TOTED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION
ABDffiL ECHFVERRIA and
ISABEL SANTAMARIA
Plaintiffs, CASE NO; 6;14-cv-00486-CEM-GJK
BANK OF AMERICA, N.A., URBAN
SETTLEMENT SERVICES d/b/a URBAN
LENDING SOLUTIONS and CARLISLE & GALLAGHER
CONSULTING GROUP, INC.
Defendants,
I
PLAINTIFFS' SECOND AMENDED VERIFIED COMPLAINT
JURY TRIAL DEMANDED
Plaintiffs, ABDIEL ECHEVERRIA and ISABEL SANTAMARIA, husband and wife,/?ro se,
sue Defendants BANK OF AMERICA, N.A., URBAN SETTLEMENT SERVICES d/b/a
URBAN LENDING SOLUTIONS; CARLISLE AND GALLAGHER CONSULTING GROUP,
INC. and allege as follows:
L PRELIMINARY STATEMENT
I. This is an action for damages which exceed the jurisdictional limit of this Court
exclusive of interest, attorneys' fees, and costs, which damages are recoverable under the claims
set forth herein including Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"); Fair
Debt Collection Practices Act ("FDCPA") 15 U.S.C. I692-I692p; Fair Credit Reporting Act
("FCRA") 15 U.S.C. 1681; Breach of Contract; Breach of Fiduciary Duty; Civil Conspiracy
To Defraud; Fraudulent Misrepresentation; Fraudulent Concealment, Intrinsic Fraud and
Extrinsic Fraud; which damages have been suffered by the Plaintiffs due to the actions and
conduct of the Defendants as set forth herein below; for damages and other statutory relief, and
for trial bv jury of all issues so triable as a matter of right. This instant action does NOT
involve allegations regarding the origination and securitization of the Plaintiffs' alleged
mortgage or alleged Note at this time. This instant action involves "NEW FACTS", "NEW
EVIDENCE" and "NEW DEFENDANTS" which were not previously disclosed or
available to the Plaintiffs in any prior action. This instant action includes allegations of
extrinsic fraud committed by all named defendants in prior litigation and "ON-GOING
FRAUD" that continued through at least the year 2014. Again, to make matters clear in this
amended complaint. Plaintiffs bring upon this action for new evidence of "concealed" acts and
extrinsic fraud committed by the Defendants in prior litigation, as well as "on-going" fraud,
misrepresentations, debt collection and credit violations and harassment committed against the
Plaintiffs by all named Defendants.
H. JURISDICTION AND VENUE
2. This court has diversity jurisdiction over the lawsuit under 28 U.S.C. 1332(a)(l),
because the Plaintiffs and Defendants are citizens of different states and the amount in
controversy exceeds $75,000, excluding interest and costs.
3. Jurisdiction of this Court is proper pursuant to 15 U.S.C. 1692k(d), which permits an
FDCPA action to be brought in any court of competent jurisdiction. Venue in this District is
proper in that the Defendant BANK OF AMERICA, N.A. ("BANA"), transacts business here
and the conduct complained of occurred here.
4. Jurisdiction of this action is proper in this Court as Defendant BANK OF AMERICA,
N. A. maintains numerous offices for the conduct of regular and continuous business within the
State of Florida including Brevard County, Florida, and as numerous of the acts set forth herein
were committed by BANK OF AMERICA, N.A. during the time that it was registered to do
business in Florida.
5. Venue of this action is proper in this Court as applicable Florida law provides
that if venue is proper as to any one Defendant in multi-Defendant litigation that venue
is proper as to all Defendants, and as venue is proper as to Defendant BANK OF AMERICA,
N. A., venue is proper to all Defendants.
m. PARTIES
6. Abdiel Echeverria and Isabel Santamaria (herein after the "ECHEVERRIAS" or
"PLAINTIFFS"), husband and wife, are residents of Brevard County, Florida and over the age of
18.
7. Defendant BANK OF AMERICA, N. A. ("BANA") is a banking association that has
its main office located in North Carolina, United States of America. Defendant Bank of America,
N. A. may be served with process by serving its registered agent, CT Corporation, 1200 S. Pine
Island Rd. Suite 250, Plantation, Florida 33324.
8. URBAN SETTLEMENT SERVICES d/b/a URBAN LENDING SOLUTIONS
("URBAN") is a limited liability corporation organized imder the laws of Pennsylvania which
does business throughout the United States and may be served with process by serving its
registered agent: CT Corporation, 1200 S. Pine Island Rd. Suite 250, Plantation, Florida 33324.
9. CARLISLE & GALLAGHER CONSULTING GROUP, INC. ("CGCG") is a
corporation organized under the laws of North Carolina which conducts business in Florida and
throughout the United States and may be served with process by serving its registered agent:
Thomas G. Carlisle, 841 Prudential Drive, Jacksonville, FL 32207.
FACTS
10. Plaintiffs Abdiel Echeverria and Isabel Santamaria's mortgage loan was transferred
from Taylor, Bean & Whitaker (TBW) to Defendant Bank of America, N. A. on or around
August 2009. Plaintiffs had already invested a substantial monetary investment in the home, over
$24,000.00 down payment and to date over $60,000.00 in upgrades and repairs. Plaintiffs were
not in default when the loan was transferred to Defendant Bank of America (BANA). The
Plaintiffs intention was to live in the home long-term after investing their "life-savings" into said
property. Plaintiffs began communicating with Defendant BANA on or around October 2009.
After several requests for assistance regarding their loan, the Plaintiffs pre-qualified for a HAMP
modification of their loan in January 2010. Plaintiffs were not aware that they would be the
object of a fraudulent scheme perpetrated by all named Defendants to induce them to default and
cause foreclosure for their financial gain.
11. During the following months and years that followed, to fulfill their fraudulent
objective, the amount of abuse and harassment that ensued on behalf of Bank of America was
beyond comprehension. The Plaintiffs were also not aware that Bank of America was utilizing
third party defendants such as Defendants Urban Lending solutions ("URBAN") and Carlisle &
Gallagher Consulting Group ("CGCG") to carry out many of these illegal activities against them.
12. Until recently however, the Plaintiffs had no knowledge of the existence of the
"concealed" defendants "Urban" and "CGCG" and only became aware of their direct
involvement due to a recent investigation in 2013 that exposed a fraudulent scheme that was
perpetrated by all named defendants against the plaintiffs and brought upon further new
evidence, facts, and parties that were intentionally concealed from the Plaintiffs by Defendant
Bank of America (hereafter "BANA") in prior litigation (See Judicial Notice, Doc. 40, Exhibits
A & B). It is now known that Urban Settlement Services d/b/a Urban Lending Solutions
(hereafter "Urban") and Carlisle & Gallagher Consulting Group, Inc. (hereafter "CGCG" or
"Carlisle") should have been defendants in the Plaintiffs prior claims. By Defendant Urban and
Defendant Carlisle's own admission, they were in privity with Defendant BANA in prior
litigation with the Plaintiffs (See Defendant CGCG's MTD, Doc.25, pg. 15; Defendant Urban's
MID, Doc. 28, pgs. 5 & 6). Plaintiffs were not aware of their existence and were not aware of
their direct involvement in the fraud committed against them until December 13,2013. Had the
Plaintiffs known of such involvement in this fraudulent scheme, surely the Plaintiffs would have
added these co-conspirators as defendants at that time.
13. The Plaintiffs were not aware that many communications were not being received
from Bank of America as BANA had affirmed through mailings and even during discovery in
prior litigation'. Until recently^, the Plaintiffs were not aware that Bank of America was utilizing
Urban (and quite possibly CGCG) to store, manipulate and alter the Plaintiffs' sensitive
documents in their system. The Plaintiffs were not aware that Defendants Urban and Carlisle,
who were clearly not qualified for this task when some were known to have no experience in this
' See Judicial Notice, Doc. 57, Exhibit B, in which Defendant clearly states in Interrogatory No. 11 after Plaintiffs
ask regarding a letter that Carlisle & Gallagher's Scott McDaniel (formerly believed to be employed by BANA)
submitted to the OCC "BANA states that attached to and made part of the Plaintiffs' Amended Complaint as Exhibit
BN (McDaniel's letter) is a letter from Bank of America, N.A. addressed to the Plaintiffs dated November 24, 2010,
inviting the Plaintiffs to submit missing information to their workout negotiator". Not only was this statement false
but this discovery document was notarized under oath.
^ See Exhibit A.
fieldl were handling and determining the Plaintiffs eligibility for HAMP. The Plaintiffs were not
aware that Urban and CGCG were being utilized to respond and investigate complaints by
regulatory agencies filed on behalf of the Plaintiffs. The Plaintiffs were oblivious to the fact that
Urban and CGCG were utilized by Bank of America to handle requests and complaints regarding
the Plaintiffs' escrow and payment history. Bank of America's lack of due diligence involving
these third-parties and by not properly investigating these reports, communications and records
was also detrimental to the Plaintiffs.
14. Nonetheless, it has been determined that this negative outcome was Bank of
America's aggressive plan against the Plaintiffs all along. Bank of America's scheme to defraud
the Plaintiffs in every way imaginable which included the involvement of other entities so that
foreclosure"* would be eminent remained incognito for quite some time.
15. Each of the Defendants is liable as a primary and individual violator in making false
and misleading statements, concealing defendants and evidence during litigation, and for
participating in a fraudulent scheme and course of business that operated as a fraudulent or
deceitful party in this scheme.
16. All of the Defendants had motives to pursue a fraudulent scheme in furtherance of
their "common goal", i.e., causing foreclosures of homeowners by making false and misleading
^ See Exhibit A. Former Urban Lending Manager Schnackenberger said that many of those handling complex
customer files were former Taco Bell employees and that it was a recipe for disaster.
" Ex-Bank of America employee William Wilson testified that delay and rejection programs by Bank of America
were methodically carried out under the overall direction of Patrick Kerry, a Vice President who oversaw the entire
eastern region. Mr. Wilson saw people that had done everything that Bank of America had asked of them were
losing their homes to foreclosure because Bank of America had chosen not to hire enough underwriters and was
reducing its backlog with unethical and fraudulent methods. Mr. Wilson also stated that Bank of America would
instruct them to "delay" so that they could push "internal" refinance so that Bank of America could profit. Once the
bank rejected the homeowner after a long delay, if they were not foreclosed on, they would offer an in-house
alternative that would make the bank money. Mr. Wilson's affidavit filed in this case as a Judicial Notice, Doc. 48.
statements and concealing material adverse information. Each party had a financial interest. The
ring-leader. Bank of America, had the most profitable interest and rewarded Urban and Carlisle
for their fraud. Urban and Carlisle in turn, rewarded their employees for their fraud. Bonuses and
gift cards were graciously given for those employees who induced foreclosures by all
Defendants. This became one big happy racketeering family and the Plaintiffs were the victims.
17. The fraudulent scheme and course of business was designed to and did: (i) deceive
the public, including the plaintiffs; (ii) manipulating records and payments in their numerous
systems to reflect their common goal: foreclosure; (iii) cause plaintiff and other homeowners to
rely on their misrepresentations of who they were really communicating with; (iv) allowing the
Plaintiffs and regulators to rely on their investigations which were conducted in a fraudulent or at
best, careless manner; (v) allowing the Plaintiffs to rely on mailed statements that their payment
account information was corrected when it was not; (vi) deceiving the Plaintiffs and regulators to
believe through telecommunications and via U.S. Mail that they were communicating with Bank
of America's "Office of The CEO and President" or reliable Bank of America personnel when
they were not; (vii) purposely concealing and covering-up the true identities and involvement of
necessary defendants Urban and Carlisle thereby limiting the Plaintiffs investigations and
damages; (viii) harassing and threatening the plaintiffs and their family members; (ix) harassing
plaintiffs employer^ (x) causing financial, emotional and medical ruin of the Plaintiffs; (xi)
allowing this court to grant summary judgment based on fraud; and (xii) causing Plaintiffs loan
to be in foreclosure to fulfill its purpose.
URBAN SETTLEMENT SERVICES ("URBAhf)
' See Judicial Notice, Doc 55, BAC-000097; BAC-000126; BAC-000128, BAC-000131; BAC-000142; BAC-
000143; BAC-000155.
18. Urban Lending was one of the vendors hired to clear a huge backlog of complaints, at
least 15,000 of them that Bank of America had amassed in 2010. Urban was specifically
"brought in to handle grievances from lawmakers and regulators on behalf of borrowers, also
operated a mail-processing center for HAMP documents."
19. Unbeknownst to borrowers including the Plaintiffs, BANA instructed the Echeverrias
to return sensitive documents to Urban's locations. BANA used Urban as a "repository" for the
Plaintiffs' documents. In actual practice, and according to former Urban employees along with
former BANA supervisors Steven Cupples and William Wilson^, BANA designed Urban to
serve as a "black-hole" for the documents the PlaintitYs and other borrowers sent in through the
course of trying to obtain permanent HAMP modifications or during investigations and
governmental and regulatory complaints. The manner in which BANA set up and directed
Urban's processes guaranteed that these homeowners such as the Plaintiffs would not receive
proper investigations and in many cases resulted in foreclosures. Furthermore, this careless
disregard for the Plaintiffs' financial documents by Bank of America in the hands of Urban is in
direct violation of the Safeguard Rule.
20. Beginning in the year 2010, Plaintiffs were unknowingly submitting documents and
were unknowingly commimicating at times with Defendant Urban regarding their home. The
Plaintiffs complaints about payments that were submitted and not applied and regarding escrow
funds missing were also being handled at times by Urban at the direction of Defendant BANA.
21. Urban never revealed their true identity to the Plaintiffs. At all times. Urban would
identify themselves verbally and through written communications as Bank of America or Bank
* Numerous affidavits confirming these allegations were filed as a Judicial Notice, Doc. 48.
of America's Office of the CEO and President. This is not an ordinary title or department. This
name represents a "higher" office of a "higher" caliber which made the Plaintiffs feel that they
reached the pinnacle within Bank of America. Plaintiffs felt that their requests and documents
were being handled by "experienced" personnel within Bank of America. The Plaintiffs relied on
these misrepresentations. Requests for documents, complaints, and other investigations were
being handled at times by Urban and Carlisle & Gallagher as seen by the employee declarations
[Doc. 48], investigations conducted by Bloomberg [Exhibit A] and the computer entries filed as
a Judicial Notice [Doc. 55], not by Bank of America as the Defendants fallaciously affirmed.
22. Employees at Urban were instructed, at BANA's direction and with BANA's full
knowledge and support, to "close" service requests in a manner that would reduce the number of
outstanding requests and complaints as quickly as possible. Individual Urban employees were
expected to close dozens of files per day as per employee testimonies [Doc. 48]. Notations were
also made in the Plaintiffs' account to reflect that Plaintiffs were at fault when The Treasury or
other agencies such as HUD would conduct audits [Doc. 55]. Both BANA and Urban knew, and
intended, that this would result in the false and deceptive denial of HAMP modifications to
borrowers who were indeed eligible to receive them and resulted in false and deceptive
investigative results of the Plaintiffs file and account. This ultimately resulted in foreclosure as in
the case of the Plaintiffs. Urban gladly complied with Defendant BANA's fraudulent demands.
23. Urban Lending staff, struggling to meet BANA's quotas, resorted to "falsifying
records" and "improperly purging complaints", employees said [Exhibit A]. Urban sent letters
containing inaccurate statements on "Bank of America Office of the CEO and President"
stationery to lawmakers and U.S. agency officials who sought assistance on behalf of borrowers,
the former employees said. The Plaintiffs in this case were victims of this fraud. As noted in the
computer entries submitted to this court as a Judicial Notice, Doc. 48, Urban was also
responsible along with Bank of America and CGCG in making inaccurate and knowingly false
statements in their computer system. Urban used many systems by Bank of America but this log
appears to be only from one of the more than one dozen systems. There are several logs from
various systems that Bank of America utilizes for their fraud. Nonetheless, these records show
how Bank of America, Urban and CGCG falsified records, manipulated calls, and payments
regarding the Plaintiffs. This evidence further substantiates the Bloomberg investigation
conducted on behalf of the Plaintiffs (See Exhibit A).
24. The computer logs submitted as a Judicial Notice [Doc. 48] also demonstrate the
consistent calls placed to Plaintiff Isabel Santamaria's mother^ and even though she repeatedly
told Bank of America or their minions that the Plaintiffs did not live there, they continued to
harass the Plaintiffs mother.
25. The computer logs also show how Bank of America or their co-conspirators
consistently called Plaintiff Abdiel Echeverria's previous employment Home Depot even though
records that they had in their possession showed that the Plaintiff no longer worked there since
2004. The computer logs also name several employees but it is not specific as to what company
(BANA, Urban or CGCG) the employees worked for. Nowhere in these notations was it ever
disclosed that McDaniel and Perez for example, were NOT Bank of America employees. This
conspiracy had every intention to fool everyone, not only the Plaintiffs.
See Judicial Notice Doc. 55, BAC-000097; BAC-000101; BAC-000127; BAC-000128; BAC-000131; BAC-
000142; BAC-000143; BAC-000155.
26. It is also to be noted that Plaintiffs were continuously harassed by phone after several
"cease and desist" requests by Plaintiff Abdiel Echeverria after making Mrs. Santamaria very ill
with stroke-like symptoms in front of her then 9 year old autistic daughter in March 2010 .
27. After the Plaintiffs acquired an attorney in April 2010, the harassing calls to their
home, cell phones, mother's home and former employer continued. These calls also continued
during and well after litigation in 2011 and through early 2013. Ms. Gloria Perez^ was just one of
the Urban employees that contacted the Plaintiffs during litigation in 2011.
28. To recap. Defendant BANA utilized Urban to fraudulently commit the following
actions against the Plaintiffs;
1) . Harassing and threatening the Plaintiffs over the phone and via U.S. mail with
foreclosure while payments were being made'".
2) . Harassing the Plaintiffs with requests for documentation that had already been
submitted.
3) . Harassing and threatening Plaintiffs family members for over two years over the
phone at their place of residence even though they were notified several times that
Plaintiffs did not live there.
4) . Repeatedly trying to contact Plaintiffs at their former place of employment.
5) . Mishandling Plaintiffs sensitive and personal documents to the Plaintiffs'
detriment.
^ There are numerous psychological and psychiatric records that confirm these allegations and are readily available.
' See Judicial Notice, Doc. 55, BAC-000126 and BAC-000127. Nowhere in this computer log does it refer that
Perez was employed by Urban. All crucial information concerning the involvement of third-parties or the scheme
was hidden from the Plaintiff at all times.
' The notations on these logs (Judicial Notice, Doc. 55) clearly show the numerous times that the Plaintiffs,
particularly Isabel Santamaria, would become irate during these calls. The question is, why?
6) . Altering and manipulating entries in the system to reflect that Plaintiffs were not
submitting documents and that Plaintiffs were not submitting payments.
7) . Scattering the Echeverrias' valuable documents through several links in their
computer systems such as iPortal; LMA; LMF; HomeSaver or AS400 to trigger
denials at the direction of Defendant BANA.
8) . Manipulating entries in the system to reflect that Plaintiffs were not reachable
while knowing that Plaintiffs had an attomey and recent contact information was
provided months prior.
9) . Submitting false communications via U.S. Mail to the Office of the Comptroller
of the Currency (OCC), Attomey General, Congressman, Better Business Bureau,
and WFTV Reporter Todd Ulrich regarding the Plaintiffs.
10) . Submitting false communications and impersonating Bank of America's "Office
of the President" via U.S. Mail Office of the Comptroller of the Currency (OCC),
Attomey General, Congressman and WFTV Reporter Todd Ulrich in order to
mislead or cease investigations to the Plaintiffs' detriment.
11) . Verbally communicating with the Plaintiffs and other parties investigating the
Plaintiffs complaints and identifying themselves as Bank of America's Office of
the President to mislead the investigators and the Plaintiffs.
12) . Submitting misleading and inaccurate "Urban Reports''" regarding the Plaintiffs
in order to back-up false entries and denials in the system.
13) . Closing the Plaintiffs' "active" borrower file in the iPortal or SEIBEL system.
" See Judicial Notice, Doc. 55, BAC-000098; BAC-000112 and BAC-000138. Plaintiffs did not previously know
what these "Urban Reports" were until they became aware of Urban and their involvement in this fraud.
14) . Receiving bonuses and gift cards for closing files that resulted in foreclosures.
The Plaintiffs file was closed several times as seen in their logs'^. It is very likely
that many Urban reps received numerous gift cards off of the Plaintiffs'
misfortune.
15) . Participating in "extrinsic fraud" against the Plaintiffs by intentionally failing to
join as a necessary party in a previous lawsuit filed by the Plaintiffs.
29. Defendant Urban, by and through its agents, committed fraud against the Plaintiffs
and participated in numerous tortious acts against the Plaintiffs including the participation of
concealing their identity as a Defendant in any prior action while knowing that their own
employee Gloria Perez who made several misrepresentations to the Plaintiffs was specifically
named in the Plaintiffs' previous action. Unknowingly, the Plaintiffs also filed evidence of
mailings in this court in prior litigation of Urban's own address which the Plaintiffs once
believed was Bank of America's.
30. As seen above. Defendant Urban was a very willing and active participant in the
harassment, threats and fraud committed against the Plaintiffs at the direction of Defendant Bank
of America ("BANA"). Urban had a financial gain which was very lucrative by carrying out this
fraud against the Plaintifts and other homeowners. Discovery will also provide a more concise
involvement of other false communications by Defendant Urban.
Bank of America employee Teresa Terrelonge witnessed Bank of America employees and managers "change and
falsify" information in the systems of record and "remove" documents from homeowner's files which included
"falsifying" electronic records that would show that the borrower had not made payments or submitted documents.
Mrs. Terrelonge's affidavit was attached to Plaintiffs' Verified Complaint. See Judicial Notice Doc 48.
CARLISLE & GALLAGHER CONSULTING GROUP ("CGCG")
31. Carlisle & Gallagher was one of the vendors hired by Defendant Bank of America to
handle numerous borrower complaints including regulatory complaints and initiate HAMP
modification denials. Unbeknownst to the Plaintiffs, Defendant CGCG was an active participant
in a fraudulent scheme that was concealed from the Plaintiffs and from this court for a period of
time.
32. In mid 2010, or possibly sooner, CGCG also became involved in handling the
Plaintiffs' mortgage file regarding a HAMP modification and investigations initiated by
regulatory agencies and others on behalf of the Plaintiffs. There is a clear indication that CGCG
was also responsible in evaluating the Plaintiffs documents and submitting PLAMP denial notices
on behalf of BANA.
33. According to Bank of America's logs acquired by the Plaintiffs in mid-late 2011,
CGCG was a big player in submitting a HAMP modification denial letter dated September 24,
2010. Scott McDaniel'^ was also assigned to handle complaints submitted to the Office of the
Comptroller of the Currency (OCC), Attorney General, Congressman, Better Business Bureau,
and WFTV Reporter Todd Ulrich regarding the Plaintiffs. Mr. McDaniel maintained consistent
communication with these parties for several months. According to the OCC, they were in
constant communication with "the bank" which was not the case (see Exhibit C filed with
Plaintiffs' Verified Complaint, Doc. 2). Mr. McDaniel was impersonating "the bank's" Office of
the President and was even given a fallacious title as "Customer Advocate" of Bank of
Nowhere in these computer entries (Judicial Notice, Doc.55) does it specify that Scott McDaniel was employed by
Carlisle & Gallagher. Everything on these entries would lead anyone to believe that McDaniel was employed by
Bank of America. It is very likely that this log contains limited information or codes that only BANA and its co-
conspirators would understand. Plaintiffs had no indication that McDaniel was actually employed by CGCG.
America's "Office of the CEO and President". To all the parties involved, they were actually in
contact with "the bank" which is fraud.
34. The Plaintiffs were lead to believe that the Office of the CEO and President for Bank
of America was actually conducting a legitimate investigation, responding to governmental
officials and assisting them in acquiring a HAMP modification. Unknown to the Plaintiffs,
Defendant CGCG was communicating with the OCC and others to the Plaintiffs' detriment. As
seen by the constant inconsistencies, CGCG's responses triggered termination of the
Plaintiffs' investigations and all subsequent investigations were ignored or not given much
importance. CGCG and Urban, at the direction of Defendant Bank of America, responded to
all subsequent investigations in 2011 and beyond which stalled and were then dismissed.
35. Defendant Carlisle & Gallagher was also a key piece in carrying out this fraud to the
Plaintiffs' detriment. The Plaintiffs last hope was a positive outcome of this investigation but
instead, Carlisle & Gallagher's Scott McDaniel'* misrepresented facts in reliance that those
investigating these complaints would drop said investigations. CGCG's assignment was to boldly
lie to investigators and leading to a dismissal of the Plaintiffs' eomplaints. These actions resulted
in dismissals based on lies that forfeited the Plaintiffs' last hope in correcting their payments,
escrow, and ultimately caused a debt so high that they could no longer keep up with especially
since Mrs. Santamaria was already too ill to work because of the harassment and abuse cause by
Defendant BANA.
36. As stated in the Plaintiffs Verified Complaint, Mr. McDaniel's statements did not
follow thru as Plaintiffs continued to receive consistent threats from Defendant Bank of America
even after falsely affirming that the Plaintiffs were receiving assistance from Bank of America
There is reason to believe that other CGCG employees not named in this complaint are involved. A thorough
investigation during discovery will determine even more involvement on behalf of CGCG.
thereby continuing the Plaintiffs' ongoing economic injuries. CGCG's Scott McDaniel stated
that the Plaintiffs were in the process of receiving a "permanent" loan modification (see
Plaintiffs' Verified Complaint, Exhibit B&C) not a HAMP modification and the Plaintiffs
continued to be harassed and threatened by Defendant BANA or by Urban or by CGCG, who
really knows. The subsequent mailings included offers for "other" in-house loan modification
options at a much higher interest rate that were not HAMP and consistent requests that the
Plaintiffs "short-sale" the home or "Deed-in-Lieu of Foreclosure".
37. Discovery will also confirm other communications by Defendant CGCG with the
Plaintiffs. Plaintiffs were not aware of CGCG's involvement which was not only detrimental to
the outcome of the investigations that continued to induce the Plaintiffs' default but also
detrimental to the outcome of any subsequent investigation that the Plaintiffs were conducting.
38. Defendant Carlisle & Gallagher, by and through its agents, committed extrinsic fraud
against the Plaintiffs and participated in numerous tortious acts against the Plaintiffs including
the participation of concealing their identity as a Defendant in any prior action while knowing
that their own employee Scott McDaniel'^ was specifically named in the Plaintiffs' previous
action.
39. To recap, BANA conspired with CGCG to fraudulently commit the following actions
against the Plaintiffs:
I). Involvement in the DENIAL of the Plaintiffs HAMP modification.
^' Carlisle & Gallagher is responsible for the actions of its employee Scott McDaniel. Respondeat Superior is a legal
doctrine that holds the employer or principal responsible for the acts of its employees or agents committed within
the scope of employment. As such, Carlisle is responsible for his actions especially when Mr. McDaniel was named
in a lawsuit and committed fraud to mislead a regulatory investigation.
2) . Misleading investigators that had initiated an investigation on behalf of the
Plaintiffs with false statements regarding the Plaintiffs' status.
3) . Not conducting proper investigations which lead to the dismissal of Plaintiffs
complaints with regulatory agencies.
4) . Maintaining verbal and written communications with the Office of the
Comptroller of the Currency (OCC), Attomey General and Congressman Posey
while falsely impersonating "the bank" or Bank of America's Office of the
President thereby creating the sense of importance and reliance from all parties
involved including the Plaintiffs.
5) . Fulfilling Bank of America's goal in refusing to admit any fault by Bank of
America and blame the Plaintiffs instead.
6) . Fulfilling Bank of America's goal in conducting an investigation that would result
in imminent foreclosure for the PlaintitTs.
7) . Participating in a special forbearance agreement against the Plaintiffs without
their knowledge or consent.
8) . Participating in extrinsic fraud against the Plaintiffs by intentionally failing to as
join a necessary party in a previous lawsuit filed by the Plaintiffs.
40. Even though discovery would reveal more fraud on behalf of CGCG, CGCG's
involvement was detrimental to the Plaintiffs and helped cause the Plaintiffs to initiate litigation
pro se as a last resort against Bank of America in December 2010 while not being aware of
CGCG's direct involvement in these matters.
BANK OF AMERICA
41. In December 2013, after the completion of an investigation by Bloomberg which
featured Plaintiffs Isabel Santamaria and Abdiel Echeverria, the Plaintiffs became aware that
Defendant Bank of America had concocted a fraudulent scheme against the Plaintiffs and
concealed'^ valuable information and defendants from them that impeded proper investigations
before, during and for some time after prior litigation.
42. While the Plaintiffs were applying for a HAMP modification and were requesting
corrections and investigations regarding their mortgage account, they were not aware that third
parties such as Urban and CGCG were conducting incorrect investigations on the plaintiffs
account; evaluating and entering their personal documentation; remained in constant contact with
regulatory agencies regarding the plaintiffs; had verbal and written communications with the
plaintiffs, attorneys and regulatory agencies; all while maintaining that they were indeed "the
bank". Bank of America, or Bank of America's Office of the CEO and President and maintained
titles as if they were indeed employed directly by Bank of America thereby misrepresenting their
identity and information at the direction of Defendant Bank of America.
43. This is deceitful and illegal. At no time did Defendants Bank of America, Urban or
CGCG ever gave the impression that these communications, investigations and reports were not
The concealment can be effectuated by words, actions, or conduct which create a false impression covering up the
truth or which prevent the plaintiff from otherwise discovering a material fact. KEETON ET AL., supra note 1,
106, at 737; Eisert, 918 F. Supp. at 615.
being conducted by Bank of America who had a duty to disclose such information to the
plaintiffs or any persons who were authorized by the plaintiffs.
44. Deliberate hiding, non-disclosure, or suppression of a material fact or circumstance
(which one is legally or morally bound to reveal) with intent to deceive or defraud in a
contractual arrangement is fraudulent concealment. The Plaintiffs would have never agreed to a
loan modification or any type of contract with Bank of America if they would have known that
other parties that had little to no experience in the mortgage business would be handling their
documents and review. The Plaintiffs were also not aware that their payments were being applied
to "foreclosure'^" instead of towards their loan modification payments or towards their loan
(interest, principal & escrow) as they were supposed to. If the Plaintiffs would have been of
aware of this fraud, they would have resorted to other options. Plaintiffs lost a considerable
amount of money awaiting for a loan modification that never existed and lost their money to
"foreclosure fees" and payments were deleted instead of being applied to their account.
45. Defendant Bank of America hid material facts from the Plaintiffs during a period of
time before, during and after a contractual agreement with the Plaintiffs during a HAMP
modification, investigations, prior litigations and beyond. Defendants methodically eliminated
this evidence because in the hands of the plaintifts, it would have initiated further investigations
exposing this fraud and would have resulted in more damages involving other defendants as a
result.
" "While mere silence in business transactions does not generally amount to fraud, a party's 'duty to speak' is
triggered when [the] party's silence is accompanied by deceptive conduct or suppression of material facts results in
active deception." FE Digital Investments Ltd. v. Hale, 499 F. Supp 2d 1054, 1061 (N.D. 111. 2007). In other words,
the failure to disclose a material fact, if intended to induce or allow a false belief, is as much fraudulent conduct as is
making an affirmative misrepresentation.
See Judicial Notice, Doc. 55, BAC-000090; and Plaintiffs' Verified Complaint Doc. 2, Exhibit H, page 3.
46. Defendant Bank of America intentionally failed to disclose in prior litigation that
there were other parties involved in these claims. Bank of America proceeded to "conceal"
these necessary defendants and did not disclose them as required by the filing of a
"Certificate of Interested Persons and Corporate Disclosure Statement". Bank of America
concealed and allowed discovery to conclude, litigation to continue, and fraudulently
acquired summary judgment without disclosing these necessary defendants with the
intention that it would also impede further investigation on behalf of the Plaintiffs and
open up a "can of worms". This "extrinsic fraud" hampered litigation which resulted in a
fraudulently acquired summary judgment for the Defendant Bank of America.
47. Respondeat superior is the doctrine that states that an employer is responsible for an
employee. More precisely, it states that a master is liable for torts of its servants committed in the
course of their service. Corporations such as the Defendants in this action, act-tortiously or
otherwise-through their agents. For respondeat superior to apply to a legal case, an employee of
the company must have committed the crime for the benefit of the company, not for his or her
own benefit. The employees that were named in prior litigation (Case No. 6:10-cv-01933-JA-
DAB & Case No. 6:12-cv-1360-JA-KRS) represented the actions of their corresponding
companies and these employees benefited their companies by doing so.
48. Bank of America and their co-conspirators committed "extrinsic fraud" and "intrinsic
fraud" in prior litigation. The Plaintiffs have filed a Judicial Notice, Doc. 57, Exhibits A & B
which are Production of Documents and Interrogatories obtained from Defendant Bank of
America during discovery for Case No. 6: lO-cv-01933-JA-DAB and produced on March 19,
2012. In these discovery documents. Defendant BANA continued to conceal evidence and
defendants from the Plaintiffs.
Judicial Notice Doc. 57, Exhibit B - Defendants BAC Home Loans Servicing, LP
and Bank of America, N.A.'s Response to Plaintiffs' First Set Of Interrogatories:
1) . As per Interrogatory response No. 1, these interrogatories were answered by Bank of
America's Litigation Specialist Edward Cherkezian with the assistance of counsel.
Brienne Siriwan, Assistance Vice President, who verified and executed the verification of
this notarized document.
2) . In Interrogatory No. 2, Plaintiffs ask Defendant BAC/BANA: 'identify the location
and address of Defendant's office in addition to any other physical addresses and
locations at which Plaintiff conducts business or receives correspondence. " The
Plaintifts now know the answer to this interrogatory: Urban locations in Pittsburg and
Colorado and Carlisle & Gallagher.
3) . In Interrogatory No. 11, Plaintifts ask Defendant BANA: "Please state the reason
why Defendant Bank of America (BAC) and their "Customer Advocate " Scott McDaniel
affirmed to the OCC, Attorney General of Florida and Congressman Bill Posey that the
Plaintiffs were being consideredfor a "permanent" loan modification after they were
DENIED in September 2010 and the Plaintiffs did not submit further documentation? "
Defendant BANA's response to Interrogatory No. 11. "BANA objects to this interrogatory
because it is vague and ambiguous, BANA states that attached to and made
part of the Plaintiffs' Amended Complaint as Exhibit BNis a letter from Bank of
America, N.A. addressed to the Plaintiffs dated November 24, 2010, inviting the
Plaintiffs to submit missing documentation to their workout negotiator ".
49. This statement under oath is so fraudulent and deceiving that who knows where to
begin. The letter dated November 24, 2010 that Bank of America is referring to is the letter from
Carlisle & Gallagher's Scott McDaniel. Bank of America affirms that the fraudulent letter from
Carlisle & Gallagher's Scott McDaniel impersonating a Bank of America Customer Advocate
from Bank of America's Office of the President on Bank of America stationary is actually a
letter FROM Bank of America, N.A. Bank of America continues to hold firm that Scott
McDaniel is one of their employees. Furthermore, this statement further confirms what the
Plaintiffs are alleging and what the employee affidavits {see Judicial Notice, Doc. 48) have said
all along about missing documentation. There was no way that the Plaintiffs could have known at
that time that Defendant Carlisle & Gallagher was a non-disclosed defendant or that Defendant
Bank of America was holding back evidence.
4). In Interrogatory No. 15, Plaintiffs ask Defendant BAC/BANA: "Please identify what
is the process to "safeguard" all personal andfinancial documents (bank statements, tax
returns, pay stubs, social security numbers, etc. required for loan modification process)
submitted by the Plaintiffs and the other Defendant Bank of America's (BAC) customers
(via fax, mail or email) and how these documents are discarded or disposed of. "
BANA's response to Interrogatory No. 15: BANA objects to this interrogatory because it
is vague and ambiguous, irrelevant, calculated to harass, vex, annoy and is not
reasonably calculated to lead to the discovery of admissible evidence. This interrogatory
is designed to harass.
50. Defendant Bank of America's slithering response did not avoid a permanent
concealment of facts from the Plaintiffs. Eventually in 2013, employee affidavits surfaced and an
investigation by Bloomberg which featured the Plaintiffs was able to reveal what was really
happening to the Plaintiffs' financial documents which they were submitting consistently to Bank
of America since 2010 and who is now revealed as Defendants Urban and Carlisle as well.
Judicial Notice Doc. 57, Exhibit A - Defendant's Response to Plaintiffs'.... First
Request Production of Documents:
1). On page 10, Document Request #21, Plaintiff requests: "All documents and'or audio
recordings of telephone communications between the Plaintiffs and the Defendant".
Defendant BAC/BANA's response: "BANA objects to the request as overbroad, vague
and ambiguous, unduly burdensome, irrelevant, as not reasonably calculated to lead to
the discovery of admissible evidence, as calculated to harass, annoy, vex and delay, and
as calling for confidential or proprietary information".
51. Plaintifts requested these recordings to prove to the court the threats, lies and the
abusive behavior towards Plaintiff Isabel Santamaria on record. As stated prior in this complaint.
Plaintiff Isabel Santamaria suffered a severe stroke-like episode due to the barrage of abuse
endured by a Bank of America representative in March 2010 in front of her then 9 year old
autistic daughter. The representative was threatening the Plaintiff for over 20 minutes with
foreclosure if she did not pay an amount that she did not owe by a specific date. He was asking
for four (4) payments when they were only behind one (1) because Bank of America had asked
them to default in order to prove "hardship" for a HAMP modification. The Plaintiff had not yet
hung-up the phone when the chaos began. The episode was so severe that the Plaintiff had lapses
in memory but remembers "bits and pieces" however her daughter remembers everything.
52. Oddly enough, all notations of the call that took place that day in March 2010 were
"deleted" from the computer entries. The only reference regarding that call is in the computer
entries (Judicial Notice, Doc. 55) BAC-000104, SECTION-00002 where it states on date
03/31/2010: "HO spkw rep on 3/11", which obviously means "Homeowner spoke with rep on
March 11". These are the only notes regarding that horrible event. On 3/31/2010, Plaintiffs wrote
an email to BANA regarding the abuse that Mrs. Santamaria received and how ill she had
become as a result of all it and all of the unnecessary threats being received via mail as well. The
Plaintiffs' daughter had expressed to her psychologist days after the event took place what had
happened and there are psychological notes of the event. The Plaintiffs' daughter has repeated
this specific event and other moments of distress due to mailings and harassing phone calls from
Bank of America numerous times to her psychologist. The Plaintiffs daughter still recalls most
of what took place that day. Her psychologist evaluated her in 2012 that she is able to testify if
needed.
53. On February 10,2011, Defendant Bank of America (BANA) filed this "Certificate of
Interested Persons and Corporate Disclosure Statement" [Doc. 16, Case No. 6:10-cv-01933-JA-
DAB] and stated the following:
"Pursuant to Rule 7.1 of the Federal Rule of Civil Procedure, Defendant, BAC Home
Loans Servicing, LP (BAC) hereby provides its Certificate of Interested Persons and Corporate
Disclosure Statement:
1. The name of each person, attomey, association of persons, firm, law firm,
partner ship,and corporation that has or may have an interest in the outcome of this
action including subsidiaries, conglomerates, affiliates, parent corporations,
publicly-traded companies that own 10% or more of a party's stock, and all other
identifiable legal entities related to any party in the case:
(a) BAC Home Loans Servicing LP is controlled by BAC GP, LLC and BANA
LP, LLC, which are both wholly owned by Bank of America, National
Association (BANA). BANA is a wholly owned subsidiary of BANA Holding
Corp, which is a wholly owned subsidiary of BAC North America Holding
Company, which is a wholly owned subsidiary of NB Holdings Corp, which is a
wholly owned subsidiary of Bank of America Corporation. Bank of America
Corporation does not have any parent corporation and no publicly held company
has an ownership interest of 10% or more.
(b) Counsel for BAC is:
Akerman Senterfitt
William P. Heller, Esq.
William P. Gray, III, Esq.
Jessica L. Gavrich, Esq.
(c) Other parties that may have an interest in the outcome of this action are as
follows:
(i) Abdiel Echeverria (Plaintiff)
(ii) Isabel Santamaria (Plaintiff)
The name of every other entity whose publicly-traded stock, equity, or debt may be
substantially affected by the outcome of the proceedings:
N/A
3. The name of every other entity which is likely to be an active participant in the
proceedings, including the debtor and members of the creditors' committee (or if no
creditors' committee or twenty largest unsecured creditors) in bankruptcy cases:
N/A
4. The name of each victim (individual and corporate) of civil and criminal conduct alleged
to be wrongful, including every person who may be entitled to restitution:
N/A
I hereby certify that, except as disclosed above, I am unaware of any actual or potential
conflict of interest involving the district judge and magistrate judge assigned to this case, and
will immediately notify the Court in writing on learning of any such conflict.
Dated: February 10,2011".
54. On September 26,2012, Defendant Bank of America (BANA) filed this "Certificate
of Interested Persons and Corporate Disclosure Statement" [Doc. 14, Case No. 6:12-cv-01360-
JA-KRS] and stated the following:
"Defendants Bank of America, N.A. (BANA), BAC Home Loans Servicing, LP (BAC),
and MERSCORP, Inc. (MERS), pursuant to Rule 7.1 of the Federal Rules of CivilProcedure and
this Court's Interested Persons Order (Doc. 4) hereby provide their Certificate of Interested
Persons and Corporate Disclosure Statement:
1. The name of each person, attomey, association of persons, firm, law firm,
partnership, and corporation that has or may have an interest in the outcome of this
action - including subsidiaries, conglomerates, affiliates, parent corporations,
publicly-traded companies that own 10% or more of a party's stock, and all other
identifiable legal entities related to any party in the case:
a. BANA is 100% owned by BANA Holding Corporation. BANA Holding
Corporation is 100% owned by BAC North America Holding Company, which is intum
100% owned by NB Holdings Corporation. NB Holdings Corporation is 100% owned by
Bank of America Corporation, whose shares are publicly traded. Bank of America
Corporation does not have any parent corporations, and no publicly-held company has an
ownership interest of 10% or more in Bank of America Corporation. BAC Home Loans
Servicing, LP was merged into Bank of America, N.A. effective July 1, 2011, and no longer
exists. Effective February 27, 2012, MERSCORP, Inc. changed its name to "MERSCORP
Holdings, Inc." There is no publicly held corporation owning 10% or more of MERSCORP
Holdings, Inc.'s stock. The Federal Home Loan Mortgage Corporation and the Federal National
Mortgage Association each own 10% or more of MERSCORP Holdings, Inc' s stock.
MERSCORP Holdings, Inc. is the parent corporation of Mortgage Electronic Registration
Systems, Inc.
b. Counsel for BANA, BAC and MERS is:
Akerman Senterfitt
William P. Heller, Esq.
William P. Gray, Esq.
Paul W. Ettori, Esq.
c. Other parties that may have an interest in the outcome of this action are as
follows:
Abdiel Echeverria (Plaintiff)
Isabel Santamaria (Plaintiff)
2. The name of every other entity whose publicly-traded stock, equity, or debt may be
substantially affected by the outcome of the proceedings:
N/A
3. The name of every other entity which is likely to be an active participant in the
proceedings, including the debtor and members of the creditors' committee (or twenty
largest unsecured creditors) in bankruptcy cases:
N/A
4. The name of each victim (individual and corporate) of civil and criminal conduct
alleged to be wrongful, including every person who may be entitled to restitution:
N/A
5. I certify that I am unaware of any actual or potential conflict of interest involving the
District Judge and Magistrate Judge assigned to this case and will immediately notify
the Court in writing upon learning of any such conflict.
Dated: Orlando, Florida
September 26,2012"
55. These are legal documents filed in this court by Defendant BANA. These documents
are not to be considered lightly or less important, there is a reason they are required by the court.
It is to be noted that nowhere in these legal documents filed in this Court by BANA was it
disclosed that Urban or Carlisle were an interested party or in any way affiliated or interested in
the outcome of these cases nor did BANA amend their certificate to reflect in any way that they
would have an interest in the outcome of these cases. Their employees were specifically named
in the complaints and were disclosed as possible witnesses in the case by the Plaintiffs. Would
they have lied under oath that they were employed by Bank of America's Office of the
President? Would BANA have proceeded with the case to trial never disclosing these necessary
Defendants and other facts that were not discovered until recently? The Plaintiffs did not have a
full and fair opportunity to litigate their case due to the concealed defendants, facts and evidence.
Defendant BANA clearly committed extrinsic and intrinsic fraud against the Plaintiffs in prior
litigation.
56. The Plaintiffs have continued to file complaints with regulatory agencies such as the
OCC even though at this point the Plaintiffs have realized that the OCC does nothing to regulate
Defendant Bank of America's fraudulent behavior'^. The Plaintiffs have contacted the FBI^*'
regarding other fraud regarding Defendant BANA and other governmental resources but as can
be noted, BANA continues to escape liability and continues to evade investigations such as the
most recent one from the OCC in which the Plaintiffs notified the OCC of the Office of the
President scam. The results are quite disturbing and Bank of America continues to evade
investigation and continues to lie^'.
57. Defendants were under numerous legal obligations, including Defendant Bank of
America's obligations as a fiduciary^^, and had the responsibility for overseeing the purported
See Exhibits E, F & H filed with this Second Amended Complaint.
See Exhibit I filed with this Second Amended Complaint for Bank of America's response to governmental
"authorities" letter from Plaintiff.
^' See Exhibit F for full written interaction of the Plaintiffs with the OCC regarding the Defendants in 2014.
A fiduciary relationship may exist wherever one man trusts in and relies upon another. See Jacobs v.
Vaillancourt, 634 So.2d 667, 670 (Fla. 2d DCA 1994) ("The relations and duties involved need not be legal, but
may be moral, social, domestic, and merely personal"), Atlantic Nat'l Bank v. Vest, 480 So.2d 1328, 1332 (Fla. 2d
DCA 1985) ("The informal type of fiduciary relationship may exist under a variety of circumstances, and does exist
in cases where there has been a special confidence reposed in one, who in equity and good conscience, is bound to
act in good faith and with due regard to the interests of the one reposing the confidence.")..6/?ava/v. Treeco. Inc.,
2:09-CV-672-FTM-29. 2011 WL 250434 (M.D. Fla. 2011) ("The relations and duties involved need not be legal,
but may be moral, social, domestic, and merely personal."); Kaser v. Swann, 141 F.R.D. 337, 341
(M.D.Fla. 1991). Tardifv. People for the Ethical Treatment of Animals, 160 Lab.Cas. P 61065. (M.D. Fla. 2010)
(Case No. 2:09-cv-537-FtM-29SPC).
loan servicing to insure that the servicing was legal, proper and that the Plaintiffs received all
legally required disclosures regarding their mortgage.
58. To make matters worse. Bank of America also failed to properly train their employees
with basic information needed to underwrite HAMP applications or mortgage servicing. Bank of
America did not dedicate sufficient underwriters, staff or even the basic supplies like the printers
and hardware needed to keep up with the task of addressing or fixing mass complaints by
borrowers and regulators.
59. As set forth above. Defendant Bank of America (BANA) engaged in overt acts in
furtherance of the conspiracy and to set the conspiracy in motion, and Defendants Urban and
CGCG have engaged in acts in furtherance of the conspiracy to accomplish its ends which
actions have resulted in damages to the Plaintiffs including the institution of a foreclosure^*.
60. This was a conspiracy by said Defendants to construct a pre-manufactured theft of
property and fraud through the perpetration of a fraud upon the Plaintiffs which was known to
Defendants Bank of America, Urban Lending Solutions and Carlisle & Gallagher at the time to
be fraudulent and with an illegal and unlawful purpose. The Plaintiffs' loan is NOW in
foreclosure as per Bank of America's own communications since 2013.
Ex-Bank of America employee Steven Cupples has testified that Bank of America reported to the Treasury
Department and made public statements regarding the volume of loans it was successfully modifying and the effects
it was making to catch up with the volume. Bank of America would "double-count" loans that were in different
stages of the modification process. It also involved counting loans that were "entitled" to modifications as having
already been modified-only to foreclose on them a short time later. It was well known among Bank of America
employees that the numbers Bank of America was reporting to the government and to the public were simply not
true. Is it expected that this fraud is allowed to continue by this court?
61. Further, without limiting the damages as described elsewhere in this Complaint,
Plaintiffs damages arising from these actions also include intentional infliction of emotional
distress, pain and suffering, medical, psychological and psychiatric expenses, loss of wages, loss
of business opportunities, harassment, loss of equity in their home, increased debt, reduced credit
scores, unavailability of credit, inability of purchasing another home, funds lost on the down
payment of the home, loss of retirement funds, funds lost on improvements and repairs,
increased costs of credit, reduced availability of goods and services tied to credit ratings,
increased costs of those services, as well as fees and costs, including, without limitation,
attorneys' fees and costs.
62. As set forth throughout this complaint. Defendant Bank of America has clearly
violated its contractual obligations with the Plaintiffs, breached its fiduciary duty, concealed
material facts and defendants from the Plaintiffs at all times including during prior litigation.
BANK OF AMERICA'S "BOGUS" OFFICE OF THE PRESIDENT
63. After the Plaintiffs acquired an attomey and after the Plaintiffs submitted numerous
complaints to governmental authorities and regulatory agencies. Bank of America "appeared" to
take notice of the Plaintiffs severe discontent. Plaintiff Isabel Santamaria was advised on the
phone in June 2010 that their case was escalated to the "Office of the CEO and President" while
on a three-way telephone call with Bank of America and Sarah McCoy of the HOPE hotline in
June 2010. Mrs. Santamaria spoke to Ms. Smith in the Office of the President that day but it is
very likely that it may not have been Bank of America's Office of the President at all. However,
at that moment in June 2010, the Plaintiffs felt that their numerous problems with Bank of
America were on their way to resolution. In reliance, the Plaintiffs continued to pay their
"regular" mortgage payments as instructed and were still awaiting a HAMP modification not
knowing that they were being applied to foreclosure.
64. In numerous occasions, the Plaintiffs and their attorneys continued to communicate
with the Office of the President. The Plaintiffs even sent emails to Mr. Brian Moynihan on April
21, 2010 and July 20,2010 that were routed to other Bank of America "Office of the President"
personnel to be handled. The Plaintiffs' complaints to the Attomey General, Congressman Bill
Posey, The Office of the Comptroller of the Currency (OCC), Board of Govemors of the Federal
Reserve System^* (which complaint was forwarded again to the OCC) were all handled by Bank
of America's so-called "Office of the President" for which this particular deparhnent exists only
to place a "band-aid" on pesky homeowner complaints and to deter investigations from
governmental officials. This department, which is staffed mainly by Urban and Carlisle
employees, manipulates homeowner records, manipulate payment records, falsifies documents,
falsify and misleading investigations, causing the denials of loan modifications and thereby
causing the imminent foreclosures of homeowners by fraudulent manipulations mentioned
throughout this complaint. Not only did they deceive the Plaintiffs and all those involved but the
communications with Carlisle & Gallagher's Scott McDaniel, who misrepresented himself at the
direction of his employer Carli.sle & Gallagher and at the direction of Bank of America believed
to be "Customer Advocate of Bank of America's Office of the CEO and President", did a
horrible and inefficient job and consistently contradicted himself and the OCC did not even have
the common sense to pick up the grave discrepancies and errors of those false communications
regarding the Plaintiffs' complaints.
See Exhibit E filed with this Second Amended Verified Complaint.
65. Among the persons that handled the Plaintiffs' complaints from the so-called "Office
of the President" were the following:
1. Claudia DeLeon - April 2010 (see Judicial Notice, Doc. 55, BAC-000I14).
2. James Anderson - June 30, 2010 thru July 15, 2010 (see Judicial Notice, Doc. 55,
BA C-000116/BAC-OOOl 17).
3. Felicia Ford - July 20, 2010 thru July 22, 2010 (see Judicial Notice, Doc 55, BAC-
0001 J 8/BAC-000119).
4. Scott McDaniel - August 2,2010 thru November 2010 (see Judicial Notice, Doc 55,
BAC-000119; BAC-000125; BAC-000126; Plaintiffs' Verified Complaint, Doc. 2,
Exhibit B & C). Defendant Carlisle & Gallagher employee.
5. Gloria Perez - December thru January 2010 (see Judicial Notice, Doc. 55, BAC-
000127). Defendant Urban employee^*.
66. "It felt like a big deal, reaching the CEO's office". Plaintiff Isabel Santamaria told
the Bloomberg reporter in late 2013 during an interview when her case was escalated to what she
was "told" was Bank of America's top level. Soon she found out it was all a farce. Bank of
America, a criminal enterprise who is consistently paying its way out of criminal prosecutions
with settlements, has continuously mocked the Plaintiffs and escaped liability. This is truly the
last straw.
" The computer entries in the Plaintiffs possession do not go beyond March 2011. The Plaintiffs have submitted
numerous complaints after March 2011 but do not have computer entries for who handled those complaints.
ON-GOING FRAUD. DEBT COLLECTION
AND CREDIT REPORTING
67. Attempting to collect a debt; in numerous instances Bank of America's collectors
telephone individuals who are not the consumers who allegedly owe the debts that Bank of
America (BANA) is attempting to collect. The harassment and abuse that ensued was
unnecessary and on-going against the Plaintiffs. Many acts of harassment occurred and
commenced in 2010 and continued through prior litigation and beyond. Threats of collecting a
debt that was not owed and threats of foreclosure were consistent.
68. While there is no precise definition for specific "harassing conduct," there is a non-
exhaustive list of examples in both Florida and federal legislation governing debt harassment.
Common examples include numerous, daily phone calls to alleged debtors, their family, and
friends; calls on back-to-back days; repeated calls with no messages; hang-ups; using social
media networks; the use of robo-dialers; lies or misleading comments; speaking in a belittling
manner; and embarrassing, argumentative, and rude conduct.
69. No debt collector, including banks, mortgage companies, collection agencies, or other
financial institutions may attempt to collect more than is owed. This includes late fees when the
debtor has paid on time; penalties; higher interest rates; attomey costs; or any other
miscellaneous costs that are not part of the principal or interest of the debt such as the "vacancy
fees" that were maliciously assessed by Defendant Bank of America and "foreclosure fees" that
were applied instead of applying their regular payments.
70. Once a bill collector is notified that the debtor is represented by an attomey , all
communication with the debtor "must stop". Any communications about the debt are required to
be discussed with the debtor's attomey.
71. Defendant Bank of America and third parties that include Urban and CGCG,
repeatedly harassed, threatened and verbally abused the Plaintiffs via telephone as alleged in this
complaint while being represented by an attomey. The Defendants harassed the Plaintiffs during
litigation and continued to do so by contacting family members and ex-employers. These abusive
practices are illegal.
72. On or around September 23, 2013, the plaintiffs received a letter^^ from J.M.
Adjustment Services, LLC (JMA), a third party company working on behalf of Defendant
Bank of America to collect an alleged debt. The alleged debt stated on this notification continued
to be erroneous with inflated fees and costs even after the Plaintiffs consistently disputed the
amovmt allegedly owed during the course of approximately 3 years. Bank of America had stated
several times to the Plaintiffs, to their attomeys, to regulatory agencies and to other sources that
the amounts disputed were corrected but they continue to be incorrect to this very day.
73. JMA was also offering the plaintiffs, in a separate mailing, a "so-called" loan
modification on behalf of Defendant Bank of America with no guarantees of approval (See
Exhibit B). It was not a HAMP modification. The Plaintiffs were advised to send all loan
modification documents to JMA to determine if mortgage assistance was available. It was also
^As seen in Judicial Notice, Doc. 55, BAC-000113; BAC-000116; BAC-000138; BAC-000139; BAC-000153,
Defendant BAN A continued to repeatedly harass the Plaintiffs while they had legal representation or after they had
requested that they stop calling.
" See Exhibit C.
stated that a JMA representative would "meet" with the Plaintiffs to review their loan and
assistance options.
74. The Plaintiffs responded to JMA's communication with a letter dated October 15,
2013 (see attached Exhibit C). The Plaintiffs requested under the "Fair Debt Collection Practices
Act" that they provide an "accurate" amount of the debt. The plaintiffs also mentioned to JMA
that failing to report information correctly violates the "Fair Credit Reporting Act".
75. JMA answered this request with a brief letter dated October 31,2013 advising that
that the "creditor" is Bank of America and that all inquiries should be directed to Bank of
America. No other notifications or communications were ever received from third party JMA on
behalf of Defendant Bank of America. During this time, the Plaintiffs began receiving
communications from BANA informing them that their loan is NOW in foreclosure^^.
76. Bank of America consistently mailed the Plaintiffs statements with incorrect monies
owed, inflated costs and fees and they continue to do so to this very day. The Plaintiffs have
disputed this debt several times with Bank of America and have reported this inaccurate debt
with all credit reporting agencies. Bank of America has consistently lied by stating that the
payments were appropriately applied yet continued to show that no corrections were made. To
make matters worse. Bank of America applied payments as "foreclosure fees" further proving
that their intention was foreclosure all along*. Bank of America gave legal assignments, title
See Exhibit C along with envelope.
^' See Exhibit I filed with Plaintiff's Original Verified Complaint, Doc. 2.
Bank of America employee Simone Gordon testified that Bank of America Collectors and other employees who
did not meet their quotas by not placing sufficient accounts in FORECLOSURE each month were subject to
termination.
searches and appraisals to its own subsidiaries Recontrust or LandSafe and fraudulently charged
exeessive fees to homeowners.
77. Bank of America contracted SafeGuard Properties to constantly harass the Plaintiffs
with vacancy letters and inspections thereby assessing fees which include vacancy fees,
foreclosure fees and inspection fees. The Plaintiffs would receive these harassing vacancy
notices every two weeks from 2012 through 2014*'. Bank of America also continued to offer the
Plaintiffs a short-sale or deed-in-lieu of foreclosure from 2011 to 2013 in which they did not
have to do so in the first place if they would have complied with HAMP and would not have
medieally and emotionally injured Plaintifflsabel Santamaria. Nonetheless, Bank of America did
not want the Plaintiffs to retain the home due to the massive fraud that is involved throughout the
loan.
78. Defendant Bank of America continued to respond to "some" of the Plaintiffs'
qualified written requests (QWR) submitted by the Plaintiffs in 2013 and continued reporting
inaccurate information to the credit bureaus and continued to misapply Plaintiffs' payments as
seen in the payment history attached to their QWR responses.
79. The purpose of the "Fair Credit Reporting Act" (FCRA) is "to ensure fair and
accurate credit reporting, promote efficiency in the banking system, and protect consumer
privacy." Safeco Ins. Co. v. Burr, 551 U.S. 47, 52 (2007). "Accordingly, the FCRA places*^
distinct obligations on three types of entities: (1) consumer reporting agencies; (2) users of
consumer reports; and (3) furnishers of information to consumer reporting agencies."
See Exhibit G attached to this second amended verified complaint.
'Ms U.S.C. 1681(b).
DEFENDANTS' VIOLATION OF THE FDUTPA
80. FDUTPA provides that an aggrieved party may initiate a civil action against a party
who has engaged in "[u]nfair methods of competition, unconscionable acts or practices," and
"unfair or deceptive acts or practices in the conduct of any trade or commerce." 501.204(1), Fla.
Stat. (2003). A primary purpose of FDUTPA is "[t]o protect the consuming public and legitimate
business enterprises from those who engage in unfair methods of competition, or
unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce."
501.202(2), Fla. Stat. (2003); see Marshall v.W&L Enters. Corp., 360 So. 2d 1147, 1148
(Fla. 1st DCA 1978)(the statute's purpose is to "make consumers whole for losses caused by
fraudulent consumer practices"), rev'd on other groimds, Hubbel v. Aetna Cas. & Surety Co., 758
So. 2d 94(Fla. 2000). To give the statute life, the Legislature conferred the right to bring an
individual action on any "consumer who has suffered a loss as a result of a violation" of
FDUTPA to "recover actual damages, plus attorney's fees and court costs." 501.211(2), Fla.
Stat. (2003).
81. A lender/servicer such as Bank of America who charges excessive and/or
unreasonable amounts for unnecessary property inspections, vacancy fees when the property has
never been vacant and applying the plaintiffs regular payments as foreclosure fees in 2010 while
the Plaintiffs were paying their mortgage and for which Bank of America and its agent were paid
commissions or other remunerations, supports Plaintiffs claim under the "unfairness" prong of
the FDUTPA.
82. The Plaintiffs were "deceived" into contracts and unknown forbearances all while
submitting payments that were being applied to as "foreclosure fees**".
83. The reliance caused damages to the Plaintiffs by owing substantially more than what
was allegedly owed on the alleged mortgage than if these deceptive practices were not initiated
by the Defendant Bank of America and its agents.
IV. CAUSES OF ACTION
COUNTI
VIOLATIONS OF THE "FAIR DEBT COLLECTION PRACTICES ACT"**
Violations of Section 804
84. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
85. The Defendant BANA is a "debt collector" within the meaning of 15 U.S.C. 1601
et. seq., and in particular, 15 U.S.C. Section 1692a(6) and Fla. Stat. 559.55(6) and Fla. Stat.
559.551 (the Florida Consumer Collection Practices Act, or "FCCPA") in that it uses the mails
in a business the primary purpose of which is the collection if debts. Defendant Bank of America
collects an alleged debt for the "alleged" investor Ginnie Mae. Defendant Bank of America also
contract outside companies such as JMA and SafeGuard to collect on debts, harass and threaten
alleged debtors via telephone and U.S. mail.
86. Section 804 of the FDCPA, 15 U.S.C. 1692b, governs the manner in which debt
" See Exhibit B, BAC- 000118 and Exhibit F, page 3 attached to this amended complaint.
'" The Eleventh Circuit Court of Appeal has recently clarified that mortgage foreclosure can be debt collection under
the FDCPA in Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.2012) and Birster v. Am.
HomeMortg. Servicing, Inc., 2012 WL 2913786 (11th Cir. July 18, 2012). Plaintiffs loan is NOW in foreclosure
(Exhibit E).
collectors may communicate with any person other than the consumer for purposes of aequiring
location information about the consumer. Section 804(3) prohibits debt collectors from
communicating with any person about a consumer more than once unless requested by the
person or unless the debt collector reasonably believes that the earlier response of such person is
erroneous or incomplete and that such person now has correct or complete information.
87. In numerous instances, through the means described in paragraphs 67 - 79 and
throughout this complaint and as seen in the computer entries [Judicial Notice, Doc. 55], in
connection with the collection of debts, Bank of America, directly or indirectly, has
communicated more than once with persons other than the consumer for the purpose of obtaining
location information about the consumer without a reasonable belief that the earlier response of
the person was erroneous or incomplete and the person then had correct or complete location
information.
88. The acts and practices alleged in paragraphs 67 - 79 and throughout this complaint,
constitute violations of Section 804(3) of the FDCPA, 15 U.S.C. 1692b(3). Pursuant to Section
813(a) of the FDCPA, 15 U.S.C. 16921(a), the acts and practices alleged in Paragraphs 22,25,
36-48 also constitute unfair or deceptive acts or practices.
COUNT n
Violations of Section 805
89. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
90. Section 805 of the FDCPA, 15 U.S.C. 1692c, governs communications in
connection with debt collection generally. Section 805(b) specifically prohibits communications
about a debt with any person other than the consumer, a consumer reporting agency, the creditor,
or their attomeys except as allowed by Section 804 or with the permission of the consumer, or a
court of competent jurisdiction, or as reasonably necessary to effectuate post-judgment relief.
91. In numerous instances, through the means described in paragraphs 67 - 79 and
throughout this complaint, in connection with the collection of alleged debts. Bank of America,
directly or indirectly, has communicated about a debt with persons other than the consumer, a
consumer reporting agency, the creditor, or their attomeys without the permission of the
consumer, or as otherwise allowed by Section 804.
92. The acts and practices alleged in paragraphs 67 - 79 and throughout this complaint
constitute violations of Section 805(b) of the FDCPA, 15 U.S.C. 1692c(b). Pursuant to Section
813(a) of the FDCPA, 15 U.S.C. 16921(a), the acts and practices alleged in Paragraphs 67-79
also constitute unfair or deceptive acts or practices.
COUNT ni
violations of Section 807
93. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
94. Section 807 of the FDCPA, 15 U.S.C. 1692e, prohibits debt collectors from using
any false, deceptive, or misleading representation or means in connection with the collection of
any debt. Section 807(2)(A), 15 U.S.C. 1692e(2)(A), specifically prohibits the false
representation of the character, amount, or legal status of any debt, while Section 807(8),
15 U.S.C. 1692e(8), prohibits communicating or threatening to communicate to any person
credit information which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed, and Section 807(10), 16 U.S.C. 1692(e)(10),
prohibits using false representations or deceptive means to collect or attempt to collect any debt
or to obtain information concerning a consumer.
95. In numerous instances, through the means described in paragraphs 67 - 79 and
throughout this complaint, in connection with the collection of debts. Bank of America, directly
or indirectly, has used false, deceptive or misleading representations or means, in violation of
Section 807 of the FDCPA, 15 U.S.C. 1692e, including, but not limited to, the following:
a) . In numerous instances. Bank of America, directly or indirectly, has
used false representations conceming the character, amount, or legal
status of a debt, in violation of Section 807(2)(A) of the FDCPA,
15 U.S.C. 1692e(2)(A);
b) . In numerous instances. Bank of America, directly or indirectly, has
communicated credit information to consumer reporting agencies
that it knew, or should have known, to be false, in violation of
Section 807(8) of the FDCPA, 15 U.S.C. 1692e(8); and
c) . In numerous instances. Bank of America, directly or indirectly, has
used false representations or deceptive means to collect or attempt to
collect any debt or to obtain information conceming a consumer in
violation of Section 807(10) of the FDCPA, 15 U.S.C. 1692e(10).
96. The acts and practices alleged in paragraphs 67 - 79 and throughout this complaint.
constitute violations of Section 807 of the FDCPA, 15 U.S.C. 1692e. Pursuant to Section
813(a) of the FDCPA, 15 U.S.C. 16921(a), the acts and practices alleged in Paragraph 22, 25,
36-48 also constitute unfair or deceptive acts or practices.
COUNT IV
Violations of 15 U.S.C. 1692 g (b)
97. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
98. Section 809(b) of the FDCPA, 15 U.S.C. 1692g(b), provides, inter alia, that if a
consumer notifies a debt collector in writing, within thirty days of the consumer's receipt of the
initial communication from the debt collector, that the debt is disputed, the debt collector shall
cease collection of the debt until the debt coUeetor obtains and provides verifieation of the debt
to the consumer.
99. In numerous instances, through the means described in paragraphs 67 - 79 and
throughout this complaint, in connection with the collection of debts, when a consumer has
notified Bank of America, in writing within the thirty-day period described in Section 809(a) of
the FDCPA, 15 U.S.C. 1692g(a), that the debt, or a portion thereof, is disputed, BANA has
failed to obtain and provide verification of the debt to the consumer and has continued to attempt
to collect the debt.
100. The acts and practices alleged in paragraphs 67 - 79 and throughout this complaint
constitute violations of Section 809(b) of the FDCPA, 15 U.S.C. 1692g(b). Pursuant to Section
813(a) of the FDCPA, 15 U.S.C. 16921(a), the acts and practices alleged in paragraphs 67 - 79
and throughout this complaint also constitute unfair or deceptive acts or practices.
101. Plaintiffs are hereby entitled to actual and statutory damages of $1,000.00 for each
violation via telephone, mail or wire of the alleged debt.
COUNTY
VIOLATIONS OF THE "FAIR CREDIT REPORTING ACT"
Violations of Section 623(aKl)(A)
102. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
103. At all times material. Defendant Bank of America, N.A. ("BANA"), qualified as a
provider of information to the Credit Reporting Agencies, including but not limited to Experian,
Equifax, and TransUnion under the Federal Fair Credit Reporting Aet.
104. Defendant BANA, through and with its agents and successors or assigns,
wrongfully, improperly, and illegally, pursuant to its predetermined scheme to defraud set forth
above, reported negative information as to the Plaintiffs to one or more Credit Reporting
Agencies, resulting in Plaintiffs having negative information on their credit reports and the
lowering of their FICO scores.
105. Pursuant to 15 (JSC sec. 1681(s)(2)(b), Plaintiffs are entitled to maintain a private
cause of action against said Defendant for an award of damages in an amount to be proven at
the time of trial for all violations of the "Fair Credit Reporting Act" which caused actual
damages to Plaintiffs, including emotional distress and humiliation.
106. Plaintiffs are also entitled to recover damages from said Defendant for negligent
non-compliance with the Fair Credit Reporting Act pursuant to 15 USC sec. 1681(o).
107. Plaintiffs are further entitled to an award of punitive damages against
Defendant Bank of America (BANA) and its agents, for their willful noncompliance with the
Fair Credit Reporting Act pursuant to 15 USC sec. 1681 (n)(a)(2) in an amount to be proven at
time of trial.
108. Section 623(a)(1)(A) of the FCRA prohibits furnishers of information to consumer
reporting agencies from famishing any information relating to a consumer to any consumer
reporting agency if the fumisher knows or has reasonable cause to believe that the information is
inaccurate. 15 U.S.C. 1681s-2(a)(l)(A).
109. In numerous instances, through the means described in Paragraphs 10-83, in
connection with famishing information relating to a consumer to a consumer reporting agency.
Bank of America has fumished such information while knowing or having reasonable cause to
believe that the information was inaccurate.
110. The acts and practices alleged in Paragraphs 10-83 constitute violations of Section
623(a)(1)(A) of the FCRA, 15 U.S.C. 1681s-2(a)(l)(A). Pursuant to Section 621(a)(1)
of the FCRA, 15 U.S.C. 1681s(a)(l), the acts and practices alleged in Paragraphs 10-83 also
constitute unfair or deceptive acts or practices in violation of Section 5(a) of the FTC Act,
15 U.S.C. 45(a).
COUNT VI
Violations of Section 623(b)m
111. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
112. Section 623(b) of the FCRA requires fumishers of information to consumer
reporting agencies to conduct a reasonable investigation when the fumisher receives a notice of
dispute regarding the completeness or accuracy of the reported information from a consumer
reporting agency in accordance with the provisions of Section 611(a)(2) of the FCRA, 15 U.S.C.
1681i, and to report the results of the investigation to the consumer reporting agency. 15
U.S.C. 1681s-2(b).
113. In numerous instances, through the means described in Paragraphs 10-83, Bank of
America (BANA) does not conduct a reasonable investigation, or any investigation, when it
receives a notice of dispute from a consumer reporting agency.
114. The acts and practices alleged in Paragraphs 10-83 constitute violations of
Section 623(b) of the FCRA, 16 U.S.C. 1681s-2(b). Pursuant to Section 621(a)(1) of the
FCRA, 15 U.S.C. 1681s(a)(l), the acts and practices alleged in Paragraphs 8-64 also constitute
unfair acts or practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. 45(a).
COUNT VII
"VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE PRACTICES*^"
Fla. Sta. Sections 501.201. et seq.
115. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to all Defendants.
116. This is a claim for violation of "Florida's Deceptive and Unfair Trade Practices Act"
(hereinafter "FDUTPA"), Fla. Stat. 501.201, et. seq.
' ' "While 'deception' and 'unfair practice' are not defined under FDUTPA the Eleventh Circuit and the Florida
Supreme Court have noted 'deception occurs if there is a representation, omission, or practice that is likely to
mislead the consumer acting reasonably in the circumstances, to the consumer's detriment."'Magw/re v. S.
Homes of Palm Beach, 2008 WL2474657 at *6 (S.D. Fla. June 17, 2008) (quoting Scott v. Capital One Bank, 2008
WL 2157037at *2 (M.D. Fla. May 20, 2008)).
117. FDUTPA provides that unfair methods of competition, unconscionable acts and
practices, and unfair or deceptive acts or practices in the conduct "of any trade or commerce" are
unlawful (Fla. Stat. 501.204). Under FDUTPA*'', "trade or commerce" is defined to include any
advertisement or solicitation relating to any "thing of value" Fla. Stat. 501.203(8).
118. Plaintiffs are consumers as defined and construed under the FDUTPA, Fla. Stat.
501.201-501.213.
119. All Defendants' conduct as alleged herein occurred in the course of trade or
commerce.
120. All Defendants marketing of false HAMP modifications, knowing that the Plaintiffs
and other homeowners would be denied regardless of Plaintiffs' compliance to the terms of the
contract constitutes an unfair and/or deceptive trade practice.
121. All Defendants knew or should have known of the scheme at all material times, but
did not disclose the truth to the Plaintiffs, consumers.
122. Even though all Defendants knew or should have known of the defective nature of
the HAMP modification and of the faulty programs they were utilizing, it continued to promote
this product to consumers without properly disclosing or correcting the defect.
123. All Defendants' practices were deceptive, misleading, and intended to increase its
own profits to the detriment of consumers. All named Defendants have profited from the uniform
deceptive practices and marketing campaigns.
124. All named Defendants knew that its decision to conceal the fact that there were third
parties investigating plaintiffs' complaints, mishandling Plaintiffs' account, utilizing numerous
Under FDUPTA a deceptive act is an act that is likely to mislead consumers. Da\>is v. Powertel, Inc., 116 So.2d
971, 974 (Fla. 1st DCA 2000). This "likely to mislead" standard does not require reliance on the part of the
consumer. An unfair practice is "one that 'offends established public policy' and one that is 'immoral, unethical,
oppressive, unscrupulous or substantially injurious to consumers." Grillasca, 2006 U.S. Dist. LEXIS 82814, 10
(M.D. Fla. 2006).
programs that were in conflict with each other and conducting inaccurate investigations was
likely to mislead Plaintiffs and all consumers acting reasonably under the circumstances to the
consumer's detriment.
125. Plaintiff suffered actual damages as a result of all named Defendants' deceptive and
unfair trade practices. Specifically, as a result of Bank of America and its co-conspirators'
deceptive and unfair trade practices. Plaintiffs have suffered monetary losses, loss of credit, loss
of salary and the imminent loss of their property which is now in foreclosure.
126. A claim for damages under FDUTPA has three elements: (1) a deceptive act or
unfair practice; (2) causation; and (3) actual damages. Virgilio v. Ryland Group, Inc., 680 F.3d
1329,1338 n.25 (11th Cir. 2012) (quoting Ro/Z/ra, Inc. v. Rutland, 951 So. 2d 860, 869 (Fla.
Dist. Ct. App. 2006)). Here, Plaintiff alleges that Defendants also violated FDUTPA by using
fake identities and manufactured documents to deprive them of their homestead with the purpose
of inducing a foreclosure of a debt that was not in default at the time this scheme was
perpetrated. The Defendant Bank of America charged excessive and/or unreasonable amoimts for
unnecessary property inspections, vacancy fees when the property is not vacant and foreclosure
fees. The Defendants unanimously conspired against the Plaintiffs for this purpose.
COUNT vin
CIVIL CONSPIRACY TO DEFRAUD
127. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to all Defendants.
128. As a direct and proximate result of the actions and a course of conduct of all
Defendants which were planned, designed, and orchestrated to further several illegal acts and to
accomplish a legal act by unlawful means through the commission of several overt acts in
furtherance of the conspiracy to defraud the Plaintiffs, Plaintiffs have suffered damages and
have thus satisfied the requirements for pleading a cause of action for civil conspiracy under
applicable Florida decisional law.
129. Defendants Bank of America, Urban and Carlisle & Gallagher, through and with
their agents and successors, agreed between and among themselves to engage in the conspiracy
to defraud for the common purpose of accruing economic gains for themselves at the expense of
and detriment to the Plaintiffs.
130. The actions of all Defendants were committed intentionally, willfully, wantonly, and
with reckless disregard for the rights of the Plaintiffs.
131. As a direct and proximate result of the actions of the Defendants in combination
resulting in fraud and breaches of fiduciary duties. Plaintiffs have suffered damages.
132. Plaintiffs thus demand an award of actual, compensatory, and punitive damages.
COUNT IX
FRAUDULENT MISREPRESENTATION
133. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to all Defendants.
134. Defendants BANA, Urban, and Carlisle knowingly, intentionally, and fraudulently
concealed material information from Plaintiffs.
135. Said Defendants also materially misrepresented material information to the Plaintiffs
with full knowledge by said Defendants that their affirmative representations were false,
fraudulent, and misrepresented the truth at the time said representations were made.
136. Under the circumstances, the material omissions and material misrepresentations of
said Defendants were malicious.
137. Plaintiffs, not being mortgage lenders, mortgage brokers, or mortgage lenders,
reasonably relied upon the representations of said Defendants (or the lack of disclosures by said
Defendants) in agreeing to execute a loan modification contract and to default on their loan in
order to qualify to prove hardship. Plaintiffs relied on these representations to their detriment.
138. Plaintiffs relied on all representations of all defendants to their detriment. Plaintiffs
were lead to believe that they were in contact with Bank of America's "Office of the President"
when in reality they were just being played like a fiddle and discarded. Plaintiffs believed these
misrepresentations until December 2013.
139. Plaintiffs were being lead to believe that Bank of America's Office of the President
was handling their complaints and investigating their account. The Plaintiffs relied on these
misrepresentations to their detriment.
140. All investigators were told that Bank of America's Office of the President was
handling the Plaintiffs complaints and directly communicating with them. These statements
were false and misleading and known to be false when they were told. The Plaintiffs relied on
these misrepresentations to their detriment.
141. Plaintiff alleges that Defendants made these misrepresentations to deprive them of
their homestead with the purpose of inducing a foreclosure of a debt that was not in default at the
time this scheme was perpetrated.
142. Had Plaintiffs known of the falsity of said Defendants' representations. Plaintiffs
would not have entered into the transactions with the Defendants.
143. Plaintiffs thus demand an award of actual, compensatory, and punitive damages.
COUNT X
BREACH OF CONTRACT
144. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to Defendant BANA.
145. The following breach of contract claim is pertaining to Defendant Bank of America.
146. The Plaintiffs would like to reiterate that this claim is for "new facts" that have
arisen. In January 2010, the Plaintiffs and Defendant Bank of America officially entered into a
legally enforceable HAMP modification contract in which the Plaintiffs submitted and signed all
required documents and were received by BANA on February 5, 2010. The Plaintiffs complied
with all requirements of said contract. However, Defendant Bank of America had other plans.
Bank of America, in violation of the contract, utilized outside sources to fulfill such obligations
without the knowledge of the Plaintiffs.
147. It was always the Plaintiffs understanding, until recently, that the contractual
obligations would be handled by Bank of America's subsidiary BAC Home Loans Servicing, LP
and only Bank of America or their subsidiary BAC as the alleged servicer of the loan. Nowhere
in this written loan modification agreement documents or verbally was it ever disclosed to the
Plaintiffs that their loan modification or their documents would be handled by any third parties.
This agreement clearly states that all documentation is to be returned to BAC Home Loan
Servicing, LP ("Bank of America"). Nowhere on any of these documents does it stipulate or
advise the Plaintiffs that they would be dealing with any "third parties" in regards to this HAMP
modification or that these third parties would impersonate Defendant BANA. The Plaintiffs
herein had no prior knowledge of this breach.
148. In breach of this contract, Defendant Bank of America instructed the Plaintiffs to
submit signed applications and their personal and financial documents to Urban Lending
Solutions and Carlisle & Gallagher without their knowledge or consent. If Plaintiffs would have
been aware of this fraudulent breach of contract and trust. Plaintiffs would have clearly taken an
alternate route or demanded that the Defendant Bank of America specifically fulfill their
contractual obligations with the Plaintiffs herein.
149. In breach of this contract, the Plaintiffs named herein were placed instead in a
"special forbearance" agreement without their knowledge or consent or without the knowledge
that it would be to their detriment and would lead to foreclosure.
150. In breach of this contract, the Plaintiffs payments were instead applied to foreclosure
without their knowledge or consent.
151. The Plaintiffs' attomey was never advised that the Plaintiffs were submitting
sensitive personal information to third parties who were hired to intentionally lose the Plaintiffs'
valuable documents and deny or destroy all contractual obligations with the Plaintiffs. As far as
the Plaintiffs and their counsel were concemed, the Plaintiffs were submitting documentation
and communicating only with Defendant Bank of America which was not the case.
submissions for approval, or to provide effective assistance, and other services sought by the
plaintiffs, so that the Plaintiffs would ultimately enjoy the benefits of the long awaited
agreement.
164. As a proximate result of the misrepresentations, concealment, suppressions of facts,
and nondisclosures, the Defendants caused the Plaintiffs to enter into the agreement, and, after
the agreement was entered, plaintiffs suffered damage in an amount to be proved at trial.
165. Defendant Bank of America, Urban, and Carlisle's acts were willful, intentional,
wanton, malicious, and without justification, and plaintiffs are entitled to punitive damages
according to proof. Plaintiffs' reliance was to their detriment. Such detriment includes longer
loan payoff times, higher principal balances, improper negative reporting to credit bureaus,
inappropriate fees and charges assessed to them, inspection fees, attorney's fees, late fees and
other charges associated with delinquency and default, and increased accrued interest.
COUNT xin
EXTRINSIC FRAUD
166. Plaintiffs reaffirm and reallege paragraphs 1 through 83 hereinabove as if
set forth more fully hereinbelow as to all Defendants.
167. Extrinsic fraud involves conduct which is collateral to the issues tried in a case. The
definition of extrinsic fraud was specifically articulated in United States v. Throckmorton. 98
U.S. 61, 65-66, 25 L.Ed. 93 (1878), in which the United States Supreme Court said:
"Where the unsuccessful party has been prevented from exhibiting fully his case, by
fraud or deception practiced on him by his opponent, and similar cases which show
that there has never been a real contest in the trial or hearing of the case, are reasons for
which a new suit may be sustained to set aside and annul the former judgment or decree,
and open the case for a new and a fair hearing".
168. Rule 1.540(b) of the Florida Rules of Civil Procedure reads, in pertinent part, as
follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud,
etc. On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, decree, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been diseovered in time to move for
a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduet of an adverse party; (4) the
judgment or decree is void; (5) the judgment or decree has been satisfied, released or
discharged or a prior judgment or decree upon which it is based has been reversed or
otherwise vacated or it is no longer equitable that the judgment or decree should have
prospective application. The motion shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one year after the judgment, decree, order or
proceeding was entered or taken. A motion under this subdivision does not affect the
finality of a judgment or decree or suspend its operation. This rule does not limit the
power of a court to entertain an independent aetion to relieve a party from a
judgment, decree, order or proceeding or to set aside a judgment or decree for
fraud upon the court.
169. No Time Limitation under Rule 1.540(b) or Independent Action:
1) Where the judgment is void.
2) Where it can be established that the judgment has been satisfied, released, or
discharged.
3) Where the judgment has prospective application and equity should now require
relief from its present enforcement.
4) Extrinsic fraud which prevents a party from having an opportunity to present
his case in court.
170. As stated throughout this complaint. Defendant BANA has clearly concealed
material facts, necessary defendants, and other pertinent matters that could have greatly changed
the outcome of the Echeverria I or even the Echeverria II case with these new facts.
171. Therefore, no prior final judgment issued by this court should be irreversible for
obvious reasons. This court has the power and jurisdiction to reverse a prior final judgment
obtained by fraud in which new facts and defendants that were concealed have emerged.
172. WHEREFORE, Plaintiffs respectfully requests that all prior judgments that the
Defendants have obtained in this court by means of fraud be not taken into account or be vacated
in its entirety and that this current action appropriately proceed to trial with all factual evidence
and all defendants.
RESERVATION TO SEEK PUNITIVE DAMAGES
173. Plaintiffs re-allege and incorporate paragraphs 1-172 above.
174. Plaintiffs reserve the right to seek punitive damages against all named Defendants
upon a showing of evidence pursuant to Florida Statute 786.72.
JURY TRIAL DEMANDED
Plaintiffs demand trial by jury on all issues so triable as per Rule 38(b), Fed.R.Civ.P.
V. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request the following relief:
A. Enter a judgment declaring the acts and practices of BANA, Urban and Carlisle &
Gallagher complained of herein to constitute fraud and conspiracy, together with
an award of monetary damages and other available relief on those claims;
B. Grant a permanent or final injunction enjoining BANA's agents and employees,
affiliates and subsidiaries, from continuing to harm the Plaintiffs;
C. Award Plaintiff monetary civil penalties for each violation of the FCRA as to
Defendant Bank of America as alleged in this Complaint;
D. Award Plaintiff monetary civil penalties for each violation of the FDUTP as
to all named Defendants as alleged in this Complaint;
E. Actual damages as to Defendant Bank of America for Breach of Contract.
F. Actual, compensatory, and punitive damages as to all named Defendants Civil
Conspiracy to Defraud and Fraudulent Misrepresentation.
G. Compensatory and Punitive damages as to Defendant Bank of America's Breach
of Fiduciary Duty.
H. Find all Defendants liable of extrinsic fraud for withholding
evidence, necessary defendants and for lying to this court in prior litigation;
I. Actual and Statutory damages as per the Fair Debt Collection Practices Act as to
Defendant BANA; and
J. Award Plaintiffs the costs of this action, including the fees and costs of experts,
along with reasonable attorneys' fees if applicable;
K. Grant Plaintiffs such other and further relief as this Court finds necessary and
proper.
I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND
CORRECT TO THE BEST OF MY KNOWLEDGE.
Dated this 21st day of August, 2014.
Respectfully submitted.
Abdiel Echeverpd'-ipiaintiff (pro se)
L
Isabel Santamaria - Plaintiff (pro se)
499 Cellini Ave NE
Palm Bay, Florida 32907
(321)676-4198
(321)750-6697
Email: andvecorso@vahoo.com
CERTIFICATE OF SERVICE
I do hereby CERTIFY that a true and correct copy of the foregoing has been fumished to
Marc T. Parrino. Esq.: Kevin W. Cox, Esq.; Gary Soles; Kim Y. Nguyen; Richard L. Farley: and
David B. Morgen by ( ) mail ( ) fax ( ) mail and fax
()C) email on this ^ ) day of_^Ua]jJz , 20 .
Abdiel Echeverria -irtaintiff (pro se)
abel Santamaria - Plaintiff (pro se)