general and punitive damages in which the amount to be determined by a trial by jury. In addition Plaintiff prays for: 1. Pursuant to TCPA and FDCPA that all Defendants, their successors, agents, representatives, employees, and all persons who act in concert with them be permanently enjoined from committing any further acts upon Plaintiff in violation of, including, but not limited to, the violations alleged herein, 2. Vacate or void the non judicial foreclosure sale and trustees deed. 3. Vacate or void all judgements based upon the wrongful foreclosure and trustee’s deed. 4. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable attomey’s fees according to proof. 5. For reasonable costs of suit and such other and further relief as the Court deems proper. VI MONEY DAMAGES: A) Do you claim either actual or punitive monetary damages for the acts alleged in this complaint? Punitive, in an amount for a jury to decide. VII. Additional Information:1. On December 4, 2004 the Plaintiffs executed an adjustable rate note and mortgage in favor of Intervale Mortgage Corporation for $96,300.00. A second (ten year balloon) mortgage was obtained for the amount of $23,600.00 made by the same lender to piggyback the first mortgage. 2. No notification of a right to rescission was ever implied or given to plaintiffs. 3. The servicing of the mortgage was through HSBC Mortgage Services. 4, In February 2012 the Plaintiffs mailed Defendant HSBC a Qualified Written Request, Notice of Rescission, and Debt Validation letter. 5, Defendant HSBC failed to respond as required within 60 days. This violates 12 U.S.C. §§2605(e)(3) of RESPA. 6. RESPA requires any servicer of a federally regulated mortgage loan to take any of several actions within 60 days of receiving a qualified written request. 12 U.S.C. §§ 2605(e)(3). The Act requires that a servicer: (1) make any applicable changes to the borrower's account as requested; (2) explain in writing why such changes cannot be made; (3) provide the borrower the information requested; or (4) explain why that information is unavailable. 12 US.C. §§ 2605(€)(2). 7. HSBC violated 15 U.S.C. §§ 1641(g) of the Truth in Lending Act (TILA) by failing to provide Plaintiffs written notice within 60 days after HSBC was assigned the original promissory note. 8. Plaintiffs also allege that they never received notice of the date of any assignment. Under §§1641(g), a creditor that is the new owner or assignee of adebt must notify the borrower in writing of such transfer no later than 30 days after the date on which a mortgage loan is sold or otherwise transferred. 9. HSBC failed to dispute the notice of rescission within the 20 days allowed by law, the notice of rescission stands and is considered in effect at the time of mailing, NOT the time it was received. By operation of law, there was no note or deed of trust to foreclose on by the Defendants. See Jesinoski v. Countrywide Home Loans, Inc., 2015 WL 144681 (Jan. 13, 2015), The Jesinoski case is a landmark case in which the right to rescind a mortgage loan starts the moment it is dropped in the mailbox.10. HSBC told the Plaintiffs that they qualified for a loan modification. 11. HSBC asked Plaintiffs to make trial payments for a period of time. 12. Plaintiffs were not aware that during the trial period that they would be charged late fees or that the payments would not be correctly applied. 13. HSBC made false statements to Plaintiffs about the character and the amount that was due after payments were applied. 14, HSBC harmed Plaintiffs by refusing to create a permanent loan modification. 15. HSBC caused the default by not applying payments the Plaintiffs made and by charging late fees when payments were not late. 16. Asa result of Defendants actions they violated numerous state and federal laws. 17. The Home Ownership and Equity Protection Act (HOEPA) was created to protect consumers from excessive fees and interest rates. Loans that are considered “high cost” are subject to additional disclosure requirements and restrictions. The loan that Plaintiffs received did not follow the HOEPA. guidelines. 18. Plaintiffs have suffered and will continue to suffer damages in an amount not yet ascertained to be proven at trial, including, but not limited to, damages for loss of property, money, and damages for emotional distress. Defendants and each of them are guilty of malice, fraud or oppression. Defendants worked in concert to defraud the Plaintiff. Plaintiffs should have had their loan properly rescinded according to the law. 19, HSBC failed to dispute the notice of rescission within the 20 days allowed by law. The notice of rescission stands and is considered in effect at the time of mailing, NOT the time it was received. By operation of law, there ‘was no note or deed of trust to foreclose on by the Defendants. 20. HSBC caused default so they could foreclose and steal the equity in the home. The attached exhibits show proof that the Defendants intent to defraud Plaintiffs. Defendants caused Plaintiffs to suffer harm as a result of their actions. Plaintiffs are seeking justice by filing this complaint enforcing theirighature right to due process and are seeking judicial remedy. Danubkl Rob ‘attorney or pro se Plaintiff