Complaint Review: Homeq Servicing CA. - North Highlands California

Hey everyone that has been "Serviced" by Homeq Servicing and lost or are about to or is having trouble with.

I found a case that attorneys sucessfully sued and won hands down. This was an other Mortgage servicer but it all applies to the fair credit reporting act and Housing and urban development regulations that were violated for the servicers profit.

I called the attorney at the bottom and the firm may entertain a class action suit if you are all game. After all, I am not out for vengence, I want justice, my money back, my home and Homeq to be held accountable for thumbing their noses at federal law!

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

1

IN THE SUPERIOR COURT OF WASHINGTON

IN AND FOR PIERCE COUNTY

_________________________________________

LAURA J. SANDOVAL, on behalf of )

herself and all others similarly situated, )

)

Plaintiff, )

)

vs. )

)

WASHINGTON MUTUAL, INC.; WASHINGTON

MUTUAL BANK, FA; BANK UNITED

CORPORATION; BANK UNITED OF TEXAS,

FSB, and )

DOES 1 B 100, )

)

Defendants. )

__________________________________________)

No. 01-2-06488-1

FIRST AMENDED CLASS ACTION

COMPLAINT

Individual and representative Plaintiff Laura Sandoval, by and through her attorneys, on

behalf of herself and all others similarly situated, complains against Defendants Washington Mutual,

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

2

Inc., Washington Mutual Bank, FA, Bank United Corporation, and Bank United of Texas, FSB

("Defendants"), and alleges as follows:

Plaintiff brings this case on behalf of herself and a class of borrowers whose mortgage loans

were or are serviced by Defendants. Plaintiff alleges that Defendants improperly assessed property

inspection fees and late fees in violation of contract and state and federal law.

PARTIES

1. Laura Sandoval is a resident of Tacoma, Washington.

2. Washington Mutual Bank, FA ("WMB") is incorporated in the State of

Washington and maintains its principal place of business in Seattle, Washington.

3. Washington Mutual, Inc. is also incorporated in the State of Washington and

maintains its principal place of business in Seattle, Washington. Washington Mutual, Inc., the

parent company of WMB, acquired Bank United Corporation on February 8, 2001, including its

assets and liabilities. Bank United Corporation conducted business through its wholly-owned

subsidiary, Bank United of Texas, FSB. Pursuant to the merger, Bank United Corporation has

ceased to exist as an independent company, and Washington Mutual, Inc. is thus the successor

entity to both Bank United Corporation and Bank United of Texas, FSB (collectively, "Bank

United").

JURISDICTION AND VENUE

4. This Court has jurisdiction over the breach of contract and unjust enrichment

claims pled herein because they arise under the common law.

5. This Court has jurisdiction over the alleged violations of the Unfair and Deceptive

Trade Practices Act pursuant to Section 19.86.090 of the Revised Code of Washington.

6. Venue is proper in Pierce County under the Washington Code of Civil Procedure

Section 4.12.010 because the subject property is located in this jurisdiction.

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

3

FACTUAL ALLEGATIONS

7. Washington Mutual operates one of the largest residential mortgage loan

servicing businesses in the United States. It collects and applies loan payments from borrowers,

collects funds for, and pays mortgage-related expenses, and forecloses on borrowers it deems to

be in default.

8. Washington Mutual assigned Washington Mutual loan numbers to mortgage

loans formerly serviced by Bank United, and now services those loans. It notified the obligees

under such loans that, effective June 4, 2001, their loans have been converted to the Washington

Mutual servicing system; that communications regarding their loans should be directed to

Washington Mutual's customer service department; and that payments on the loans should be

made to Washington Mutual.

9. Bank United originated some of the loans Washington Mutual now services but,

primarily, acquired the servicing rights for such loans from other lenders. Washington Mutual

services both conventional loans and loans guaranteed by the federal government. As of

September 30, 1999, Bank United's single family mortgage servicing portfolio, now part of the

Washington Mutual portfolio, totaled approximately $30.9 billion.

Defendants Assess Property Inspection Fees

in Breach of Borrowers' Uniform Contracts

and In Violation of Federal Regulations

10. Defendants subjected Plaintiff and Class members, whose mortgage loans they

service or serviced, to unlawful property inspection fees, in violation of federal regulations and

the uniform terms of Plaintiff's and Class members' mortgage contracts.

11. Plaintiff, like other and Class members, purchased a single-family home using a

mortgage insured through the Federal Housing Administration ("FHA") of the Department of

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

4

Housing and Urban Development ("HUD"). (The acronyms HUD and FHA are used

interchangeably herein.)

12. FHA mortgage insurance programs help low and moderate income families

become homeowners by lowering some of the costs of their mortgage loans. FHA mortgage

insurance also encourages lenders to make loans to otherwise creditworthy borrowers who might

not be able to meet conventional underwriting requirements, by protecting the lender against

defaults on mortgages for properties that meet certain minimum requirements.

13. All of HUD's single family home loan programs are authorized by the enabling

legislation of the National Housing Act, 12 U.S.C. ' 1709 et seq. The regulations implementing

the individual programs are contained in the Code of Federal Regulations (C.F.R.), Title 24.

14. The standardized loan contracts between Defendants on the one hand and Plaintiff

and Class members on the other are adhesion contracts drafted by the lender. Pursuant to such

contracts, the lender or servicer may collect only those fees and charges which are lawful,

authorized by the contract, and, for loans guaranteed by HUD, those which are authorized by

HUD. While the contracts allow the lender or servicer to inspect a property, the contracts do not

permit the lender or servicer to charge a borrower for the inspection.

15. Under HUD regulations, mortgage loan servicers may assess borrowers a property

inspection fee only when, (A) each of the following are satisfied: (1) the mortgage is in default;

(2) payment is not received within 45 days of the due date; and (3) efforts to reach the borrower

by telephone during that 45-day period have been unsuccessful; or, (B) the property is vacant or

abandoned. See 24 C.F.R. 203.377. Also, according to HUD regulations, the fees and charges

collected by loan servicers from borrowers must be reasonable and customary. See 24 C.F.R. '

203.552.

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

5

16. Bank United's uniform policy for conducting property inspections as it is written

and implemented violates HUD regulations.

17. Bank United conducted property inspections even though it knew, or should have

known, that Plaintiff's and Class members' properties were not vacant. Bank United did not

attempt telephone contact prior to requesting a property inspection, as required by its uniform

policy, and as required by HUD regulations. In some cases, Bank United disregarded contact

indicating a property was occupied. Bank United charged Plaintiff and Class members fees for

the illegal inspections it conducted.

18. Following Washington Mutual's acquisition of Bank United's assets and

liabilities, the mortgage loans of Plaintiff and Class members have been serviced by Washington

Mutual, which continues to collect inspection fees and other fees unlawfully charged by Bank

United.

19. Defendants have engaged in a uniform pattern and practice of charging and

collecting property inspection fees from Plaintiff and Class members in violation of HUD

regulations, and in breach of the uniform terms of the mortgage loan contracts.

Defendants Assess "Late Charges"

in Breach of Contract for Payments

They Cannot Document as Late

20. Defendants also engage in a uniform pattern and practice of improperly assessing

late fees for payments received during the fifteen day grace period provided by uniform terms in

the loan contracts of Plaintiff and Class members.

21. Plaintiff's loan contract sets the first day of each month as the due date for each

monthly payment. The contract also states, "If Lender has not received the full monthly payment

required [under the contract] by the end of fifteen calendar days after the payment is due, Lender

may collect a late charge in the amount of four percent (4%) of the overdue amount of each

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

6

payment." Since the payments are "due" on the 1st, the end of "fifteen calendar days" expires at

the end of the 16th day and the 17th day of each month is the earliest date that a late charge may

be assessed. This language is the same or substantially similar for all Class members' mortgage

loan contracts.

22. In addition, Plaintiff's mortgage loan statements state that a payment will be

considered late "if received after" the 16th day of the month. This language is the same or

substantially similar for all Class members' mortgage loan statements.

23. Bank United's policy allows for (and in fact anticipates) the assessment of late

fees when its own payment processing problems are the cause of the delay in posting of timelyreceived

payments. For example, as of at least October 1999, Bank United's late charge policy

provided that in the event of "system problems" on the day late charges are to be assessed,

"Management [would] determine whether or not late charges should be assessed based on the

volume of unprocessed payments."

24. Even though the payments of Plaintiff and Class members were timely received,

Defendants failed to post such payments in a timely manner, and improperly assessed late

charges against Plaintiff and Class members. Thus, Defendants benefit from a default they

create.

25. In this manner, Defendants caused damages and injury to Plaintiff and members

of the Class.

Defendants' Policies Unduly Pressure

Borrowers To Pay Improper Charges

26. In November 2000, after confirming with a Bank United employee the amount

required to bring her mortgage account current, Plaintiff sent Bank United a payment totaling

$1,887.06, using the services of Western Union Money Transfer. Western Union Money

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

7

Transfer confirmed the funds were transferred to Bank United on November 30, 2000. However,

Bank United did not credit Plaintiff's mortgage account until December 8, 2000.

27. When Bank United did finally credit Plaintiff's November $1,887.06 payment, it

did not apply the payment according to the priorities set forth in the mortgage loan contract.

Instead, Bank United paid itself $45.21 and $80.00 in miscellaneous fees from that payment

without first applying the payment to mortgage insurance premiums, principal, interest, or taxes,

as required by the mortgage loan contract. It then informed Plaintiff that her payment was 59

cents short and had thus not been credited. Bank United then improperly characterized Plaintiff's

subsequent payments as "partial" payments that it was entitled to reject. Defendants' lack of

customer service made it virtually impossible for Plaintiff to obtain proper credit in her account

other than by paying all improper charges or filing suit.

28. As with Plaintiff, when Defendants' unlawful assessment of fees and improper

application of payments reduces the balance of the payment tendered by Class members below

that which Defendants deem to be "due," Defendants' uniform practice is to either reject the

payment or to place the balance in a "suspense account" and not apply the payment. Defendants

then refuse to accept further payments unless all the amounts it claims as due, including its

illegal assessment of fees, are paid in one lump sum.

29. Defendants' improper assessment of fees and their misapplication of the payments

of Plaintiff and Class members endanger the property interests of Plaintiff and Class members.

The threat of foreclosure by Defendants unduly pressures borrowers to pay improper charges.

CLASS ACTION ALLEGATIONS

30. Plaintiff brings this action on behalf of herself and all others similarly situated, as

a member of the proposed class (herein "Class"). The Class which Plaintiff seeks to represent is

defined as follows:

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

8

All persons who have or had residential mortgage loans which were serviced

by Bank United at any time from four years preceding the date the first

complaint was filed in this action to the present.

31. The Class excludes Defendants and any entity in which Defendants have a

controlling interest, and their legal representatives, officers, directors, assigns and successors.

32. This action has been brought and may properly be maintained as a class action

pursuant to CR 23.

33. Numerosity of the Class: The Class is so numerous that joinder of all such

persons is impracticable and the disposition of their claims in a Class Action rather than in

individual actions will benefit the parties and the Court. The precise number of Class members

and their addresses are unknown to Plaintiff, although it is believed that the Class numbers in the

thousands. Members of the Class may identified from Defendants' records, and may be notified

of the pendency of this action by mail, supplemented, if deemed necessary, by published notice.

34. Existence and Predominance of Common Questions of Law and Fact: There

is a well-defined community of interest in the questions of law and fact involved in this case

which affect all members of the Class and which predominate over any individual issues.

Questions of law and fact common to the Class members include, but are not limited to, the

following:

a. Whether Defendants are unjustly enriched by extracting improper late fees and

improper property inspection fees from payments made by or on behalf of

Plaintiff and Class members;

b. Whether Defendants' conduct breached Class members' standardized loan

contracts;

c. Whether Defendants' conduct breached implied terms in Class members'

standardized loan contracts;

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

9

d. Whether Plaintiff and Class members are entitled to the declaratory relief

prayed for below;

e. Whether Defendants' conduct violates the Unfair and Deceptive Trade

Practices Act, Rev. Code Wash. section 19.86.010 et seq. or the applicable

consumer protection statutes of other states;

f. The proper measure of Class members' damages; and

g. Whether Plaintiff and the Class are entitled to injunctive relief and the nature

of such relief.

35. Typicality: Plaintiff's claims are typical of those of the Class because the

material terms of Plaintiff's mortgage loan contract are the same as Class members' mortgage

loan contracts, Plaintiff's mortgage was serviced by Bank United, Plaintiff's payments were

improperly posted or credited, and Plaintiff was wrongfully assessed property inspection and late

fees by Bank United and/or its successors in interest.

36. Adequacy: Plaintiff adequately represents the Class because she will fairly and

adequately protect the interests of the Class. Plaintiff's interests do not conflict with the interests

of the other members of the Class which she seeks to represent. Plaintiff is committed to the

vigorous prosecution of this action and has retained competent counsel experienced in complex

class action litigation and consumer litigation. The interests of the Class will be fairly and

adequately protected by Plaintiff and her counsel.

37. A Class Action is the superior method for fair and efficient adjudication of this

controversy. Since the damages suffered by individual members of the Class, while not

inconsequential, may be relatively small, the expense and burden of individual litigation make it

impractical for members of the Class to seek redress individually for the wrongful conduct

alleged herein. Further, it would be virtually impossible for the members of the Class

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

10

individually to redress effectively the wrongs done to them. Even if the members of the Class

themselves could afford such individual litigation, the court system could not. Individualized

litigation also presents a potential for inconsistent or contradictory judgments. Individualized

litigation increases the delay and expense to all parties and the court system. By contrast, the

class action device presents far fewer management difficulties, and provides the benefits of

single adjudication, economy of scale, and comprehensive supervision by a single court.

38. In addition, the prosecution of separate actions by individual members of the

Class would create a risk of inconsistent or varying adjudications with respect to individual

members of the Class, which would establish incompatible standards of conduct for the party

opposing the Class, or adjudications with respect to individual members of the Class which

would, as a practical matter, be dispositive of the interests of other Class members not parties to

the adjudications, or substantially impair or impede their ability to protect their interests.

39. This action may also be maintained as a class action because Defendants have

acted or refused to act on grounds generally applicable to the Class, thereby making appropriate

final and injunctive relief or corresponding declaratory relief with respect to the members of the

Class.

COUNT ONE

(Breach of Contract)

40. Plaintiff, on behalf of herself and members of the Class, realleges as if fully set

forth here, each and every allegation above.

41. As the servicer of Plaintiff's and Class members' mortgage loans, Defendants are

bound by the standardized terms of Plaintiff's and the Class members' loan contracts. All such

terms relevant to the claims set forth herein are identical in all material respects and have the

same meaning in all jurisdictions.

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

11

42. Plaintiff and Class members have tendered performance and/or have substantially

performed all their obligations under their loan contracts.

43. As detailed above, Defendants have failed to perform in accordance with the loan

contracts, thereby breaching standardized terms in Plaintiff's and the Class members' contracts by

assessing improper charges, authorizing property inspections without following procedural

requirements, and failing to timely credit payments.

44. Plaintiff and the Class members have suffered damages, in an amount yet to be

determined, and their real property has been endangered as a result of Defendants' breaches.

45. Defendants' breaches are the actual and proximate cause of Plaintiff's and Class

members' damages.

46. Plaintiff and Class members are entitled to a declaration that late fees and

inspection fees are assessed by Defendants as a penalty for a borrower's alleged breach of the

obligations under the uniform contracts, and that all such fees are improper and beyond the terms

of the applicable contracts.

47. Plaintiff and the Class members are therefore entitled to damages in an amount to

be determined at trial; to a declaration providing that they are not in default of their obligations;

to an order requiring Defendants to accept and properly credit payments proffered by Plaintiff

and Class members; and to such other relief as the Court may deem proper.

COUNT TWO

(Breach of the Duty of Good Faith and Fair Dealing)

48. Plaintiff, on behalf of herself and members of the Class, realleges as if fully set

forth here, each and every allegation above.

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

12

49. Plaintiff and Class members have tendered performance and/or have substantially

performed all their obligations under their loan contracts.

50. The Defendants' duty of good faith and fair dealing is implied in the subject loan

contracts.

51. Under this implied term of the agreements, necessary to carry out the intent of the

parties, Plaintiff and Class members are entitled to have Defendants apply mortgage servicing

procedures in a way that do not result in any charges assessed in breach of their contracts or in

violation of HUD regulations.

52. By virtue of the conduct set forth above, Defendants deprived Plaintiff and Class

members of the benefit of their bargains, and breached the implied covenant of good faith and

fair dealing inherent in their contracts.

53. Plaintiff and Class members have suffered damages, in an amount yet to be

determined, and their real property has been endangered as a result of Defendants' breaches.

54. Defendants' breach is the actual and proximate cause of Plaintiff's and Class

members' damages.

55. Plaintiff and Class members are therefore entitled to damages in an amount to be

determined at trial, a declaration providing that they are not in default of their obligations, an

order requiring Defendants to accept and properly credit payments proffered by Plaintiff and

Class members, and such further relief as the Court may deem proper.

COUNT THREE

(Equitable Relief for Violations of Consumer Protection Acts)

56. Plaintiff, on behalf of herself and members of the Class, realleges as if fully set

forth here, each and every allegation above.

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

13

57. Defendants' actions are unfair and/or deceptive within the meaning of the Unfair

and Deceptive Trade Practices Act, Rev. Code Wash. section 19.86.010 et seq. or the applicable

consumer protection statutes of other states.

58. Defendants conduct commerce directly or indirectly affecting the people of the

state of Washington, as well as the people of some or all of the other fifty States and the District

of Columbia, through their mortgage loan servicing business.

59. Defendants' actions have the tendency or capacity to deceive Plaintiff and Class

members about the amounts actually owed on their loan contracts.

60. Defendants' actions are unfair because Plaintiff and Class members are assessed

or otherwise obligated to pay improper property inspection fees and/or late fees.

61. Defendants' general course of conduct has an impact on the public interest, and

the acts complained of herein are ongoing and/or have a substantial likelihood of being repeated.

62. Defendants' conduct injured Plaintiff's property and the property of others

similarly situated.

63. Plaintiff and members of the Class are therefore entitled to an order enjoining the

conduct complained of herein; an order disgorging the profits received by Defendants as a result

of their illegal actions; a declaration providing that Plaintiff and Class members are not in default

of their obligations; an order requiring Defendants to accept and properly credit payments

proffered by Plaintiff and Class members; an award of restitution; an award of attorneys' fees and

costs; and to such further equitable relief as the Court may deem proper.

COUNT FOUR

(Damages for Violations of Consumer Protection Acts)

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

14

64. Plaintiff, on behalf of herself and members of the Class, realleges as if fully set

forth here, each and every allegation above.

65. Defendants' actions are unfair and/or deceptive within the meaning of the Unfair

and Deceptive Trade Practices Act, Rev. Code Wash. section 19.86.010 et seq. or the applicable

consumer protection statutes of other states.

66. Defendants conduct commerce directly or indirectly affecting the people of the

state of Washington, as well as the people of some or all of the other fifty states and the District

of Columbia, through their mortgage loan servicing business.

67. Defendants' actions have the tendency or capacity to mislead Plaintiff and Class

members about the amounts actually owed on their loan contracts.

68. Defendants' actions are unfair because Plaintiff and Class members are assessed

or otherwise obligated to pay improper property inspection fees and/or late fees.

69. Defendants' general course of conduct has an impact on the public interest, and

the acts complained of herein are ongoing and/or have a substantial likelihood of being repeated.

70. Defendants' conduct injured Plaintiff's property and the property of others

similarly situated.

71. Plaintiff and members of the Class are therefore entitled to damages to be trebled;

a declaration providing that Plaintiff and Class members are not in default of their obligations; an

order requiring Defendants to accept and properly credit payments proffered by Plaintiff and

Class members; an award of attorneys' fees and costs; and to such further legal relief as the Court

may deem proper.

COUNT FIVE

(Unjust Enrichment)

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

15

72. Plaintiff, on behalf of herself and members of the Class, realleges as if fully set

forth here, each and every allegation above.

73. By paying Defendants' improperly assessed fees and/or by being obligated to pay

Defendants' improperly assessed fees, Plaintiff and Class members involuntarily conferred a

benefit to Defendants.

74. Defendants have been unjustly enriched by the benefit they received, and have

retained the benefit they received.

75. Plaintiff and Class members seek restitution and/or disgorgement of the profit or

the benefit Defendants derived from the unlawful conduct described herein.

PRAYER FOR RELIEF

WHEREFORE, individual and representative Plaintiff requests of this Court the

following relief, on behalf of herself and all others similarly situated:

A. An order certifying the proposed plaintiff Class, and appointing Plaintiff and her

counsel of record to represent the Class;

B. An order that the Defendants be permanently enjoined from their improper

activities and practices described herein;

C. An order awarding declaratory relief as requested herein and as the Court deems

appropriate;

4. An order awarding restitution and/or disgorgement of profits;

5. An order mandating that Defendants correct any negative reports about

Plaintiff and Class members provided by them to credit reporting bureaus relating to the

allegations herein;

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

16

E. An award of compensatory damages, treble damages and any additional,

consequential and incidental damages and costs suffered by Plaintiff and members of the Class

due to of Defendants' wrongful conduct;

F. Prejudgment interest, attorney's fees, costs of suit, including expert witness fees;

and

G. Such other and further legal and equitable relief, including exemplary relief, as

this Court may deem proper.

DATED: November __, 2001 COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C. (this is the firm I called, I just looked them up and called the Philadelphia office. Nutt'n better than a Lawyer from Philly.)

By: _________________________________

Tamara J. Driscoll, WSBA No. 29212

999 Third Avenue, Suite 3600

Seattle, WA 98104-4001

Telephone: (206) 521-0080

Facsimile: (206) 521-0166

Lisa M. Mezzetti

Gary E. Mason

West Tower, Suite 500

1100 New York Avenue, N.W.

Washington, DC 20005

Telephone: (202) 408-4600

Facsimile: (202) 408-4699

Robert S. Green

Jenelle Welling

GREEN FAUTH & JIGARJIAN, LLP

235 Pine Street, Fifteenth Floor

San Francisco, CA 94104

Telephone: (415) 477-6700

Facsimile: (415) 477-6710

Elizabeth J. Cabraser

Kelly M. Dermody

Caryn Becker

Jeniene Andrews-Matthews

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

17

LIEFF, CABRASER, HEIMANN &

BERNSTEIN

Embarcadero Center West

275 Battery Street, 30th Floor

San Francisco, CA 94104

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

AMEND-COM4.WPD FIRST AMENDED CLASS ACTION COMPLAINT

18

Stuart Rossman

NATIONAL CONSUMER LAW CENTER

77 Summer Street

Boston, MA 02110

Telephone: (617) 523-8010

Facsimile: (617) 523-7398

Attorneys for Individual and Representative

Plaintiff Laura Sandoval

--

The group of people that got together were only 25. I am not a lawyer or Para legal nor am I trained in this field. I used to be in Network Security before I had CHF. Not that this fact matters, I just want you to know that I am just another customer that has been screwed by HOMEQ.

Wildcat

Lisa

Bloomington, Minnesota

U.S.A.

Click here to read other Rip Off Reports on HomeQ