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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OFFLORIDA 

FORT LAUDERDALE DIVISION

CASE NO: 20-60633-CIV-SMITH

VINCENT J. MORRIS, STEVEN 

SIMMONS, YOLANDA UPTON, and 

MICHAEL LUZZI, on behalf of themselves

and all others similarly situated,

Plaintiffs,

v. CLASS ACTION COMPLAINT

JURY DEMAND

PHH MORTGAGE CORPORATION d/b/a 

PHH MORTGAGE SERVICES, on its own 

behalf and as successor by merger to OCWEN 

LOAN SERVICING, LLC, a New Jersey 

Corporation, and OCWEN LOAN SERVICING, 

LLC, a Florida Limited Liability 

Company,

Defendants.

/

AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiffs Vincent J. Morris, Steven Simmons, Yolanda Upton, and Michael Luzzi

(collectively “Plaintiffs”) bring this action, on behalf of themselves and all others similarly 

situated, against Defendant PHH Mortgage Corporation d/b/a PHH Mortgage Services, on its own 

behalf and as successor by merger to Ocwen Loan Servicing, LLC (“PHH”), and Defendant Ocwen 

Loan Servicing, LLC (“Ocwen”) (collectively “Defendants”) and state:

NATURE OF ACTION

1. Plaintiffs own homes subject to mortgages serviced by Defendants. Defendants

have a uniform practice of knowingly charging illegal and improper “processing fees” when 

payments on the mortgage are made over the phone or online, although neither the mortgages nor 

applicable statutory law expressly authorize those fees. Defendants have charged these “processing 

fees” to Plaintiffs, who have paid them. Accordingly, Plaintiffs seek relief for themselves and all 

others similarly situated for violations of the Federal Fair Debt Collection Practices Act and breach 

of their uniform mortgage contracts.

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PARTIES

2. Plaintiff Morris is a citizen and resident of Broward County, Florida, is over the 

age of eighteen and is otherwise sui juris.

3. Plaintiff Simmons is a citizen and resident of Los Angeles County, California, is 

over the age of eighteen and is otherwise sui juris.

4. Plaintiff Upton is a citizen and resident of Dallas County, Texas, is over the age of 

eighteen and is otherwise sui juris.

5. Plaintiff Michael Luzzi is a citizen and resident of New Haven County, 

Connecticut, is over the age of eighteen and is otherwise sui juris. 

6. Defendant PHH is a wholly-owned subsidiary of Ocwen Financial Corporation. 

PHH is an entity existing and incorporated pursuant to the laws of New Jersey with its principal 

place of business at 1 Mortgage Way, Mount Laurel, New Jersey 08054. Defendant is therefore a 

corporate citizen of New Jersey. Defendant is amenable to service of process c/o Corporation 

Service Company, 1201 Hays Street, Tallahassee, Florida 32301. PHH is a debt collector as 

defined by the FDCPA.

7. Defendant Ocwen Loan Servicing, LLC is a limited liability company with a 

principal place of business in West Palm Beach, Florida, and is one of the nation’s leading specialty 

loan servicing companies. Ocwen is a debt collector as defined under the FDCPA.

JURISDICTION AND VENUE

8. Plaintiffs have standing to bring a claim under the FDCPA because they were

directly affected by Defendants’ violations of the FDCPA, were subjected to Defendants’ illegal 

and improper debt collection activities, and suffered injury in fact as a direct consequence of 

Defendants’ illegal and improper debt collection activities, in the form of unlawful “processing 

fees” paid.

9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 

1332(d)(2)(A) because this is a class action for a sum exceeding $5,000,000.00, exclusive of 

interest and costs, and in which at least one class member is a citizen of a state different than 

Defendants. 

10. This Court has personal jurisdiction over PHH because PHH is authorized to do 

business and is conducting business throughout the United States, including in Florida. PHH 

services mortgages and collects debts in the United States, including Florida, and has sufficient 

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minimum contacts with this State and/or sufficiently avails itself of the markets of the various 

states of the United States, including Florida, to render the exercise of jurisdiction by this Court 

permissible.

11. This Court has personal jurisdiction over Ocwen because Ocwen is a Florida 

corporation and is authorized to do business and is conducting business throughout the United 

States, including in Florida. Ocwen services mortgages and collects debts in the United States, 

including Florida, and has sufficient minimum contacts with this State and/or sufficiently avails 

itself of the markets of the various states of the United States, including Florida, to render the 

exercise of jurisdiction by this Court permissible.

12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because this action 

concerns a mortgage on real property in the Southern District of Florida and a substantial part of 

the events giving rise to Plaintiffs’ claims took place in the Southern District of Florida.

FACTUAL ALLEGATIONS

A. PLAINTIFF MORRIS 

13. Plaintiff Morris resides at 1868 NW 74 Avenue, Hollywood, Florida 33024. 

Plaintiff Morris financed this purchase with a mortgage that was entered into on March 2, 2006. A 

copy of the mortgage is attached as Exhibit A (the “Morris Mortgage”).

14. At all relevant times, the Morris Mortgage was serviced by Defendants. The Morris 

Mortgage does not expressly provide for or authorize charging processing fees for making 

payments online or over the phone. Furthermore, such processing fees are not expressly authorized 

by Florida state law.

15. Plaintiff Morris was charged a $17.50 “processing fee” in April 2019, May 2019, 

and October 2019 for making a mortgage payment to Defendants over the phone or online. Plaintiff 

Morris was charged a $7.50 “processing fee” in June 2019, July 2019, August 2019, September 

2019, November 2019, December 2019, January 2020, and February 2020 for making a mortgage 

payment to Defendants over the phone or online. The “processing fee” is reflected as “SpeedPay”

on Plaintiff Morris’s Mortgage statements.

B. PLAINTIFF SIMMONS 

16. Plaintiff Simmons resides at 3681 Kensley Drive, Inglewood, CA 90305. Plaintiff 

Simmons made mortgage payments online and/or over the phone on property subject to a mortgage 

serviced by Defendants (the “Simmons Mortgage”). 

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17. At all relevant times, the Simmons Mortgage was serviced by Defendants. The 

Simmons Mortgage does not expressly provide for or authorize charging processing fees for 

making payments online or over the phone. Furthermore, such processing fees are not expressly 

authorized by California state law.

18. During the applicable limitations period, Defendants charged Plaintiff Simmons 

“processing fees” for making the mortgage payments online and/or over the phone, sent mortgage 

statements to Plaintiff Simmons’ home in Inglewood, and Plaintiff Simmons paid these fees while 

in the State of California.

C. PLAINTIFF UPTON 

19. Plaintiff Upton resides at 4320 Rainier Street, Apartment 1014, Irving, Texas 

75062. Plaintiff Upton made mortgage payments online and/or over the phone on property subject 

to a mortgage serviced by Defendants (the “Upton Mortgage”).

20. At all relevant times, the Upton Mortgage was serviced by Defendants. Plaintiff 

Upton’s loan was in default when Defendants obtained the servicing rights to the Upton Mortgage. 

The Upton Mortgage does not expressly provide for or authorize charging processing fees for 

making payments online or over the phone. Furthermore, such processing fees are not expressly 

authorized by Texas state law.

21. During the applicable limitations period, Defendants charged Plaintiff Upton 

“processing fees” for making the mortgage payments online and/or over the phone, sent mortgage 

statements to Plaintiff Upton’s home in Irving, Texas and Plaintiff Upton paid these fees while in 

the State of Texas.

D. PLAINTIFF LUZZI 

22. Plaintiff Luzzi resides at 35 Coachman Drive, Branford, Connecticut 06405.

Plaintiff Luzzi made mortgage payments online and/or over the phone on property subject to a 

mortgage serviced by Defendants (the “Luzzi Mortgage”).

23. At all relevant times, the Luzzi Mortgage was serviced by Defendants. Plaintiff 

Luzzis’ loan was in default when Defendants obtained the servicing rights to the Luzzi Mortgage. 

The Luzzi Mortgage does not expressly provide for or authorize charging processing fees for 

making payments online or over the phone. Furthermore, such processing fees are not expressly 

authorized by Connecticut state law.

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24. During the applicable limitations period, Defendants charged Plaintiff Luzzi 

“processing fees” for making the mortgage payments online and/or over the phone, sent mortgage 

statements to Plaintiff Luzzi’s home in Branford, and Plaintiff Luzzi paid these fees while in the 

State of Connecticut.

25. Where, like here, neither the contract creating the debt nor applicable law expressly 

authorizes the charging of processing fees, such as those charged by Defendants, such fees have 

been held unlawful because they violate the FDCPA when the debt collector retains any portion 

of the fee instead of passing the entire fee through to the payment processor.

26. Defendants do not pass the entire fee to a payment processor and instead retain a 

considerable portion thereof. Defendants fail to mention any third-party payment processor in any 

documentation available to Plaintiffs, including their payment histories. It is well known in the 

payment processing industry (but not by the general public) that third-party processors charge a 

small fraction of the amounts Defendants charge as “processing fees.” Defendants’ records will 

demonstrate the exact amount Defendants retains for each processing fee charged.

CLASS ACTION ALLEGATIONS

27. As detailed below in the individual counts, Plaintiffs bring this lawsuit on behalf of 

themselves and all others similarly situated, pursuant to Rule 23(a), (b)(2) and (b)(3) of the Federal 

Rules of Civil Procedure.

 CLASS DEFINITIONS

28. Plaintiffs seek to represent the following two nationwide “Classes”:

OCWEN CLASS

All individuals in the United States who, since March 25, 2016, paid a processing 

fee to Ocwen for making a payment over the phone or online in connection with 

a residential mortgage owned or serviced by Ocwen. Excluded from the Class

are all employees of Defendants, all members of the Settlement Class in 

McWhorter, et al. v. Ocwen Loan Servicing, LLC, et al., No. 2:15-cv-01831-

MHH, ECF No. 71 at 7 (N.D. Ala. Aug. 1, 2019), and the Court.

PHH CLASS

All individuals in the United States who, since March 25, 2016, paid a processing 

fee to PHH for making a payment over the phone or online in connection with a 

residential mortgage owned or serviced by PHH. Excluded from the Class are all 

employees of Defendants, all members of the Settlement Class in McWhorter, et 

al. v. Ocwen Loan Servicing, LLC, et al., No. 2:15-cv-01831-MHH, ECF No. 71 

at 7 (N.D. Ala. Aug. 1, 2019), and the Court.

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29. Plaintiffs reserve the right to modify or amend the definition of the proposed 

Classes before or after the Court determines whether such certification is appropriate as discovery 

progresses.

b. Numerosity

30. The Classes are comprised of thousands, if not millions, of customers throughout 

the United States, many of whom pay their mortgages online or over the phone. The Classes are 

so numerous that joinder of all members of the Classes are impracticable. The precise number of 

class members is unknown to Plaintiffs, but the precise number and identity of class members are 

easily identifiable through Defendants’ records.

c. Commonality/Predominance

31. This action involves common questions of law and fact, which predominate over 

any questions affecting individual class members. These common legal and factual questions 

include, but are not limited to, the following:

(a) whether Defendants’ practice of charging a “processing fee,” which is 

not authorized by contract or any provision of existing law, violates the 

FDCPA;

(b) whether Defendants’ practice of charging a “processing fee,” breaches 

Plaintiffs’ and Class Members’ mortgages;

(c) whether Plaintiffs and Class members have sustained monetary loss and 

the proper measure of that loss; and

(d) whether Plaintiffs and Class members are entitled to other appropriate 

remedies, including injunctive relief.

d. Typicality

32. Plaintiffs’ claims are typical of the claims of the members of the Classes because, 

inter alia, all Class members were injured through the uniform misconduct described above, all 

members of the Classes have mortgages serviced by Defendants just like Plaintiffs, and Plaintiffs 

are advancing the same claims and legal theories on behalf of himself and all Class Members. It is 

well known in the mortgage industry that mortgages generally do not expressly authorize 

processing fees to be charged in order to make a payment online or over the phone.

e. Adequacy of Representation

33. Plaintiffs will fairly and adequately protect the interests of the members of the

Classes. Plaintiffs have retained counsel experienced in complex consumer class action litigation, 

and Plaintiffs intend to prosecute this action vigorously. Plaintiffs have no adverse or antagonistic 

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interests to those of the Classes. Plaintiffs anticipate no difficulty in the management of this 

litigation as a class action. To prosecute this case, Plaintiffs have chosen the undersigned law firms, 

which have the financial and legal resources to meet the substantial costs and legal issues 

associated with this type of consumer class litigation.

f. Requirements of Fed. R. Civ. P. 23(b)(3)

34. The questions of law or fact common to Plaintiffs’ and each Class member’s claims 

predominate over any questions of law or fact affecting only individual members of the Classes. 

All claims by Plaintiffs and the unnamed Class members are based on the common course of 

conduct by Defendants to charge illegal “processing fees” to Plaintiffs and the unnamed Class 

members.

35. Common issues predominate when, as here, liability can be determined on a classwide basis, even when there will be some individualized damages determinations.

36. As a result, when determining whether common questions predominate, courts 

focus on the liability issue, and if the liability issue is common to the Classes as is in the case at 

bar, common questions will be held to predominate over individual questions.

g. Superiority

37. A class action is superior to individual actions in part because of the nonexhaustive factors listed below:

a. Joinder of all Class members would create extreme hardship and 

inconvenience for the affected customers as they reside throughout 

the country;

b. Individual claims by Class members are impractical because the 

costs to pursue individual claims exceed the value of what any one 

Class member has at stake. As a result, individual Class members 

have no interest in prosecuting and controlling separate actions;

c. There are no known individual Class members who are interested in 

individually controlling the prosecution of separate actions;

d. The interests of justice will be well served by resolving the common 

disputes of potential Class members in one forum;

e. Individual suits would not be cost effective or economically 

maintainable as individual actions; and

f. The action is manageable as a class action.

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h. Requirements of Fed. R. Civ. P. 23(b)(2)

38. Defendants have acted and refused to act on grounds generally applicable to the 

Classes by engaging in a common course of conduct by Defendants to charge illegal “processing 

fees” to Plaintiffs and the unnamed Class members, thereby making appropriate final injunctive 

relief with respect to the classes as a whole.

FRAUDULENT CONCEALMENT TOLLING

39. All applicable statutes of limitation have been tolled by Defendants’ knowing and 

active fraudulent concealment and denial of the facts alleged herein throughout the period relevant 

to this action. Plaintiffs and members of the class did not and could not have known about the facts 

giving rise to the causes of action at any point during Defendants’ charging of the illegal processing 

fees. Plaintiffs and class members could not have discovered the facts that would disclose 

Defendants’ fraud despite exercising reasonable care and diligence in seeking to learn them. 

Defendants fraudulently concealed the truth from its customers and, accordingly, the relevant 

statutes of limitation should be equitably tolled until Plaintiffs filed this action at the earliest.

40. Instead of disclosing that Defendants collects a massive profit from charging the 

“processing fees,” Defendants represents the fees are mandatory and authorized by either the 

mortgage or existing statutory law, and that borrowers are “agreeing” to pay the fees in order to 

be provided an additional “service,” despite the fact that collecting mortgage payments from 

borrowers is Defendants’ regular business practice. Defendants also never reveals that it does not 

pass the entire fee to a payment processor and instead retains a considerable portion thereof as 

additional profit. Defendants further fails to mention any third-party payment processor in any 

documentation available to Plaintiffs or class members. By making many affirmative 

representations that concealed the “processing fees” were merely a hidden profit center as 

described in this complaint, Defendants actively and successfully concealed Plaintiffs’ and class 

members’ causes of action. 

41. Furthermore, by making repeated false statements to consumers concerning the 

processing fees, Defendants actively and successfully concealed Plaintiffs’ and class members’ 

causes of action by fraudulent means. 

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COUNT I

For Violations of the Fair Debt Collection Practices Act,

15 U.S.C. § 1692, et seq.

(On behalf of Plaintiffs and Members of the Two Classes)

42. Plaintiffs reallege and incorporate by reference the allegations contained in 

paragraphs 1–41 as if fully set forth herein.

43. This cause of action is brought pursuant to the Fair Debt Collection Practices Act 

(“FDCPA”), 15 U.S.C. § 1692k(a)(2)(b). 

44. It is a violation of the FDCPA for a debt collector to undertake the “collection of 

any amount (including any interest, fee, charge, or expense incidental to the principal obligation) 

unless such amount is expressly authorized by the agreement creating the debt or permitted by 

law.” 15 U.S.C. § 1692f(1).

45. At all times material, Defendants were and are each a “debt collector” under the 

FDCPA because they regularly collect debts owed others and acquired Plaintiffs Luzzi and 

Upton’s loans and the loans of the Class members when those loans were in default. 15 U.S.C. § 

1692a(6). Moreover, Defendants were and are each a “debt collector” under the FDCPA because 

each uses an instrumentality of interstate commerce or the mails in business the principal purpose 

of which is the collection of any debts. Id. Indeed, the Defendants meet the general definition of a 

“debt collector” under the FDCPA. 

46. As debt collectors, Defendants used instrumentalities of interstate commerce and 

the mail for the principal purpose of collecting debts from the Plaintiffs and the Classes. 

47. At all times material, Plaintiffs and Class Members were “consumers” because each 

was a natural person obligated to pay the mortgage debts at issue. 15 U.S.C. § 1692a(3).

48. At all times material, Plaintiffs’ and the Class Members’ mortgage debts were 

“debts” because they were each an obligation of a consumer to pay money arising out of a 

transaction in which the property that was the subject of the transaction was primarily for personal, 

family, or household purposes. 15 U.S.C. § 1692a(5).

49. The “processing fees” charged to Plaintiffs and members of the Class were 

incidental to the consumer debts.

50. Defendants had no legal right to seek collection of (or to actually collect) any 

“processing fees” from Plaintiffs and members of the Classes. Defendants had and still has the 

underlying contracts in its possession, custody or control, which do not expressly authorize these 

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“processing fees,” and Defendants therefore had actual knowledge that it had no legal right to 

collect these fees.

51. The “processing fee” is not authorized by the mortgage contracts of Plaintiffs and 

the members of the Classes or by Federal law, but Defendants collected these fees anyway. In 

doing so, Defendants violated the FDCPA.

52. As a direct and primary result of Defendants’ violations, Plaintiffs and members of 

the Classes have been harmed. Plaintiffs and the Class members are entitled to actual damages, 

statutory damages, and attorney’s fees and costs. 15 U.S.C. § 1692k(a)(1); 15 U.S.C. § 

1692k(a)(2)(A); 15 U.S.C. § 1692k(a)(3).

COUNT II

Breach of Contract

(On behalf of Plaintiffs and Members of the Two Classes)

53. Plaintiffs reallege and incorporate by reference the allegations contained in

paragraphs 1–41 as if fully set forth herein.

54. Plaintiffs and Class Members purchased homes subject to Mortgages. See Ex. A.

55. Defendants became parties to the Mortgages when they became Plaintiffs’ and 

Class Members’ servicers. Defendants collect monies from the Plaintiffs and Class members 

pursuant to those Mortgages, and avail themselves of the benefits of the Mortgages. 

56. The Mortgages contain a uniform covenant providing only that “amounts disbursed 

by the lender” will become debt of the borrower. See, e.g., Ex. A, ¶ 7.

57. Thus, Defendants may only charge amounts actually disbursed to pay for the cost 

of processing mortgage payments online or over the phone. Despite this express limitation, 

Defendants charge processing fees not agreed to in Plaintiffs’ and Class Members’ Mortgages and 

in excess of the amounts actually disbursed by Defendants to cover the cost of processing the 

mortgage payments over the phone or online.

58. Defendants therefore breached its contracts with Plaintiffs and Class Members 

when they charged Plaintiffs and Class Members “processing fees” not agreed to in their 

Mortgages and in excess of the amounts Defendants actually disbursed to pay the costs of 

processing the mortgage payments over the phone or online. 

59. Defendants’ charging of processing fees also directly breaches the uniform 

“Governing Law” provision of the Mortgages. See, e.g., Ex. A ¶15 (providing the Morris Mortgage 

“shall be governed by Federal law and the law of the jurisdiction in which the property is located”).

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60. Charging “processing fees” violates the FDCPA because Plaintiffs’ and Class 

Members’ Mortgages do not expressly authorize Defendants to charge “processing fees,” nor are 

the “processing fees” permitted by applicable state statutory law. 

61. By violating the FDCPA, Defendants violated the Governing Law provision and 

breached Plaintiffs’ and Class Members’ Mortgages. 

62. Defendants’ charging of processing fees also directly breaches the uniform “Loan 

Charges” provision of the Mortgages. See, e.g., Ex. A ¶ 13 (providing that where “loan charges 

collected or to be collected in connection with the loan exceed permitted limits, then: (a) any such 

loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; 

and (b) any sums already collected from Borrower which exceeded permitted limits will be 

refunded to Borrower”).

63. Because Defendants are not permitted to charge processing fees, the uniform Loan 

Charges provision of the Mortgages requires Defendants to reduce the processing fees to zero and 

refund the entire amounts collected. 

64. Alternatively, to the extent Defendants are permitted to charge processing fees, the 

processing fees Defendants charged Plaintiffs and Class Members exceed the maximum charges 

allowable under the law, and therefore must be reduced by the amount necessary to reduce the 

charge to the permitted limit, and Defendants must refund any excess sums they collected.

65. As a direct and proximate result of Defendants’ breach, Plaintiffs and members of 

the Class suffered actual damages, in the form of payment of non-contractual “processing fees.”

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for a judgment:

a. Certifying the Classes as requested herein;

b. Awarding Plaintiffs and members of the Classes actual and statutory damages;

c. Awarding declaratory and injunctive relief as permitted by law or equity, including 

declaring Defendants’ practices as set forth herein to be unlawful and enjoining 

Defendants from continuing those unlawful practices as set forth herein, and 

directing Defendants to identify, with Court supervision, victims of its conduct and 

pay them all money it is required to pay;

d. Awarding attorneys’ fees and costs; and

e. Providing such further relief as may be just and proper.

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a jury trial as to all claims so triable.

Dated: July 24, 2020 Respectfully submitted,

By: /s/ Adam M. Moskowitz

Adam M. Moskowitz 

Florida Bar No. 984280

adam@moskowitz-law.com

Howard M. Bushman 

Florida Bar No. 0364230

howard@moskowitz-law.com

Joseph M. Kaye

Florida Bar No. 117520

joseph@moskowitz-law.com

Barbara C. Lewis

Florida Bar 118114 

barbara@moskowitz-law.com

THE MOSKOWITZ LAW FIRM, PLLC

2 Alhambra Plaza

Suite 601

Coral Gables, FL 33134 

Telephone: (305) 740-1423

By: /s/ Josh Migdal

MARK MIGDAL & HAYDEN

80 S.W. 8th Street, Suite 1999

Miami, Florida 33130

Telephone: (305) 374-0440 

Josh Migdal, Esq.

Florida Bar No. 19136

josh@markmigdal.com

Yaniv Adar, Esq.

Florida Bar No. 63804

yaniv@markmigdal.com

eservice@markmigdal.com

Counsel for Plaintiffs and the Class

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing was filed July 24, 2020, with 

the Court via CM/ECF system, which will send notification of such filing to all attorneys of record.

By: /s/ Adam M. Moskowitz

Adam M. Moskowitz

Florida Bar No. 984280

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