UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

WINIFERD B. RAWLINS, II

412 West Arlington Drive

Trenton, OH 45067

 Plaintiff,

v.

NATIONSTAR MORTGAGE, LLCd.b.a.

MR. COOPER

c/o Corporation Service Company

50 West Broad Street, Suite 1330

Columbus, OH 43215

Defendant.

Case No.

COMPLAINT FOR MONEY

(DEMAND FOR A JURY TRIAL)

Plaintiff Winiferd B. Rawlins, II, by and through counsel, for his Complaint against

Defendant Nationstar Mortgage, LLC d.b.a. Mr. Cooper states as follows:

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff Winiferd B. Rawlins, II (“Plaintiff”) is the owner of real property located

at 8412 West Arlington Drive, Trenton, Ohio 45067 (the “Home”).

2. Plaintiff currently maintains the Home as his primary, principal residence, and has

so maintained the Home at all times relevant.

3. Defendant Nationstar Mortgage, LLC. d.b.a. Mr. Cooper (“Defendant” or “Mr.

Cooper”) is the current servicer of a note e(the “Note”) and a mortgage on the Home that

purportedly secures the Note (the “Mortgage”) each executed by Plaintiff (collectively referred

to hereinafter as the “Loan”).

4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 as this action arises

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under the Dodd-Frank Wall Street Reform and Consumer Protection Act (DFA), and the Real

Estate Settlement Procedures Act, 12 U.S.C. §§ 2601, et seq. (RESPA).

5. This action is filed to enforce regulations promulgated by the Consumer Finance

Protection Bureau (CFPB) and implemented pursuant to section 6(f) of RESPA which became

effective on January 10, 2014, specifically, 12 C.F.R. §§ 1024.35, 1024.36, and 1024.41 of

Regulation X.

6. Venue lies in this District pursuant to 28 U.S.C. § 1391(b) as Plaintiffs maintain

the Home as their primary residence within this District.

INTRODUCTION

7. The Loan and the Home are the subject of foreclosure proceedings in the Court of

Common Pleas for Butler County, Ohio captioned or otherwise stylized as Nationstar Mortgage,

LLC v. Winiferd B. Rawlins, II, et al., and assigned Case No. CV 2016 06 1307 (the

“Foreclosure”).

8. In an effort to save the Home and to continue to make reasonable payments on the

Loan, Plaintiff sought relief from Mr. Cooper in the form of loss mitigation, specifically a loan

modification, in October of 2017.

9. Plaintiff submitted a loss mitigation application to Mr. Cooper, by and through

counsel, on October 12, 2017.

10. Mr. Cooper mailed correspondence dated October 14, 2017 acknowledging that

they had received the Application and that it was complete.

11. Plaintiff did not receive any further written correspondence from Mr. Cooper

regarding his loss mitigation application prior to Mr. Cooper’s request in the Foreclosure that a

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foreclosure sale be scheduled in violation of Regulation X of the Real Estate Settlement

Procedures Act (RESPA) dual tracking provision.

12. In January 2013, the CFPB issued a number of final rules concerning mortgage

markets in the United States, pursuant to the DFA, Public Law No. 111-203, 124 Stat. 1376

(2010).

13. Specifically, on January 17, 2013, the CFPB issued the RESPA (Regulation X)

Mortgage Servicing Final Rules, 78 F.R. 10695 (February 14, 2013), which became effective on

January 10, 2014.

14. The Loan is a “federally related mortgage loan” as defined by 12 C.F.R. §

1024.2(b).

15. Mr. Cooper is subject to the aforesaid Regulations and does not qualify for the

exception for “small servicers”, as defined in 12 C.F.R. § 1026.41(e)(4), nor the exemption for a

“qualified lender”, defined in 12 C.F.R. § 617.7000.

16. Plaintiff has a private right of action under RESPA pursuant to 12 U.S.C. §

2605(f) for the claimed breaches which provides for remedies including actual damages, costs,

statutory damages, and attorneys’ fees.

17. Plaintiff is asserting a claim for relief against Mr. Cooper under RESPA for

breaches of 12 C.F.R. § 1024.41 of Regulation X as set forth, infra.

18. The Ohio Consumer Sales Practices Act (OCSPA) is a state consumer protection

law prohibiting unfair and deceptive acts and practices by suppliers before, during, or after a

consumer transaction. R.C. § 1345.02(A).

19. Mr. Cooper is a supplier, Plaintiff is a consumer, and the Loan is a consumer

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transaction, subject to the requirements of the OCSPA.

20. Plaintiff also asserts a private right of action against Mr. Cooper for unfair and

deceptive acts and practices in servicing and collecting on the Loan in violation of the OCSPA.

21. Congress enacted the Fair Debt Collection Practices Act (FDCPA) to prohibit the

“[u]se of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C § 1692a.

22. Mr. Cooper is a debt collector, Plaintiff is a consumer, and the Loan is a debt, as

defined by the FDCPA.

23. The Loan was in default at the time that Mr. Cooper began servicing the Loan.

24. Plaintiff also asserts a private right of action against Mr. Cooper under the

FDCPA, pursuant to 15 U.S.C. § 1692k, for Mr. Cooper’s conduct in connection with collection

of the Loan and Plaintiff is entitled to recover actual damages, statutory damages, costs, and

attorneys’ fees.

BACKGROUND

25. On or about October 12, 2017, Plaintiff, by and through counsel, submitted a loss

mitigation application to Mr. Cooper (the “Application”) via email correspondence to Mr.

Cooper. A true and accurate copy of the cover page for the Application, outlining the submitted

documents constituting the Application, is attached as Plaintiff's Exhibit 1.

26. On or about October 14, 2017, Mr. Cooper sent correspondence acknowledging

that the Application was complete. A true and accurate copy of such correspondence is attached

as Plaintiff's Exhibit 2.

27. On or before December 18, 2017, Attorney C. Scott Casterline of Carlisle,

McNellie, Rini, Kramer, & Ulrich Co., L.P.A., counsel for Mr. Cooper in the Foreclosure

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(“Foreclosure Counsel”), filed a “Motion to Appoint a Private Selling Officer” in the Foreclosure

(the “Motion”). A printout of the Foreclosure docket is attached as Plaintiff's Exhibit 3.

28. On or about December 19, 2017, Plaintiff logged into Mr. Cooper’s online portal

and found correspondence dated November 10, 2017 had been uploaded to the portal (the

“Denial”). A true and accurate copy of the Denial is attached as Plaintiff's Exhibit 4.

29. At no point in time after sending the October 14, 2017 correspondence did Mr.

Cooper or Foreclosure Counsel notify Plaintiff or his counsel that the Denial had been uploaded

to Mr. Cooper’s online portal or that they should monitor the portal for such notifications.

30. On December 20, 2017, Plaintiff, by and through counsel, sent correspondence to

Mr. Cooper captioned “Re: Notice of error pursuant to 12 C.F.R. §1024.35(b)(11) for violation

of 12 C.F.R. §1024.41(c); Notice of Error pursuant to 12 C.F.R. §1024.35(b)(10) for violation of

12 C.F.R. §1024.41(g)” via Certified U.S. Mail [Receipt 7014 2120 0003 0667 0661] (the

“NOE”). A true and accurate copy of the NOE is attached as Plaintiff's Exhibit 5.

31. Plaintiff sent the NOE to the address designated by Mr. Cooper for the receipt of

such correspondence pursuant to 12 C.F.R. §1024.35(c).

32. Mr. Cooper received the NOE on or about January 2, 2018. A copy of the

“Product & Tracking Information” from USPS’s website (www.usps.com) for the NOE is

attached as Plaintiff's Exhibit 6.

33. On or about December 26, 2017, Mr. Cooper sent correspondence acknowledging

their receipt of the NOE. A true and accurate copy of such correspondence is attached as

Plaintiff's Exhibit 7.

34. On or before January 4, 2018, Foreclosure Counsel’s Motion was denied. See

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Plaintiff's Exhibit 3.

35. Despite Mr. Cooper’s receipt of the NOE, on January 18, 2018, Foreclosure

Counsel filed a “Praecipe for Order of Sale” in the Foreclosure requesting that the Clerk of

Common Pleas Court in Butler County, Ohio issue an order for a sheriff’s sale to the Sheriff of

Butler County, Ohio (the “Order”). See Id.

36. Throughout this entire ordeal, Plaintiff has simply wanted to save his Home with a

loan modification, to responsibly resume his mortgage payments, and begin the lengthy process

of rehabilitating his credit.

37. Mr. Cooper’s actions have further caused Plaintiff to incur legal fees and expenses

to draft and mail notices of error via Certified U.S. Mail to seek Mr. Cooper’s compliance with

their obligations under Regulation X and to provide information related to the servicing of the

Loan. See Plaintiff's Exhibit 5.

38. At the time of the filing of this Complaint, Mr. Cooper has had at least Seven

Thousand and Three Hundred Fifty One (7,351) consumer complaints lodged against them

nationally, specifically concerning the issue identified on the CFPB’s consumer complaint

database as “loan modification, collection, foreclosure” concerning mortgages. Each such

complaint is filed and cataloged in the CFPB’s publicly accessible online database.

(https://www.consumerfinance.gov/data-research/consumer-complaints/).

COUNT

STATUTE VIOLATED

SUMMARY OF CLAIM AND VIOLATIONS

One

12 C.F.R. § 1024.41(g)

Prohibition on Dual

Tracking - Improperly

Violation: Mr. Cooper allowed motions for sheriff sale to be filed

despite not providing response to borrower.

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moving forward with the

Foreclosure

Two

12 C.F.R. §

1024.41(c)(1)(ii)

Failure to Timely Review

Loss Mitigation

Application

Violation: Mr. Cooper failed to provide the borrower with the

response within 30 days.

Three

15 U.S.C. §1692 (c)

FDCPA - Improper

Communication with a

Represented Party

Violation: Mr. Cooper communicated directly with Plaintiff via

online portal.

Four

15 U.S.C. §1692 (k)

FDCPA - Unconscionable

Means to Collect a Debt

Violation: Mr. Cooper employed an unfair and unconscionable

means to collect or attempt to collect a debt.

Five

R.C. § 1345.02(A)

OCSPA - Unconscionable

Means to Collect a Debt

Violation: Mr. Cooper employed unfair and deceptive acts

before, during, or after a consumer transaction.

COUNT ONE

VIOLATION OF 12 C.F.R. § 1024.41(g)

(Moving for an order for sheriff’s sale without sending notice of which loss mitigation

options, if any, were available to Plaintiff)

39. Plaintiff restates and incorporates herein each of their statements and allegations

contained in paragraphs 1 through 38 in their entirety, as if fully rewritten herein

40. 12 C.F.R. § 1024.41(a) explicitly provides that “[a] borrower may enforce the

provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. §2605(f))”.

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41. 12 C.F.R. § 1024.41(g) provides that “[i]f a borrower submits a complete loss

mitigation application after a servicer has made the first notice or filing required by applicable

law for any judicial or non-judicial foreclosure process but more than 37 days before a

foreclosure sale, a servicer shall not move for foreclosure judgment or order of sale, or conduct a

foreclosure sale, unless: (1) The servicer has sent the borrower a notice pursuant to paragraph

(c)(1)(ii) of this section that the borrower is not eligible for any loss mitigation option and the

appeal process in paragraph (h) of this section is not applicable, the borrower has not requested

an appeal within the applicable time period for requesting an appeal, or the borrower's appeal has

been denied; (2) The borrower rejects all loss mitigation options offered by the servicer; or (3)

The borrower fails to perform under an agreement on a loss mitigation option.”

42. Comment 1 of the Official Interpretations of the CFPB to 12 C.F.R. § 1024.41(g)

provides that “[t]he prohibition on a servicer moving for judgment or order of sale includes

making a dispositive motion for foreclosure judgment, such as a motion for default judgment,

judgment on the pleadings, or summary judgment, which may directly result in a judgment of

foreclosure or order of sale. A servicer that has made any such motion before receiving a

complete loss mitigation application has not moved for a foreclosure judgment or order of sale if

the servicer takes reasonable steps to avoid a ruling on such motion or issuance of such order

prior to completing the procedures required by § 1024.41, notwithstanding whether any such

action successfully avoids a ruling on a dispositive motion or issuance of an order of sale.”

43. On or about October 12, 2017 Plaintiff submitted the Application to Mr. Cooper.

See Plaintiff's Exhibit 1.

44. There was no sheriff’s sale scheduled at the time the Application was submitted to

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Mr. Cooper. See Plaintiff's Exhibit 1 and 3.

45. On or about October 14, 2017 Mr. Cooper sent correspondence acknowledging

that the Application was complete. See Plaintiff's Exhibit 2.

46. On December 18, 2017, Mr. Cooper had not provided a response to the

Application as required under 12 C.F.R. § 1024.41(c).

47. Mr. Cooper’s failure to provide a response as noted in Paragraph 46 above

deprived the Plaintiff of the ability to not only timely appeal the decision on the Application but

also, upon belief, deprived the Plaintiff from being reviewed for an eligible. modification under

the USDA guidelines.

48. Despite the above, on December 18, 2017 Mr. Cooper directed its Foreclosure

Counsel to file a Motion to Appoint Private Selling Officer pursuant to ORC 2329.151(C) and

2329.152. See Plaintiff’s Exhibit 3. Following the denial of this Motion by the Court, Mr.

Cooper allowed Foreclosure Counsel to file the Praecipe for Order of Sheriff Sale in the

Foreclosure on January 18th, 2018. See Id. The Order for Sheriff Sale was granted on January

23rd, 2018. As of the filing of this Complaint the actual sheriff sale date has not yet been set by

the Butler County (OH) Sheriff.

49. Mr. Cooper’s actions in allowing Foreclosure Counsel to request that a sheriff’s

sale be scheduled constitute a clear, separate, and distinct violation of 12 C.F.R. § 1024.41(g).

50. Mr. Cooper’s actions are part of a pattern and practice of behavior in conscious

disregard for Plaintiff's rights.

51. In addition to the damages outlined, supra, Mr. Cooper’s violation of 12 C.F.R. §

1024.41(g) directly and proximately caused Plaintiff to incur actual damages including but not

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limited to attorneys’ fees. See Plaintiff's Exhibit 5.

52. As a result of Mr. Cooper’s actions, Mr. Cooper is liable to Plaintiff for actual

damages, statutory damages, costs, and attorneys’ fees.

COUNT TWO

VIOLATION OF 12 C.F.R. § 1024.41(c)

(Failure to properly respond to a complete loss mitigation application)

53. Plaintiff restates and incorporates herein each of their statements and allegations

contained in paragraphs 1 through 38 in their entirety, as if fully rewritten herein.

54. 12 C.F.R. § 1024.41(a) explicitly provides that “[a] borrower may enforce the

provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. §2605(f))”.

55. 12 C.F.R. § 1024.41(c)(1) provides that “[i]f a servicer receives a complete loss

mitigation application more than 37 days before a foreclosure sale, then, within 30 days of

receiving a borrower's complete loss mitigation application, a servicer shall:(i) Evaluate the

borrower for all loss mitigation options available to the borrower; and (ii) Provide the borrower

with a notice in writing stating the servicer's determination of which loss mitigation options, if

any, it will offer to the borrower on behalf of the owner or assignee of the mortgage. The servicer

shall include in this notice the amount of time the borrower has to accept or reject an offer of a

loss mitigation program as provided for in paragraph (e) of this section, if applicable, and a

notification, if applicable, that the borrower has the right to appeal the denial of any loan

modification option as well as the amount of time the borrower has to file such an appeal and any

requirements for making an appeal, as provided for in paragraph (h) of this section.”

56. Comment 1 of the Official Interpretations of the CFPB to 12 C.F.R. §

1024.41(b)(3) provides that if no foreclosure sale is scheduled as of the date a loss mitigation

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application is received, the application is considered to have been received more than ninety (90)

days before any foreclosure sale.

57. On or about October 12, 2017 Plaintiff submitted the Application to Mr. Cooper.

See Plaintiff's Exhibit 1.

58. There was no sheriff’s sale scheduled at the time the Application was submitted to

Mr. Cooper. See Plaintiff's Exhibit 1 and 3.

59. On or about October 14, 2017 Mr. Cooper sent correspondence acknowledging

that the Application was complete. See Plaintiff's Exhibit 2.

60. As of October 12, 2017, Mr. Cooper was in possession of a complete loss

mitigation application by and through their receipt of the Application and therefore were

obligated to review such application and provide a notice in writing in accordance with the

requirements of 12 C.F.R. § 1024.41(c)(1) within thirty (30) days of October 12, 2017, that is, on

or before November 11, 2017. See Plaintiff's Exhibit 1-2.

61. On or about December 19, 2017, Plaintiff logged into Mr. Cooper’s online portal

and found the Denial had been uploaded to the portal with no prior notice of the posting of such

or notice to monitor the portal for the same. See Plaintiff's Exhibit 4.

62. At no point in time after the October 14, 2017 correspondence did Mr. Cooper or

Foreclosure Counsel notify Plaintiffs or their counsel that the Denial had been uploaded to Mr.

Cooper’s online portal. See Plaintiff's Exhibit 5.

63. Mr. Cooper’s failure to ensure the Denial was received by Plaintiff by mailing the

Denial to the Plaintiff or notifying Plaintiff that the Denial had been uploaded to Mr. Cooper’s

online portal constitutes a clear, separate, and distinct violation of 12 C.F.R. § 1024.41(c).

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64. Mr. Cooper’s actions are part of a pattern and practice of behavior in conscious

disregard for Plaintiff's rights.

65. In addition to the damages outlined, supra, Plaintiff's violation of 12 C.F.R. §

1024.41(c)(ii) directly and proximately caused Plaintiff to incur actual damages including but not

limited to attorneys’ fees and expenses in researching, drafting, and sending the NOE in an

attempt to have Mr. Cooper properly review the Application. See Plaintiff's Exhibit 5.

66. As a result of Mr. Cooper’s actions, Mr. Cooper is liable to Plaintiff for actual

damages, statutory damages, costs, and attorneys’ fees.

COUNT THREE

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. §1692 (c)

67. Plaintiff restates and incorporates herein each of their statements and allegations

contained in paragraphs 1 through 38 in their entirety, as if fully rewritten herein.

68. 15 U.S.C. § 1692c provides that “[w]ithout the prior consent of the consumer

given directly to the debt collector or the express permission of a court of competent jurisdiction,

a debt collector may not communicate with a consumer in connection with the collection of any

debt...if the debt collector knows the consumer is represented by an attorney with respect to such

debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the

attorney fails to respond within a reasonable period of time to a communication from the debt

collector or unless the attorney consents to direct communication with the consumer.”

69. In the course of acting as a debt collector Mr. Cooper received and handled loss

mitigation applications and correspondence regarding the Loan.

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70. Although Mr. Cooper was aware that Plaintiff was represented by counsel, Mr.

Cooper still communicated directly with Plaintiff via the online portal on or before December 19,

2017. See Plaintiff's Exhibits 2 and 5.

71. Mr. Cooper violated 15 U.S.C. § 1692(c) because its conduct as outlined herein

constitutes a violation of communication with the consumer generally and ceasing

communication to collect or to attempt to collect a debt.

72. Mr. Cooper’s conduct was outrageous, willful, and wanton, and it showed a

reckless disregard for Plaintiff's rights.

73. Mr. Cooper is liable to the Plaintiff for actual damages, statutory damages, and

reasonable attorneys’ fees and costs.

COUNT FOUR

FAIR DEBT COLLECTION PRACTICES ACT

15 U.S.C. §1692 (k)

74. Plaintiff restates and incorporates herein each of their statements and allegations

contained in paragraphs 1 through 38 in their entirety, as if fully rewritten herein.

75. 15 U.S.C. § 1692(f) provides that a debt collector may not use unfair or

unconscionable means to collect or attempt to collect any debt.

76. 15 U.S.C. § 1692(d) provides that a debt collector may not engage in any conduct

the natural consequence of which is to harass, oppress, or abuse any person in connection with

the collection of a debt.

77. In the course of acting as a debt collector Mr. Cooper received and handled loss

mitigation applications and correspondence regarding the Loan.

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78. Although Mr. Cooper was aware that Plaintiff had not received the Denial in a

timely manner, Mr. Cooper did not prevent Foreclosure Counsel from requesting that a sheriff’s

sale be scheduled in a practice known as “dual tracking” that is specifically prohibited under the

federal Real Estate Settlement Procedures Act.

79. Mr. Cooper violated 15 U.S.C. § 1692(f) because its conduct as outlined herein

constitutes an unconscionable means to collect or to attempt to collect a debt.

80. Mr. Cooper violated 15 U.S.C. § 1692(d) by employing an unfair and

unconscionable means to collect the subject debt.

81. Mr. Cooper’s conduct has caused Plaintiff to suffer great emotional distress driven

by the fear that they might lose their home which has resulted in loss of sleep, anxiety,

depression, and embarrassment.

82. Mr. Cooper’s conduct was outrageous, willful, and wanton, and it showed a

reckless disregard for Plaintiff's rights.

COUNT FIVE

OHIO CONSUMER SALES PRACTICES ACT

R.C. § 1345.02(A)

83. Plaintiff restates and incorporates herein each of their statements and allegations

contained in paragraphs 1 through 38 and 74 through 80 in their entirety, as if fully rewritten

herein.

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84. By ignoring the NOE, while at the same time allowing Foreclosure Counsel to

request a sheriff’s sale, Mr. Cooper engaged in unfair and deceptive acts and practices in

violation of R.C. § 1345.02(A).

85. As a result of the conduct of Mr. Cooper, Plaintiff has suffered anxiety and fear of

losing his home.

86. The conduct of Mr. Cooper was outrageous, willful, and wanton, and it showed a

reckless disregard for Plaintiff's rights, and Plaintiff is entitled to recover actual damages,

statutory damages, costs, and attorneys’ fees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Winiferd B. Rawlins, II prays that this Court enter its order

granting judgment in his favor as follows:

A) A finding that Mr. Cooper committed violations of 12 C.F.R. § 1024.41 as alleged

in Counts One and Two;

B) A finding that Mr. Cooper committed violations of the FDCPA and OCSPA as

alleged in Counts Three through Five;

C) For actual damages in an amount to be determined at trial as to each and every

count;

D) For costs, and reasonable attorneys’ fees as alleged in each and every Count;

E) For statutory damages against Mr. Cooper in the amount of Two Thousand Dollars

($2,000.00) as to each violation of 12 C.F.R. § 1024.41, as alleged by and through

Counts One through Two;

F) For statutory damages against Mr. Cooper in the amount of One Thousand Dollars

($1,000.00) for their violation of the FDCPA as alleged in Count Three and/or

Count Four;

G) For statutory damages against Mr. Cooper in the amount of at least Five Hundred

Dollars ($500.00) but no more than Five Thousand Dollars ($5,000.00) for their

violation of the OCSPA as alleged in Count Five;

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H) Such other relief which this Court may deem appropriate.

Respectfully submitted,

/s/ Marc E. Dann

Marc E. Dann (0039425)

Brian D. Flick (0081605)

Daniel M. Solar (0085632)

DANNLAW

P.O. Box 6031040

Cleveland, OH 44103

Telephone: (216)373-0539

Facsimile: (216)373-0536

notices@dannlaw.com

Counsel for Plaintiff

JURY DEMAND

Plaintiff hereby requests a trial by jury on all issues, with the maximum number of jurors

permitted by law.

/s/ Marc E. Dann

Marc E. Dann (0039425)

Brian D. Flick (0081605)

Daniel M. Solar (0085632)

DANNLAW

Counsel for Plaintiff

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