Fist of all thank you all for your input. You are all invaluable sounding board to a very heavy conflict.
Here are the meat & potatoes of the suit.
1. This is an action brought by an unskilled, unsophisticated and inexperienced home buyer acting as a consumer who is requesting relief from the continued unjust retention of benefits and enforcement of an unconscionable contract with the Defendant Nationstar Mortgage, the current "Note Holder" of the Plaintiffs mortgage.
2. The action brought by this consumer is in connection with a debt appearing on Plaintiffs consumer reports and the Defendants' refusal to remove or correct inaccuracies regarding it, despite written correspondence specifying the inaccuracies and providing information that would facilitate a reasonable reinvestigation of the matter. Thus, the plaintiff seeks damages and, to the extent possible, injunctive and declaratory relief.
3. Nationstar's refusal to remove or correct inaccuracies discovered in the collateral used to secure the Plaintiffs promissory "Note" continue to cause undue financial hardship on the Plaintiff at the continued benefit of the Defendant Nationstar.
4. On April 18, 2007, Plaintiff entered into a residential mortgage contract to purchase a residential home in south west Dallas.
5. Plaintiff obtained an agreed sale price with the sellers of the property as follows:
• For Sale by Owner= $339,900
• Dallas Central Appraisal District (DCAD) Market Value= $244,800
• Plaintiffs Original offer to Sellers = $250,000 based on DCAD Public Record.
• Contract= $305,000 Prior to Appraisal
• Appraisal= $295,000
• Final Sale = $300,000
6. Due to the vastly different price variation between the Dallas Central Appraisal District Market Value of $244,800, and the For Sale by Owner price of$339,900 an accurate appraisal was imperative for establishing fair and equitable trade terms and assuring adequate security was provided to support the loan decision.
7. In accordance with the terms of the ONE TO FOUR FAMILY RESIDENTIAL CONTRACT, Plaintiff agreed to purchase the subject property, provided the property satisfied Section 4.A.(1) of the contract for Third Party Financing and Property Approval which acted as assurance and justifiable reliability that the subject property being utilized as equity for the Plaintiffs loan met the federal lender guidelines and requirements for underwriting the mortgage which included Plaintiff's right to a true and accurate appraisal of the collateral he endorsed.
8. On May 27, 2007, after paying 20% down on the property, Plaintiff entered into a loan agreement with "The Lender" Taylor Bean & Whitaker (TBW) by endorsing a promissory "Note" in the amount of $236,000.
9. On May 27, 2007, the "Note" for the residential agreement was endorsed by the Plaintiff and secured by a Deed of Trust on the Plaintiffs property and filed with the Dallas County Court house.
10. In 2010, a Retroactive Appraisal and an Appraisal Review were performed on the property where it was discovered that multiple Uniform Standards of Professional Appraisal Practice (USP AP) guidelines were violated which effected the credibility of the appraisal report utilized by the Plaintiff as collateral when endorsing his loan. Therefore, a true and accurate appraisal report was not provided to the Lender, nor to the Plaintiff, and the Plaintiff was not given the right to exercise clause 4.1 of the contract which stipulates for the termination of the contract and all earnest money to be refunded should the property not satisfy the lenders underwriting requirements.
11. Due to Plaintiffs lack of knowledge and inexperience in the home buying, process, Plaintiff employed multiple professionals to assist him in this process and because of Plaintiff's reliance on these licensed, certified, and insured professionals, Plaintiff was not aware he was supplied with false information in the original appraisal, and that the home & property actually suffered from what was later described to him as a house with a "functional obsolescent" floor plan, and almost a full acre, (.8660 acres) out of his total 2.213 acre property would be re-classified and devalued 90% due to "diminished site utility."
12. According to The Fannie Mae Seller/Services Guide:
• "Functional depreciation" (which is traditionally referred to as "functional obsolescence") is a loss in value that is caused by defects in the design of the structure-for example, inadequacies in such items as architecture, floor plan, or sizes and types of rooms. It also can be caused by changes in market preferences that result in some aspect of the improvements being considered obsolete by current standards-for example, the location of a bedroom on a level with no bathroom, or access to one bedroom only through another bedroom.
13. The terms "functional obsolescence" and "diminished site utility" are trade terms and the ramifications of those characterizations are not readily recognizable to the layman house buyer, yet these two major undisclosed "errors and omissions" property description created a loss in equity so vast in their miss-characterization of the collateral endorsed by the Plaintiff that the Plaintiff will never be able to refinance, rent or sell his home as it was sold to him.
14. The deficiencies noted as errs and omissions that were later disclosed to the Plaintiff and to the Defendant are so expansive in their disillusion of the true property characteristics that no reasonable person in the Plaintiff's position would have agreed to the contract had they been properly informed of the "diminished site utility" and "functional obsolescent" equity devaluations.
15. 0n May 29, 2007, Plaintiff signed a 15-year residential mortgage contract with the lender Taylor Bean & Whitaker (TBW). On August 3, 2009, following an FBI investigation, raid and forced closure of the TBW offices in Ocala, Florida, TBW filed for bankruptcy.
16. Plaintiff was never informed of this action by the FBI against his original "Note Holder."
17. On or about October 12, 2009, Freddie Mac ordered the transfer of the Plaintiff's "Note" to Cenlar.
18. On July 24, 2012, Plaintiff supplied evidence to the "Note Holder" Cenlar of the property mischaracterizations and the list of the USP AP guidelines that were violated, and despite being provided with knowledge and hard evidence in support of the true appraised value, Cenlar completely ignored the list of certified documents supplied to them by denying Plaintiff's request for review of the errs and omissions stating:
"In completing our review of your financial documentation we have determined that you have the ability to continue making your mortgage payment without the need for a Foreclosure alternative."
19. Plaintiff appealed and on August 16, 2012, Cenlar replied to Plaintiff's request for resolution stating:
• "Your allegation is being submitted to the investor, Freddie Mac, for additional review and response."
20. Plaintiff filed a letter of hardship and complaint with Freddie Mac and during the Plaintiff's consumer complaint process, the Plaintiffs "Note" was sold to the Defendant Nationstar on June 26, 2015 for "debt collection."
21. In the Plaintiffs collaboration with the Consumer Financial Protection Bureau (CFPB), Plaintiff was instructed to reference the Mortgage Servicing Rules under the Real Estate Settlement Procedures Act with the Defendant that specifically instruct servicers on their obligations to correct errors asserted by the borrower.
22. After notifying the Defendant and the CFPB of the forced bankruptcy by the FBI of the loan originator Taylor Bean & Whitaker (TBW), Plaintiff followed the instructions of the CFPB to correspond with the Defendant as the legally bound note holder of the security agreement and mortgage.
23. As the new "Note Holder" of the loan, Plaintiff notified the Defendant of the errors and omissions found in the original appraisal and provided the
Defendant with justifiably reliable supporting documentation that showed how the appraisal and subsequent contract did not disclose the negative equity aspects of "functional obsolescence" and "diminished site utility," and in fact the appraisal report specifically declares, in bold and capitalized lettering:
"NO INADEQUACIES NOTED. NO FUNCTIONAL OR EXTERNAL OBSOLESCENCE WAS NOTED."
24. Defendants were provided with reliable and justifiable sworn and certified reports from multiple third party professional appraisers identifying the mischaracterized physical description of both the land ( diminished site utility), and house (functional obsolescence) that had existed yet were undisclosed at the time Plaintiff purchased his home in 2007 to include the publicly available 90% property devaluation on file with the Dallas Central Appraisal District.
25. Despite being supplied with overwhelming documentation which included the publicly available 2012 property reclassification and property devaluation by the Dallas Central Appraisal District, Defendant issued a letter to the Plaintiff on October 27, 2015 stating:
• "We have conducted an investigation, and it was determined the error asserted within your correspondence did not occur on the account."
26. ln this same correspondence noted to be a "debt collection" letter to the Plaintiff, Defendant states the enforcement of the very contract Plaintiff was induced into signing by stating:
"After further review, we have determined the subject loan remains in full force and effect, and we will continue to service the loans in accordance with the valid, binding documents that you signed at the time of origination."
27. Plaintiff appealed the decision with the Defendant and on October 26, 2015. Plaintiff received the following reply from Steve Safavi, Credit Risk Manager at Nationstar stating:
""I reviewed the appraisal, there is not enough evidence that would indicate the appraiser committed fraud in 2007, specifically since the report was completed almost 10 years ago. The borrower agreed to purchase the property for $305,000 prior to ordering the appraisal which was valued for $295,000."
28. Throughout the Fall of 2015 Plaintiff sent multiple appeals to the Defendant and on December 22, 2015, Plaintiff received a follow up e-mail from the Defendant with underlined emphasis quoting the response the Defendant received from Freddie Mac:
• "They realize an error was made on the appraisal."
29. On December 22, 2015, after finally obtaining the acknowledgement from the Defendant stating that Freddie Mac now recognized and affirmed with the Defendant that the errors and omissions did indeed occur with underlined emphasis, Plaintiff received the additional response from the Defendant:
• "They realize an error was made on the appraisal. However, due to the statute of limitations Freddie Mac can't go back and undo the appraisal.
30. Defendant is a national corporation and is well suited to absorb the costs associated with resolving this dispute whereas the Plaintiff faces the personal burden of the high cost associated with the pursuit of an equitable judgment thus preventing the Plaintiff from effectively vindicating his rights to the fullest extent of the law.
31. Plaintiff does not have near the level of experience and sophistication in financial matters or mortgage lending practices as the Defendant, and as a result Plaintiff continues to make payments toward a negative equity contract that no longer has an equitable loan-to-value ratio.
32. Plaintiff continues to pay for this unequitable contract at the exclusive benefit of the Defendant without the Defendant assuming any risk or incentive to correct the erroneous contract. Defendant continues to receive interest and servicing fees from the Plaintiff despite having full knowledge of the unconscionable and unequitable agreement Plaintiff endorsed for his property.
33. Defendant's Note is nothing more than a "license to steal" from the Plaintiff and allows Defendant to continue to unjustly strip additional equity from the Plaintiff in the collection of additional profits at the expense of the Plaintiff.
34. Plaintiff endorsed a promissory note utilizing his Homestead property as the collateral towards that note. Plaintiff discovered that over $80,000 of his collateral was no longer secured at the value of his promissory note due to "functional obsolescent" and "diminished site utility" mischaracterizations.
35. Plaintiff has been ceremoniously and unlawfully stripped of net worth and is now burdened with a note that has a gross imbalance and is severely one sided in favor of the Defendant.
36. Defendant has shown no initiative to assist the Plaintiff, and in fact refuses to recognize their own correspondence notifying the Plaintiff that an error did indeed occur on the account.
37. Defendant's adamant stance as "Debt Collectors," and refusal to acknowledge their own correspondence as well as their denial of the certified and publicly available documentation presented to them demonstrate their intent to make it difficult for the Plaintiff to seek a cure to the financial burden imposed on him as an unsuspecting Texas Homesteader.
0n January 25, 2017, Defendant sent the Plaintiff a final denial of claim stating: "Upon further review of the aforementioned responses, there is no record of any response advising you that any investigation determined that an error occurred. Our records reflect a fraud investigation was conducted and completed in September 2015, and August 2016, and as determined in by the fraud investigation and as previously advised, there is insufficient evidence to substantiate that any fraud was committed. However, our records reflect the appraisal determined a property value of $295,000.00, which is only a difference of $10,000.00, not $80,000.00."
1. Plaintiff now has an upside down mortgage and is unable to refinance, rent or sell his home for the value he secured as collateral in the home purchase and his only interest for relief is to be made whole.
2. The damage model Plaintiff is seeking recovery from is for relief from the contract with which the Plaintiff is burdened, which include the $80,000 overvaluation of the Plaintiffs property, excessive taxes, insurance, closing costs, interest over time, the professional fees associated with hiring additional third party professionals in defense of his claims and the legal fees Plaintiff has incurred.
3. Defendant is a professed "Debt Collector" and Plaintiff requests an injunction and temporary restraining order against the Defendant to preserve and protect the rights of the Plaintiff until the action between the parties of over.
4. Plaintiff is requesting to place ALL subsequent payments towards the "Note" in question into the courts registry until a trial can be held.