VERIFIED COMPLAINT FOR WRONGFUL FORECLOSURE
AND JURY DEMAND
Introduction: This complaint alleges inter alia that Nationstar Mortgage wrongfully foreclosed on real property commonly known as 81 Greystone Trial, Black Hawk, Colorado, 80422. Specifically, Nationstar repeatedly and falsely told Plaintiff that his loan modification was either in-process or had been approved, failed to inform plaintiff that his loan-modification application had been denied, and that this failure prevents plaintiff from exercising legal rights, including but not limited to, Chapter 13 bankruptcy, that would have allowed him to retain title to his home, which he largely built with his own hands.
Plaintiff, Keith Cabaniss, pro se, for his complaint against Nationstar Mortgage, swears and affirms that:
1. Defendant, Nationstar Mortgage, is a national mortgage lender that has transacted business in the state of Colorado.
2. Plaintiff, Keith Cabaniss, is an individual who resides in, and previously owned and occupied real property located in Gilpin County, Colorado.
3. The real property that Cabaniss previously owned has a common street address of 81 Greystone Trail, Black Hawk, Colorado, 80422 (the “Home”).
4. The Home is known as parcel no. 1711-031-01-213, in the public records of Gilpin County, Colorado.
5. The legal description of the Home is:
S: 3 T: 2S R: 72W Subd: LA CHULA VISTA RANCH Block: 002 Lot: 013A & IMPS A TRACT OF LAND CREATED BY BLE 04-09 RECPT #122305 & CORRECTED BY BLE 04-09A RECPT #124137 FORMERLY KNOWN AS BLK 2 LOT 13 & EAST 1/2 OF LOT 18.
6. Cabaniss was the first owner of the Home.
7. The Home is located in the mountains of Gilpin County, Colorado.
8. The Home has a unique and spectacular view of the Continental Divide and Longs Peak.
9. Cabaniss designed the Home, and largely built and finished it with his own hands.
10. Cabaniss purchased the land on which the Home resides in November, 2003; built the home from July 2004 through January 2007; and completed its interior and first occupied the Home in January 2007.
11. On May 25, 2007, Cabainss signed a promissory note to Nationstar for the amount of $230,431.01 (the “Note”).
12. The Note was secured by a Deed of Trust on the Home.
13. Nationstar filed an action on January 17, 2008, to recover title to the Home by having the Gilpin County Public Trustee conduct a public sale of the Home (the “Foreclosure”).
14. On information and belief, Nationstar did not own the Note or hold the corresponding Deed of Trust when it filed the Foreclosure.
15. On information and belief, Nationstar sold the Note and had previously assigned the Note and/or the corresponding Deed of Trust at the time when it filed the Foreclosure and thereafter.
16. On information and belief, Nationstar acted only as the servicer of the Note, i.e. Nationstar did not own the Note, but contracted with the Note’s owner to administer the Note, including to collect payments made on the Note.
17. From January 2008, when Nationstar filed the Foreclosure, through mid-February 2010, Nationstar consistently and repeatedly postponed the sale date in the Foreclosure action.
18. Cabaniss entered the Streamlined Modification Program Loan Workout Plan (“SMP”) February 19, 2009.
19. Nationstar’s agent, Vessia, told Cabaniss on February 27, 2009, that his SMP modification had been approved.
20. Cabaniss made one payment under the SMP.
21. Thereafter, Nationstar called Cabaniss and informed him that SMP had been cancelled, and Cabaniss would instead enter a Trial Period Plan under the Home Affordable Modification Program (“HAMP”).
22. Cabaniss entered HAMP in August 2009.
23. HAMP requires that applicants complete a three month trial period by making the payments that would be required under a proposed modified loan terms. If a HAMP participant makes these required trial-period payments, the participant’s loan may be modified to reflect the trial-period’s payment terms.
24. Cabaniss timely made his August and September payments under HAMP.
25. Cabaniss pre-paid his October HAMP payment with his September payment.
26. In September of 2009, Cabaniss called Nationstar to ensure that it had received his August, September, and October HAMP payments.
27. By timely making his August, September, and October payments to Nationstar, Cabaniss successfully completed the HAMP trial period.
28. Assuming that Cabaniss met other HAMP program requirements, Cabaniss’ successful completion of the HAMP trial period entitled him to have his loan modified in accordance with the trial-period payment terms.
29. Nationstar confirmed to Cabainss that (a) it had received his August, September, and October HAMP payments; and (b) it was sending his plan to another Nationstar department to draft new loan documents for Cabaniss’ new and modified HAMP loan.
30. Cabaniss’ HAMP loan-modification application was denied on or about Septmber 28, 2009.
31. On or shortly after Cabaniss’ HAMP application was denied, Nationstar knew that Cabaniss’ HAMP application had been denied.
32. Nationstar did not notify Cabaniss that his HAMP application had been denied.
33. Nationstar was required to notify Cabaniss that his Hamp application had been denied.
34. Cabaniss did not receive new HAMP loan documents from Nationstar.
35. Cabaniss did not make further payments to Nationstar while he was waiting to receive his new HAMP loan documents.
36. Nationstar consistently told Cabaniss that his new, modified, HAMP loan documents were in progress. The communications between Cabaniss and Nationstar, include, but are not limited to the following communications:
a. Cabaniss called Nationstar on December 10, 2009, and informed it that he had not yet received any new, modified, HAMP loan documents. Nationstar informed Cabaniss that it was "still working to prepare new loan documents, could take another month."
b. Cabaniss called Nationstar again on January 26, 2010. He informed Nationstar that he still had not received the new, new, modified HAMP loan documents. Nationstar told Cabaniss that “everything is ok.”
c. At the time Nationstar made the statements in the immediately preceding paragraphs (a) and (b) to Cabaniss, Nationstar knew that these statements were false.
37. On or about four days after the January, 26, 2010, telephone conversation in which Nationstar told Cabaniss that “everything is OK,” Nationstar set a sale date for the Foreclosure.
38. The Gilpin County Public Trustee held a Public Trustee’s sale of the Home on February 25, 2010 (the “Foreclosure Sale”).
39. February 26, 2010, was the last date on which Nationstar could schedule the Foreclose Sale without having to file a new action to request a Public Trustee Sale of the Home.
40. At the time of the Foreclosure Sale, Cabaniss had no notice that Nationstar intended to continue with the Foreclosure.
41. Prior to the Foreclosure Sale, Nationstar provided no notice to Cabaniss that Nationstar had set the Foreclosure Sale, or that Nationstar otherwise intended to proceed with the Foreclosure.
42. Cabaniss learned of the Foreclosure Sale on March 3, 2010, when he discovered a notice that Phil Heter, a Denver-based repossession/eviction processor and REO broker, that Fannie Mae now owned the Home.
43. If Cabaniss had had notice of the Foreclosure Sale, he would have been able to exercise legal rights, filing a chapter 13 bankruptcy petition, which would have allowed Cabaniss to prevent the Foreclosure Sale and keep the Home by restructuring his debts and becoming current on the restructured Note over time.
44. After Cabaniss learned of the Foreclosure sale, he again called Nationstar. On March 9, 2010, Cabaniss spoke with Thomas Brown of Nationstar. Cabaniss asked Mr. Brown to have Nationstar rescind the Foreclosure Sale because Nationstar had (a) failed to provide Cabaniss with any notice that it was proceeding with the Foreclosure Sale and (b) had made multiple misrepresentations to Cabaniss regarding the status of his HAMP modification and of his Note to Nationstar.
45. Brown and Cabaniss went through Nationstar’s records of the communications between Cabaniss and Nationstar.
46. Brown stated that Nationstar’s records of its communications with Cabaniss comported with Cabaniss’ own records of these communications, which are reflected in the preceding paragraphs of this Complaint. Brown also confirmed that Nationstar had not notified Cabaniss of the Foreclosure Sale or of that Cabaniss’ HAMP application had been denied.
47. Despite his concurrence with the facts as Cabaniss presented them, Brown and Nationstar refused to rescind the Foreclosure Sale. More specifically:
a. Cabaniss asked Brown, “What Happened?”
b. Brown responded, "Something transpired."
c. In response to further questions from Cabaniss, Brown would not reveal what transpired, refused to rescind the Foreclosure Sale, stated that he was going to terminate the telephone call, and then hung up.
48. On May 17th, Cabaniss held a conference call with Geraldo Hernandez of Nationstar and Jeff Plaine of Money Management (a HUD-certified loan counselor).
49. During this May 17th conference call, Hernandez again affirmed that:
a. Nationstar’s records of its communications comported with Cabaniss’ own records of these communications, which are reflected in the preceding paragraphs of this Complaint;
b. Nationstar did not notify Cabaniss that his HAMP loan-modification application had been denied.
c. Nationstar did not notify Cabaniss of the Foreclosure Sale date or that Nationstar was proceeding with the Foreclosure Sale.
50. On May 20, 2010, Cabaniss spoke via telephone with Chelsea Giles of Nationstar Mortgage’s legal compliance department in Dallas, TX. He asked why Nationstar proceeded with the Foreclosure Sale despite having informed Cabaniss that “everything is OK.”
a. Chelsea Giles responded that there had been a "miscommunication between [Nationstar’s] Loss Mitigation and HAMP department[s]."
b. Thereafter, Cabaniss asked Chelsea "Why am I being held accountable for miscommunication within Nationstar?"
c. Chelsea Giles responded, “There is no explanation."
First Claim for Relief
51. Cabaniss repeats and realleges all preceding paragraphs.
52. Nationstar’s Foreclosure Sale was wrongful.
53. Cabaniss has been damaged by the wrongful Foreclosure Sale.
54. As a result of the wrongful nature of the Foreclosure Sale, the Foreclosure sale should be rescinded.
Second Claim for Relief
Breach of Contract (covenant of good faith and fair dealing)
55. Cabaniss repeats and realleges all preceding paragraphs.
56. As part of the Note, Nationstar had an obligation to deal fairly and in good faith with Cabaniss in its efforts to enforce the Note.
57. Nationstar did not deal fairly and in good faith with Cabaniss in its efforts to enforce the Note.
58. Cabaniss has been damaged by Nationstar’s lack of fairness and good faith in an amount to be determined at trial.
Third Claim for Relief
59. Cabaniss repeats and realleges all preceding paragraphs.
60. Nationstar represented to Cabaniss that (a) his HAMP loan application was in process; (b) he would receive new loan documents from Nationstar that complied with the term of the HAMP trial period that Cabaniss had successfully completed; and (c) Cabaniss’ loan from Nationstar and the processing of his HAMP application was “OK.”
61. Nationstar’s misrepresentations detailed in paragraph 60 above are false.
62. At the time that Nationstar made the representations details in paragraph 60 above, Nationstar knew or should have known that these representations were false.
63. Nationstar made the representations detailed in paragraph 60 above with intent that Cabaniss rely on these representations.
64. Cabaniss relied on Nationstar’s misrepresentations to his detriment.
65. Cabaniss has been damaged by Nationstar’s misrepresentations and his detrimental reliance on these misrepresentations in an amount to be determined at trial.
Fourth Claim for Relief
66. Cabaniss repeats and realleges all preceding paragraphs.
67. Nationstar had a duty to disclose to Cabaniss all material facts that were relevant to the Foreclosure Sale before the Foreclosure Sale proceeded, including, but not limited to, the fact that the Foreclosure Sale was proceeding and that Cabaniss’ HAMP loan-modification application had been denied.
68. Nationstar failed to disclose the material facts detailed in paragraph 67 above to Cabaniss.
69. Nationstar’s failure to disclose the material facts detailed in paragraph 67 above to Cabaniss was willful and intentional.
70. Cabaniss has been damaged by Nationstar’s willful and intention non-disclosures in an amount to be determined at trial.
Cabaniss demands a trial by jury.
FOR THESE REASONS, the Court should vacate the Foreclosure Sale, restore title to the Home to Cabaniss as title existed prior to the Foreclosure Sale, award Cabaniss economic and punitive damages, award Cabaniss all costs and attorney fees incurred in this action, and award Cabaniss all such further relief that the Court deems as is just, proper or appropriate.
Product or Service Mentioned: Nationstar Mortgage Loan.
Reason of review: Fortress Investment Group shorts the very mortgages that its subsidiary Nationstar mortgage services.
Monetary Loss: $240000.
Preferred solution: Let the company propose a solution.
Nationstar Mortgage Cons: Being lied to for 7 months, Nationstar refuse to work with customer, No follow through, Cant talk to a supervisor, Customer service.