complaint using sec audit kumar florida

8/3/2019 Complaint Using Sec Audit Kumar Florida

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IN THE CIRCUIT COURT OF THE 18th JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR SEMINOLE COUNTY

Case No. 10-CA-OOOOIO-14-GCHARAN G. KUMAR,ORIGINAL RECEIVEDCounter-Plaintiff. TInS IS A COpyMARYANNE MORSE-v- LERK 0 THE C"U S ~ M

WELLS FARGO BANK, N.A., INC.;SAND CANYON CORPORATION, f/k/a Oater DEC

YL,q 2011OPTION ONE MORTGAGE CORP.;SHAPIRO, FISHMAN & GACHE, LLP;GERALD SHAPIRO; BARRY FISHMAN;RONALD GACHE; JESSICA CONTE;NATALIE CURTS;Counter-Defendants.____________________________

FIRST AMENDED COUNTER-COMPLAINT1. Counter-Plaintiff, CHARAN G. KUMAR, hereby sues Counter-Defendants, WELLSFARGO BANK, N.A.; SAND CANYON CORPORATION, flkla OPTION ONE MORTGAGECORP.; SHAPIRO, FISHMAN & GACHE, LLP; GERALD SHAPIRO; BARRY FISHMAN;RONALD GACHE; JESSICA CONTE; and NATALIE CURTS.

DEMAND FOR JURY TRIAL2. Counter-plaintiff hereby demands a trial by jury of all issues so triable as a matter oflaw.


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TIJRlSDICTION3. This is an action for damages brought for damages above the jurisdictional limit of thiscourt for violations of:

1. Common Law Fraud;II. Conspiracy to Defraud;III. Florida Statutes seetion 559.72;IV. 15 U.S.C. l692k(d) (federal fair debt collection practices);V. 15 U.S.C. 1641 (TILA) for which jurisdiction is conferred by 1640(e);VI. 24 C.F.R. 3500.21 {RESPA) jurisdiction conferred by 12 U.S.C. 2614;VII. Abuse of process;

VENUE4. Venue is proper in the County of Seminole because that is where the cause of actionaccrued and that is also where the subject property is located, pursuant to Florida Statutes section47.011.

PARTIES Counter-Plaintiffs 5. Counter-Plaintiff, CHARAN G. KUMAR, (hereafter, "Kumar") is a resident of the Stateof Florida, County of Seminole: and he owns the property that is the subject of the complaint.

Counter-Defendants6. Counter-Defendant, WELLS FARGO BANK, N.A., ("Wells Fargo."), is an unknowntype of business entity doing business in the State ofFlorida. Wells Fargo is also the plaintiff inthis action and has sued the counter-plaintiff for foreclosure of the subject property.

7. Counter-Defendant SAND CANYON CORPORATION, flkla OPTION ONEMORTGAGE ("Sand Canyon") is a Florida foreign registered corporation with its principalplace of business in California. It has owned and/or serviced thousands ofmortgages thatoriginated in the State of Florida.

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8. Counter-Defendant SHAPIRO, FISHMAN & GACHE, LLP (hereafter, "Shapiro &Fishman") is a Florida registered limited liability partnership. It' s actual, as opposed to apparent,managing members are GERALD SHAPIRO, BARRY FISHMAN AND RONALD GACHE.

9. Counter-Defendant GERALD SHAPIRO ("Shapiro") is an individual person who is aFlorida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro &Fishman") a Florida limited liability partnership acting as a law firm on behalfof CounterDefendant Wells Fargo. On information and bel ief he is a resident of the State of Florida. GeraldShapiro directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

10. Counter-Defendant BARRY FISHMAN ("Fishman") is an individual person who is aFlorida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro &Fishman") a Florida limited liability partnership acting as a law firm on behalf of CounterDefendant Wells Fargo. On information and belief he is a resident of the State ofFlorida. BarryFishman directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

11. Counter-Defendant RONALD GACHE ("Gache") is an individual person who is aFlorida licensed attorney and a partner of Shapiro, Fishman & Gache, LLP, ("Shapiro &Fishman") a Florida limited liability partnership acting as a law firm on behalf ofCounterDefendant Wells Fargo. On information and beliefhe is a resident of the State ofFlorida.Ronald Gache directed and controlled Shapiro & Fishman. He is sued in his individual capacity.

12. Counter-Defendant JESSICA CONTE ("Conte"), is a resident of the State ofFlorida, andis an employee attorney working for Shapiro & Fishman and is sued in her individual capacity.

13. Counter-Defendant NATALIE CURTS ("Curts"), is a resident of the State of Florida, andis an employee attorney working for Shapiro & Fishman and is sued in her individual capacity.

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GENERAL ALLEGATIONS 14. All conditions precedent to the bringing ofthis action have been performed, waived orexcused.

15. Mr. Kumar is an obligor on a certain federally related mortgage loan secured on hisresidence in the State ofFlorida. (Note: reference to "mortgage loans" means the mortgage noteand security agreement.) Mr. Kumar does not know the identity of the true mortgagor and ownerand holder of the note but he i8 confident is not one of the defendants or any entity referenced inthis counter-complaint.

16. Counter-Defendants Gerald Shapiro, Barry Fishman and Ronald Gache agreed to createand did create an enterprise where agents of Defendant Shapiro & Fishman and CounterDefendant Sand Canyon (and possibly other entities) would create and execute false assignmentsof mortgages on cases wherein Counter-Defendant Shapiro & Fishman was the foreclosingattorney because it resulted in millions of dollars in fees to Counter-Defendant Shapiro &Fishman and Counter-Defendant Sand Canyon. These funds were reinvested in the variousentities of the enterprise to assure continued operation. Counter-Defendant Shapiro & Fishmanhad an agreement with Counter-Defendant Sand Canyon wherein Counter-Defendant Shapiro &Fishman's agents would create these false assignments ofmortgage, then the Counter-DefendantShapiro & Fishman agents would act as agents of Counter-Defendant Sand Canyon - with theapproval and consent of Counter-Defendant Sand Canyon - and execute those false assignmentsofmortgage in order to create the appearance of a legitimate transfer of an interest in a mortgage.Counter-Defendant Sand Canyon went along with this conspiracy to defraud scheme because itwas paid money to do so. When done on a grand scale, this type of creation of fraudulentassignments is known as "robosigning". Counter-Defendant Wells Fargo knew that falseinterests in mortgages were being fraudulently created in Counter-Defendant Wells Fargo's nameby Counter-Defendant Shapiro & Fishman. Counter-Defendant Wells Fargo was a party to theconspiracy to defraud through i,ts intentionally acquiescence in this arrangement because itresulted in Counter-Defendant Wells Fargo's successful foreclosures ofFlorida real property.This practice impacted interstate commerce because all the loans were federally related and

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many of these properties were insured by federal government sponsored entities such asFannieMae, FreddyMac and the FHA.

17. On March 18,2009, Dale M. Sugimoto, President of Counter-Defendant Sand Canyon,executed a Declaration under penalty ofperjury which was then filed in the United StatesBankruptcy Court in the East District ofLouisiana. Therein, Sugimoto clearly stated on thesecond page, line 6, that Sand Canyon did not own any residential real estate mortgages.(Exhibit "A")

18. On and after March 1R, 2009, as a pattern and practice, Counter-Defendant Shapiro &Fishman and its agents continued to create and execute many fraudulent assignments ofmortgages on behalf of Counter-Defendant Sand Canyon. Through this post March 18, 2009process, Counter-Defendant Shapiro & Fishman, its agents, and Counter-Defendant SandCanyon sold and transferred Counter-Defendant Sand Canyon's alleged ownership interests insubject mortgage loans to various plaintiffs in actions wherein Counter-Defendant Shapiro &Fishman were plaintiff' s counsel.

19. Counter-Defendants Shapiro & Fishman, its agents, and Counter-Defendant Wells Fargoused the U.S. Mails and interstate wires to send these false and fraudulent assignments to variousdefendants in foreclosure actions and to the courts for filing in order to convince the judges andparties that Counter-Defendant Wells Fargo had a legitimate ownership interest in the subjectmortgage loans. This falsely bolstered all the foreclosure cases, improved debt collection andassured judgments of foreclosure against these defendants.

20. On or about January 8, 2010 Counter-Defendant Wells Fargo through their attorneys,Counter-Defendant Shapiro & Fishman and its agents, filed a complaint for foreclosure inSeminole county against Kumar. This complaint is case number 10-CA-0000IO-14-G and itwas signed by Counter-Defendant Conte. In the complaint, Counter-Defendant Wells Fargofalsely claimed that it obtained either the right to enforce the subject mortgage loan or that it

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owned the subject mortgage loan, by way of an assignment from Counter-Defendant SandCanyon.

21. Counter-Defendant Conte was under an affirmative duty to make a reasonableinvestigation of the facts to de:ternline whether or not the assignment of the mortgage upon whichcase number Case No. 1O-CA-OOOO10-14-G was based was true or false. Her employer,Counter-Defendant Shapiro & Fishman and their actual managing members Counter-DefendantsGerald Shapiro, Barry Fishman and Ronald Gache, as Florida licensed attorneys, were also underan affirmative duty to ensure that proper policy and procedures were in place to permit theirattorneys to exercise discretion to reject pleadings that impaired candor to the tribunal andparties. However, Counter-Defendants Gerald Shapiro, Barry Fishman and Ronald Gache knewthat if reasonable investigative procedures were in place that it would make their scheme todefraud very difficult, if not impossible to carry out as attorneys exercising their ownindependent judgment and ethics would very likely not file the fraudulent assignments andcomplaints based thereon. At the time that Counter-Defendant Conte signed this complaint, sheknew or should have known the assignment was false. Counter-Defendant Conte was a party tothe conspiracy to defraud because she signed the complaint regardless of its truth or falsity. Shesigned it because Counter-Defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman andRonald Gache created either a written policy or an unwritten policy and a pattern ofpracticewherein its attorneys employment would be negatively affected if those attorneys refused to signcomplaints merely because of false assignments and Counter-Defendant Conte didn't want heremployment to be negatively affected.

22. After being served with the foreclosure complaint, Mr. Kumar advised Counter-Defendant Shapiro & Fishman and Counter-Defendant Conte that the foreclosure case wasclearly based on a fraudulent assignment of mortgage and that he demanded corrective action betaken and the debt verified pursuant to the federal fair debt collection practices act. CounterDefendant Conte intentionally failed to take corrective action to remove the false assignment ofmortgage from the court record and failed to advise the court and parties of the false nature of the

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assignment ofmortgage out of fear of her employment being negatively affected by CounterDefendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and Ronald Gache.

23. On or about March 26,2010, Counter-Defendant Curts sent written debt verificationthrough the U.S. Mails to Mr. Kumar which included copies of documents purporting to validatethe alleged debt. (Exhibit B) These documents were also signed by agents ofCounter-DefendantSand Canyon. These documents included a false assignment of the subject mortgage loanexecuted by the dual agents ofCounter-Defendant Sand Canyon and Counter-Defendant Shapiro& Fishman. The debt validation letter was signed by Counter-Defendant Curts and it falselymisrepresented that Counter-Defendant Wells Fargo owned and held an interest in Mr. Kumar'smortgage loan.

24. The false validation letter was intended to collect a debt not owed by Mr. Kumar toCounter-Defendant Wells Fargo and to Counter-Defendant Shapiro & Fishman. The purportedvalidation letter demanded payments of amounts not authorized by any contract or order of theCourt. These include "FORECLOSURE ATTORNEYS FEES AND COSTS" of$3,531.00,APPRAISAL FEE of$100.00, "BORROWER INTERVIEW FEE" OF $65.00, and"CORPORATE ADVANCE" of $80.00. The validation letter was also confusing because itstated that Counter-Defendant Shapiro & Fishman represented American Home MortgageServicing, Inc. and it demanded that Mr. Kumar make payoff to American Home MortgageServicing, Inc. and not to Counter-Defendant Wells Fargo.

25. Counter-Defendant Wells Fargo claims an interest in the Kumar mortgage loan as trusteeof the REMIC trust known as "Option One Mortgage Loan Trust 2007-FXD2" (hereafter, the"trust"). However, neither Counter-Defendant Wells Fargo or Counter-Defendant Sand Canyonhave or had an interest in the subject mortgage loan for several reasons. First, the trust closed onMarch 1, 2007 and the subject mortgage loan had not been transferred into the trust by theclosing date. Second, the trustee is prohibited from acting ultra vires to transfer the subjectmortgage loan into the trust afte:r the closing date. (Note: The Servicing and Pooling Agreement

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http:///reader/full/of$3,531.00http:///reader/full/of$100.00http:///reader/full/of$3,531.00http:///reader/full/of$100.00


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for the Trust can be found at the following website: http://www.secinfo.com/dqTm6.u134.c.htm#lstPage.) Third, the assignment of mortgage by Counter-Defendant SandCanyon is false. Fourth, the indorsements on the note are false, fraudulent and unauthorized.

26. Counter-Defendant Wells Fargo and its agents made negative credi t references on Mr.Kumar's credit, they sent dunning letters to Mr. Kumar claiming that it was the rightful owner ofhis mortgage. Mr. Kumar relied on these misrepresentations to his detriment as he paid moniesto Counter-Defendant Wells Fargo. The false assignment of mortgage was a materialmisrepresentation designed to bolster the false belief in Mr. Kumar that Counter-Defendant WellsFargo was the rightful owner of the Kumar mortgage. When Mr. Kumar questioned CounterDefendants Wells Fargo, Shapiro & Fishman and its agents about the legitimacy of CounterDefendant Wells Fargo's ownership in his mortgage, those Counter-Defendants responded withfurther dunning letters and misrepresentations that the debt owed to Counter-Defendant WellsFargo was legitimate.

27. Mr. Kumar initially relied upon these false and fraudulent misrepresentations to hisdetriment when he conveyed this information to his wife and it caused extreme marital discordbetween them as it was learned that he had made a financially devastating error in failing toensure that their mortgage was held by its true owner, by making payments to Wells Fargo whenin fact, those were wasted funds that were not going to the true owner and that the ownership oftheir residence was at substantial risk. This resulted in great emotional suffering, loss ofcompanionship, loss of enjoyment of life, loss of consortium, disruption to his children withuncertainty as to where they would live and go to school, and physical discomfort in loss ofappetite, loss of sleep and irritable digestive symptoms.

COUNT I COMMON LAW FRAUD

Counter-Plaintiff Kumar v. All Counter-Defendants 28. Counter-plaintiff Kumar reaffIrms and re-alleges paragraphs 1 through 27 herein above asif set forth fully herein below.

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29. At all times material hereto, counter-defendants Sand Canyon, Wells Fargo, Shapiro &Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts hadactual knowledge that their written statements as to alleged ownership ofMr. Kumar's mortgageloan by Wells Fargo, the written statements as to the assignment of mortgage, the legalentitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were falsestatements of material fact which were false when made and known by said counter-defendantsto be false when made.

30. Counter-defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and RonaldGache directed and controlled the conduct of counter-defendants Jessica Conte and NatalieCurts, who made the subject false statements with the specific intent that Mr. Kumar rely thereonand with the separate specific intent, which separate specific intent was unknown to Mr. Kumarat the time, to defraud Mr. KUill ar.

31. Mr. Kumar reasonably rdied upon the written statements of counter-defendants and actedthereon, including but not limited to paying monies to Counter-Defendant Wells Fargo, advisinghis spouse of the financially devastating error he made in reliance upon the materialmisstatements.

32. As a direct and proximate result of the actions and course of conduct of Counter-Defendants, Mr. Kumar has suffered damages.

33. The fraudulent conduct engaged in by the Counter-Defendants constitutes a separate andindependent tort separate and apart from any breach of any contract.

34. The deliberate and concerted actions engaged in by the counter-defendants as set forthabove and under the circumstances set forth above constitutes the type of fraud for whichattorneys' fees are awarded, and as such, Plaintiffs demand the assessment of their attorneys' fees

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against the Defendants. Baya v. Central and Southern Florida Flood Control District, 184 So.2d501 (Fla. 2d DCA 1966)

35. WHEREFORE, Counter-Plaintiff Kumar demands the entry ofFinal Judgment againstthe Counter-Defendants for compensatory damages, interest, costs, attorneys' fees, and any otherand further relief which is just and proper under the totality ofthe circumstances.

COUNT II CONSPIRACY TO DEFRAUD

Counter-Plaintiff Kumar v. All Counter-Defendants 36. Counter-plaintiff Kumar reaffirn1s and re-alleges paragraphs 1 through 27 herein above asif set forth fully herein below.

37. At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curtsagreed, between and among themselves and in combination with each other and various agents,as to each overt act in furtherance of the conspiracy and enterprise, to engage in unlawful actionsfor a common purpose, to wit: to perpetrate a fraud upon Mr. Kumar through fraudulent writtenrepresentations as to the ownership of the mortgage, amounts due thereon, threats of foreclosureand fraudulent foreclosure filings whereby the Counter-Defendant Wells Fargo would obtain theuse and benefit, under fraudulent pretenses, ofMr. Kumar's real property at the expense ofMr.Kumar and without compensating Mr. Kumar therefor; to unlawfully convert Mr. Kumar's realproperty and permanently deprive him thereof; and to cause all deleterious consequences of theCounter-Defendants' actions to be saddled upon Mr. Kumar, which consequences include but arenot limited to the loss of real property; loss ofmoney; the incurring of expenses; and the adverseeffects of claimed defaults and foreclosures placed on his and his families emotional stability;and the loss ofMr. Kumar's credit as negative reports were made thereon by the CounterDefendants.

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38. At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts hadactual knowledge that their written statements as to alleged ownership of Mr. Kumar's mortgageloan by Wells Fargo, the written statements as to the assignment of mortgage, the legalentitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were falsestatements of material fact which were false when made and known by said counter-defendantsto be false when made.

39. Counter-defendants Shapiro & Fishman, Gerald Shapiro, Barry Fishman and RonaldGache directed and controlled the conduct of counter-defendants Jessica Conte and NatalieCurts, who made the subject false statements with the specific intent that Mr. Kumar rely thereonand with the separate specific intent, which separate specific intent was unknown to Mr. Kumarat the time, to defraud Mr. Kumar.

40. Mr. Kumar reasonably relied upon the written statements of counter-defendants and actedthereon, including but not limited to paying monies to Counter-Defendant Wells Fargo, advisinghis spouse of the financially devastating error he made in reliance upon the materialmisstatements.

41. As a direct and proximate result of the overt, concerted, and conspiratorial actions of thecounter-defendants, counter-plaintiff has suffered significant damages well in excess ofthejurisdictional limit of this Court.

42. The conspiracy to defraud and convert engaged in by the counter-defendants constitutes aseparate and distinct independent tort which is separate and apart from any breach of anycontract.

43. The deliberate and concerted actions engaged in by the counter-defendants as set forthabove and under the circumstances set forth above constitutes the type of fraud for which

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attorneys' fees are awarded, and as such, counter-plaintiff demands the assessment of attorneys'fees against the counter-defendants. Baya v. Central and Southern Florida Flood ControlDistrict, 184 So.2d 501 (Fla. 2d DCA 1966)

44. WHEREFORE, Counter-Plaintiff Kumar demands the entry afFinal Judgment againstthe Defendants for compensatory damages, interest, costs, attorneys' fees, and any other andfurther relief which is just and proper under the totality of the circumstances.

COUNT III VIOLATION OF FLORIDA CONSUMER COLLECTION PRACTICES ACT

FLORIDA STATUTES SECTION 559.72, et. seq. Counter-Plaintiff Kumar v. All Counter-Defendants 45. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein aboveas if set forth fully herein below.

46. F.S. 559.72(9) provides (in pertinent part):Prohibited pract.ices generally. In collecting consumer debts, no personshall:(9) Claim, attempt, or threaten to enforce a debt when suchperson .. assert(s) the existence of some other legal right when such personknows that the right does not exist.

47. At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts hadactual knowledge that their written statements as to alleged ownership ofMr. Kumar's mortgageloan by Wells Fargo, the written statements as to the assignment ofmortgage, the legalentitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were falsestatements ofmaterial fact which were false when made and known by said counter-defendantsto be false when made.

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48. All Counter-Defendants have claimed, attempted to enforce a debt, or threatened toenforce a debt when such persons knew the debt was not legitimate and did not exist. Theyasserted the existence of the right to enforce the debt in the name of Counter-Defendant WellsFargo when they knew that the right did not exist.

49. As a direct and proximate result of the actions of the Counter-Defendants, Mr. Kumar hassuffered significant damages \vell in excess of the jurisdictional limit of this Court.

50. WHEREFORE, Counter-Plaintiff Kumar demands the entry of Final Judgment againstthe Defendants for compensatory damages, interest, costs, attorneys' fees, and any other andfurther relief which is just and proper under the totality of the circumstances.

COUNT IV VIOLATION OF 15 US.c. 1692

Federal Fair Debt Collection Practices Act (FDCPA), Counter-Plaintiff Kumar v. All Counter-Defendants

51. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein aboveas if set forth fully herein below.

52. Counter-Plaintiff Kumar is a consumer within the meaning of the FDCPA, 15 U.S.C. 1692a(3).

53. Counter-Defendants Sand Canyon, Wells Fargo, Shapiro & Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts are debt collectors within the meaning of the FDCPA, 15 U.S.C. l692a(6).

54. At all times material hereto, Counter-Defendants Sand Canyon, Wells Fargo, Shapiro &Fishman, Gerald Shapiro, Barry Fishman, Ronald Gache, Jessica Conte and Natalie Curts hadactual knowledge that their written statements as to alleged ownership ofMr. Kumar's mortgage

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loan by Wells Fargo, the written statements as to the assignment of mortgage, the legalentitlement to demand monies from Mr. Kumar and institute foreclosure proceedings were falsestatements of materia1 fact which were false when made and known by said counter-defendantsto be false when made.

55. These Counter-Defendants and their agents violated 15 U.S.C. 1692d by engaging inconduct the natural consequence of which is to harass, oppress, or abuse any person, and whichdid harass, oppress and abuse Mr. Kumar by falsely representing the character, amount, or legalstatus of the debt (15 U.S.C. 1692e(2; by sale or transfer of an interest in the debt that causedthe consumer to lose any claim or defense to payment of the debt, and in particular, byobfuscation of the true creditor (15 U.S.C. 1692e(6; by communicating or threatening tocommunicate to any person credit information which is known or which should be known to befalse, including the failure to communicate that a disputed debt is disputed (15 US.c. 1692e(8; by the use of any false representation or deceptive means to collect or attempt to collect anydebt or to obtain information concerning a consumer (15 US.C. 1692e(10); by the collectionof any amount (including any interest, fee, charge, or expense incidental to the principalobligation) unless such amount is expressly authorized by the agreement creating the debt orpern1itted by law (15 U.S.C. 1692f(1; by taking or threatening to unlawfully repossess ordisable the consumer's property (15 US.c. 1692f(6; by, within five days after the initialcommunication with counter-plaintiff in connection with the collection of any debt, failing tosend counter-plaintiff a written notice containing a statement that unless the consumer, withinthirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, thedebt will be assumed to be valid by the debt collector; a statement that if the consumer notifiesthe debt collector in writing within the thirty-day period that the debt, or any portion thereof, isdisputed, the debt collector will. obtain verification of the debt or a copy of a judgment againstthe consumer and a copy of such verification or judgment will be mailed to the consumer by thedebt collector; and a statement that, upon the consumer's written request within the thirty-dayperiod, the debt collector will provide the consumer with the name and address of the originalcreditor, if different from the current creditor (15 US.c. 1692g).

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56. WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages againstCounter-Defendants Sand Canyon, Wells Fargo, Shapiro & Fishman, Gerald Shapiro, BarryFishman, Ronald Gache, Jessica Conte and Natalie Curts for actual or statutory damages, andpunitive damages, attorney's D;!eS and costs, pursuant to 15 D,S.C. 1692k.

COUNT V VIOLATION OF TRUTH IN LENDING ACT (TILA),

15 U.S.C. 1641 Counter-Plaintiff Kumar v. Counter-Defendant Wells Fargo

57. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein aboveas if set forth fully herein below.58. 15 U.S.c. 1641(g) requires:

(1) In generalIn addition to other disclosures required by this subchapter, not later than 30 days afterthe date on which a mortgage loan is sold or otherwise transferred or assigned to a thirdparty, the creditor that is the new owner or assignee of the debt shall notify the borrowerin writing of such transfer, including-(A) the identity, addres:;, telephone number of the new creditor;(B) the date of transfer;(C) how to reach an agent or party having authority to act on behalf of the new creditor;(D) the location of the place where transfer of ownership of the debt is recorded; and(E) any other relevant iufornlation regarding the new creditor.

59. Counter-Defendants Wells Fargo failed to provide Mr. Kumar with notice of anassignment of the mortgage loan in violation of 15 U.S.C. 1641(g).

60. WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages againstCounter-Defendant Wells Fargo for damages, fees and costs as provided by law pursuant to 15U.S.C. 1640(a).

COUNT VI REAL ESTATE SETTLEMENT

PROCEDURES ACT (RESPA), 24 C.P.R. 3500.21(d) 15


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Counter-Plaintiff Kumar v. Counter-Defendants Wells Fargo and Sand Canyon61. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein aboveas if set forth fully herein below.

62. Counter-Defendant Sand Canyon represented that Counter-Defendant Sand Canyontransferred the note and mortgage andlor the servicing of the note and mortgage to CounterDefendant Wells Fargo. However, neither of these Counter-Defendants ever sent, and Mr.Kumar never received, notice of transfer or assignment of the note and mortgage or of theservicing of the note and mortgage.

63. Counter-Defendants Wells Fargo and Sand Canyon failed to provide any notice to Mr.Kumar of a transfer in servicing in violation of 24 C.F.R. 3500.21 (d), which requires:

Notices ofTransfer; loan servicing. (1) Requirement for notice. (i) Except as providedin this paragraph (d)(1 )(i) or paragraph (d)(1 )(ii) of this section, each transferor servicerand transferee servicer of any mortgage servicing loan shall deliver to the borrower awritten Notice ofTransfer, containing the information described in paragraph (d)(3) ofthis section, of any assignment, sale, or transfer of the servicing of the loan. Thefollowing transfers are not considered an assignment, sale, or transfer ofmortgage loanservicing for purposes of this requirement if there is no change in the payee, address towhich payment must be delivered, account number, or amount of payment due:(A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions ofservicers or subservicers; and (C) Transfers between master servicers, where thesubservicer remains the same.(2) Time ofnotice. (i) Except as provided in paragraph (d)(2)(ii) of this section:(A) The transferor servicer shall deliver the Notice ofTransfer to the borrower not lessthan 15 days before the effective date of the transfer of the servicing of the mortgageservicing loan; (B) The transferee servicer shall deliver the Notice ofTransfer to theborrower not more than 15 days after the effective date of the transfer; and (C) Thetransferor and transferee servicers may combine their notices into one notice, which shallbe delivered to the borrower not less than 15 days before the effective date of the transferof the servicing of the mortgage servicing loan. (ii) The Notice ofTransfer shall bedelivered to the borrower by the transferor servicer or the transferee servicer not morethan 30 days after the effective date of the transfer of the servicing of the mortgageservicing loan in any ca:3e in which the transfer of servicing is preceded by:(A) Termination of the contract for servicing the loan for cause; (B) Commencement of

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proceedings for bankmptcy of the servicer; or (C) Commencement of proceedings bythe Federal Deposit Insurance . . .

64. WHEREFORE, Counter-Plaintiff Kumar demands judgment for damages againstCounter-Defendants Wells Fargo and Sand Canyon for damages, fees and costs as provided bylaw.

COUNT VII ABUSE OF PROCESS

Counter-Plaintiff Kumar v. Counter-Defendant Wells Fargo, Shapiro & Fishman and Conte. 65. Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein aboveas if set forth fully herein below.

66. Counter-Defendants Wells Fargo, Shapiro & Fishman and Conte made an illegal,improper, or perverted use of process.

67. Counter-Defendants Wells Fargo, Shapiro & Fishman and Conte had an ulterior motive orpurpose in exercising the illegal, improper or perverted process.

68. Counter-Plaintiff was injured as a result of Counter-Defendant's actions.

69. Counter-Defendants have no legal justification to bring an action to try to foreclose uponhis property.

70. WHEREFORE, Plaintiflprays for judgment against Counter-Defendants Wells Fargo,Shapiro & Fishman and Conte as follows:

I. General Damages;II. Consequential Damages;III. Actual Damages;IV. Costs;V. Attorney's fees if and when an attorney is hired to represent Plaintiff; and

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\

VI. Such other relief as this Court deems just and proper.I /'"

Char'

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by

U.S. mail on the 9th day of December, 2011, to Ian Luthringer, the law finn ofHinshaw &Culbertson, LLP, 50 N Laura St Ste 2200, Jacksonville, Florida 32202-3625 for WELLS FARGOBANK, N.A.; and to Jessica Conte of Shapiro, Fishman & Gache, LLP, 4630 WoodlandCorporate Blvd., Suite, 100, Tampa, FL 33614 for WELLS FARGO BANK, N.A., INC., SANDCANYON CORPORATION, j1k!a OPTION ONE MORTGAGE CORP., SHAPIRO,FISHMAN & GACHE, LLP, GERALD SHAPIRO, BARRY FISHMAN, RONALD GACHE,JESSICA CONTE, and NATALIE CURTS.

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