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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON

MARIE A. DICOWDEN,

3610 Yacht Club Drive Apt 1108

Aventura, FL 33180

Plaintiff,

v.

PNC BANK, NATIONAL ASSOCIATION,

Corporation Service Company 

50 West Broad Street Suite 1330

Columbus, OH 43215

Case No. 3:18-cv-00148

COMPLAINT

Plaintiff, Marie A. DiCowden, by and through counsel, for her Complaint against 

Defendant, PNC Bank, National Association, states:

PARTIES, JURISDICTION, AND VENUE

1. Marie A. DiCowden (“DiCowden” or “Plaintiff”) is the owner of real property 

and the improvements thereupon located at 123 Wolfe Street, Alexandria, VA 22314 (the 

“Home”).

2. DiCowden currently maintains the Home as her primary, principal residence, and 

has so maintained the Home at all times relevant to the allegations in this Complaint.

3. PNC Bank, National Association (“Defendant” or “PNC”) is the current servicer 

of a note executed by DiCowden (the “Note”) and a mortgage on the Home executed by 

DiCowden that purportedly secures the Note (the “Mortgage”) (collectively referred to 

hereinafter as the “Loan”). 

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

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

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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. § 1024.41 of Regulation X. 

6. Venue lies in this District pursuant to 28 U.S.C. § 1391(b) as a substantial part of 

the events or omissions giving rise to the claim occurred within this District as Defendant 

maintains a significant majority of their mortgage servicing operations within this District. 

INTRODUCTION AND BASIS FOR RELIEF

7. DiCowden brings this case against PNC because she is a victim of “dual-tracking” 

"by PNC. As detailed herein below, DiCowden sought to save her Home by submitting a 

complete loss mitigation application. Despite this fact, PNC allowed the non-judicial foreclosure 

process to be initiated against her.

8. 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). 

9. 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.

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

1024.2(b).

11. PNC 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. 

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12. DiCowden 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.

DICOWDEN’S FINANCIAL DIFFICULTIES, FORECLOSURE,

AND ATTEMPTS TO SAVE THE HOME

13. Like many individuals, over the past decade DiCowden had fallen under 

economic hardship due to a personal healthcare crisis that resulted in a reduction in her income 

as a psychologist. As a result, DiCowden feared for her ability to make her payments on the 

Loan and was fearful of the possibility of losing her Home to a foreclosure sale. In an effort to 

save her Home, DiCowden submitted a complete loss mitigation application to PNC in 

September of 2017. 

14. Specifically, DiCowden submitted a loss mitigation application to PNC on or 

about August 27, 2017 (“Submission #1). A true and accurate copy of the successful fax 

transmission for Submission #1 is attached as Plaintiff’s Exhibit 1. 

15. On or about August 30, 2017, PNC sent correspondence to DiCowden, stating 

that DiCowden needed to submit additional documentation to proceed with the loss mitigation 

process (“Request #1”). A true and accurate copy of Request #1 is attached as Plaintiff’s Exhibit 

2. 

16. On September 29, 2017, DiCowden submitted any and all documents requested 

by and through Request #1 to PNC via email correspondence to an individual identified as Ed R., 

a representative of PNC, at Ed.R@pnc.com (“Submission #2”). A true and accurate copy of the 

cover page for the Submission #2 is attached as Plaintiff’s Exhibit 3.

17. On October 2, 2017, PNC sent correspondence to DiCowden acknowledging 

receipt of Submission #2. A true and accurate copy of such correspondence is attached as 

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Plaintiff’s Exhibit 4.

18. Submission #2 rendered DiCowden’s pending loss mitigation application facially 

complete as of September 29, 2017. See Plaintiff’s Exhibits 1-4.

19. On or before October 9, 2017, Samuel A. White, P.C. (“Foreclosure Counsel”) 

sent correspondence to DiCowden advising that their law firm had been retained to initiate 

foreclosure proceedings against the Home. A true and accurate copy of such correspondence is 

attached as Plaintiff’s Exhibit 5. 

20. On or about October 17, 2017, PNC requested via telephone that DiCowden 

submit additional documentation to proceed with the loss mitigation process (“Request #2”). 

21. On or about October 23, 2017, DiCowden submitted any and all documents 

requested by and through Request #2 to PNC via certified mail (“Submission #3”). A copy of 

the “Product & Tracking Information” from the website for the United States Postal Service 

(USPS) (www.usps.com) for Submission #3 is attached as Plaintiff’s Exhibit 6.

22. On or about October 30, 2017 PNC sent correspondence to DiCowden, stating 

that DiCowden needed to submit additional documentation to proceed with the loss mitigation 

process (“Request #3”). A true and accurate copy of Request #3, is attached as Plaintiff’s 

Exhibit 7. 

23. Before rendering a decision on the loan, despite all of DiCowden’s efforts and 

responsiveness to each request and PNC therefore being in possession of a facially complete, if 

not fully complete, application, PNC allowed the owner of the Loan to initiate the foreclosure 

process by scheduling a Trustee’s Sale for December 6, 2017 and recording notice of such on or 

before November 2, 2017 in the Clerk’s Office of Circuit Court of the City of Alexandria, 

Virginia (the “Initial Foreclosure”) in violation of Regulation X of the Real Estate Settlement 

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Procedures Act (RESPA) dual tracking provision. A true and accurate copy of correspondence 

sent by Foreclosure Counsel regarding the Initial Foreclosure is attached as Plaintiff’s Exhibit 8; 

see also Plaintiff’s Exhibits 1-4.

24. On or about November 13, 2017, DiCowden submitted any and all documents 

requested by and through Request #3 to PNC via email correspondence to Ed R. at 

Ed.R@pnc.com (“Submission #4”). A true and accurate copy of the successful email 

transmission is attached as Plaintiff’s Exhibit 9.

25. Unable to confirmat Ed. R’s receipt of Submission #4, DiCowden resubmitted 

Submission #4 on or about November 16, 2017, via email correspondence to Ed.R@pnc.com. 

See Id.

26. PNC sent email correspondence on or about November 17, 2017 acknowledging 

Submission #4. A true and accurate copy of such correspondence is attached as Plaintiff’s 

Exhibit 10. 

27. On or about November 20, 2017, Ed R. of PNC sent correspondence to 

DiCowden, stating that DiCowden needed to submit additional documentation to proceed with 

the loss mitigation process (“Request #4”). 

28. On November 20, 2017, DiCowden promptly submitted any and all documents 

requested by and through Request #4 to PNC via email correspondence to Ed R. of PNC at 

Ed.R@pnc.com (“Submission #5”). 

29. On or about December 1, 2017, PNC sent correspondence to DiCowden stating 

that: 

We have completed our review of your hardship assistance request 

however your assignee or loan owner, CHRISTIANA TRUST, A 

DIVISION OF WILMINGTON, FSB AS TRUSTEE FOR 

KNOXVILLE 2012 TRUST, cannot approve your request for 

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assistance for the:

● Modification (1) because you have insufficient income to 

afford a modified mortgage payment and pay required taxes, 

insurance and other related property expenses...

We have completed our review of your hardship assistance request. 

However, we cannot approve your request for assistance for the:

● 12-Month Repayment Plan because insufficient income; can 

not [sic] repay delinquency.

● Extended 24 Month Repayment Plan because insufficient 

income; can not [sic] repay delinquency.

● Full Payment Forbearance Plan because documentation has 

been received too close to the scheduled foreclosure sale date 

and does not allow sufficient time for review.

● Reduced Payment Forbearance Plan because documentation 

has been received too close to the scheduled foreclosure sale 

date and does not allow sufficient time for review.

● Suspended Payment Forbearance Plan because documentation 

has been received too close to the scheduled foreclosure sale 

date and does not allow sufficient time for review...

(emphasis added) (the “Denial”). A true and accurate copy of the Denial is attached as Plaintiffs’ 

Exhibit 11.

30. Despite refusing to review DiCowden for three (3) home retention options due to 

the scheduled foreclosure date being too close, on or before December 4, 2017, PNC agreed to 

postpone the Trustee’s Sale scheduled for December 6, 2017 in order to consider DiCowden for 

non-retention loss mitigation options. A true and accurate copy of such correspondence is 

attached as Plaintiff’s Exhibit 12.

31. Subsequently, despite PNC having failed to review DiCowden for any and all loss 

mitigation options offered by her investor, PNC allowed the owner of her Loan to initiate the 

foreclosure process by scheduling a Trustee’s Sale of her Home for February 6, 2018 and 

recording notice of such on or before January 9, 2018 with the Clerk’s Office of Circuit Court of 

the City of Alexandria, Virginia (the “Second Foreclosure”). A true and accurate copy of 

correspondence sent by Foreclosure Counsel regarding the Second Foreclosure is attached as 

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Plaintiff’s Exhibit 13; see also Plaintiff’s Exhibits 1-3 and 12

32. Left with no other option to save her Home, on or about February 2, 2018 

DiCowden filed for bankruptcy (the “Bankruptcy”). A printout of the online docket for the 

Bankruptcy is attached as Plaintiff’s Exhibit 14.

33. DiCowden remitted payment for attorneys’ fees and costs of more than Four 

Thousand Five Hundred Dollars ($4,500.00) in order to file the Bankruptcy in order to save the 

Home from being sold on February 6, 2018. A true and accurate copy of the Disclosure of 

Compensation for Attorney for Debtor(s) filed in the Bankruptcy is attached as Plaintiff’s Exhibit 

15.

34. On or before February 6, 2017, the Trustee’s Sale scheduled for February 6, 2018 

was cancelled due to the Bankruptcy.

35. On or about February 19, 2017, Aldrige Pite, counsel for PNC, sent 

correspondence to DiCowden advising that there may be loss mitigation options available to her. 

A true and accurate copy of this correspondence is attached as Plaintiff’s Exhibit 16.

36. On March 12, 2018, the Bankruptcy was dismissed. A true and accurate copy of 

the Order of Dismissal is attached as Plaintiff’s Exhibit 17.

37. Subsequently, despite PNC having failed to review DiCowden for any and all loss 

mitigation options offered by her investor, PNC allowed the owner of her Loan to initiate the 

foreclosure process by scheduling a Trustee’s Sale for May 16, 2018 and recording notice of 

such on or before April 11, 2018 with the Clerk’s Office of Circuit Court of the City of 

Alexandria, Virginia (the “Third Foreclosure”). A true and accurate copy of correspondence sent 

by Foreclosure Counsel regarding the Third Foreclosure is attached as Plaintiff’s Exhibit 18; see 

also, Plaintiff’s Exhibits 1-4 and 11. 

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38. As time passed, PNC made clear through their inaction after the cancellation of 

the Initial Foreclosure and the Second Foreclosure that they had no intention of reviewing 

DiCowden’s loss mitigation application for the loss mitigation options it had failed to consider 

her for due to the pending sheriff sale. Therefore, on or about April 17, 2018, DiCowden, by and 

through counsel, submitted a second loss mitigation application to PNC (“Submission #6”) via 

facsimile transmission. A true and accurate copy of the facsimile cover page for Submission #6, 

outlining the documents constituting Submission #6, is attached as Plaintiff’s Exhibit 19. 

DAMAGE TO DICOWDEN

39. Throughout this entire ordeal, DiCowden has simply wanted to save her Home, to 

responsibly resume her mortgage payments, and begin the lengthy process of rehabilitating her 

credit.

40. Due to PNC’s conduct, DiCowden has lived with anxiety and stress caused by a 

fear that she would lose the Home to foreclosure without ever receiving a review of her loss 

mitigation application for all available loss mitigation options. 

41. PNC’s actions have caused DiCowden to: (1) Spend significant time gathering 

duplicative documents and filling out duplicative forms in order to be considered for loss 

mitigation; (2) spend money on paper, postage and legal fees to compile and send such 

submissions to PNC; and, (3) incur legal fees and expenses to file bankruptcy in her effort to 

save her Home from foreclosure. See Plaintiff’s Exhibits 14-15.

PATTERN AND PRACTICE OF RESPA

42. At the time of the filing of this Complaint, PNC has had at least Two Thousand 

and Thirty-Eight (2,038) consumer complaints lodged against them nationally, specifically 

concerning the issue identified on the CFPB’s consumer complaint database as “loan 

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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/).

43. Plaintiff has reviewed the CFPB’s consumer complaint database and has 

identified other alleged RESPA violations by PNC against other borrowers. In particular, 

Plaintiff has reviewed the fifteen (15) consumer complaints attached hereto and identified as 

Plaintiffs’ Group Exhibit 20. The date, details and a narrative disclosed by the consumer is set 

forth in each complaint. The complaints evidence conduct which demonstrates that PNC has 

engaged in a pattern and practice of violating RESPA with respect to other borrowers.

COUNT ONE

VIOLATION OF 12 C.F.R. § 1024.41(f)

(Failure to prevent Foreclosure Counsel from scheduling Initial Foreclosure)

44. DiCowden restates and incorporates herein all of their statements and allegations 

contained in paragraphs 1 through 43 in their entirety, as if fully rewritten. 

45. 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))”.

46. 12 C.F.R. §1024.41(b)(2) provides that if a servicer receives a loss mitigation 

application forty-five (45) days or more before a foreclosure sale that the servicer must promptly 

review the application to determine whether the application is complete and notify the borrower 

in writing within five (5) days, excluding public holidays, Saturdays, and Sundays, whether the 

application is complete.

47. Comment 1 of the Official CFPB Interpretations to 12 C.F.R. §1024.41(b)(3) 

provides that “[i]f no foreclosure sale has been scheduled as of the date that a complete loss 

mitigation application is received, the application is considered to have been received more than 

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90 days before any foreclosure sale.”

48. 12 C.F.R. §1024.41(c)(2)(iv) provides that “[i]f a borrower submits all the 

missing documents and information as stated in the notice required pursuant to 12 C.F.R. 

§1024.41(b)(2)(i)(B), or no additional information is requested in such notice, the application 

shall be considered facially complete.”

49. Comment 1 of the Official CFPB Interpretations to 12 C.F.R. §1024.41(c)(2)(iv) 

provides that 12 C.F.R. §1024.41(c)(2)(iv) “requires a servicer to treat a facially complete 

application as complete for the purposes of paragraphs (f)(2) and (g) until the borrower has been 

given a reasonable opportunity to complete the application.”

50. 12 C.F.R. §1024.41(f)(2) states that “if a borrower submits a complete loss 

mitigation application during the pre-foreclosure review period set forth in paragraph (f)(1) of 

this section or before a servicer has made the first notice or filing required by applicable law for 

any judicial or non-judicial foreclosure process, a servicer shall not make the first notice or filing 

required by applicable law for any judicial or non-judicial foreclosure process unless: (i) the 

servicer has sent written notice pursuant to 12 C.F.R. §1024.41(c)(1)(ii), stating that the 

borrower is not eligible for any loss mitigation options and the borrower has not requested an 

appeal, or the borrower’s appeal has been denied; (ii) the borrower rejects all loss mitigation 

options offered by the servicer; or, (iii) the borrower fails to perform under an agreement on a 

loss mitigation option” (emphasis added).

51. Comment 1 of the Official CFPB Interpretations to 12 C.F.R. §1024.41(f)(1)(i) 

provides that:

Where foreclosure procedure requires a court action or proceeding, 

a document is considered the first notice or filing if it is the earliest 

document required to be filed with a court or other judicial body to 

commence the action or proceeding (e.g., a complaint, petition, 

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order to docket, or notice of hearing). 

52. At the time the loss mitigation application at issue was facially complete, there 

was no sheriff’s sale scheduled.

53. Submission #1 constituted a loss mitigation application pursuant to 12 C.F.R. § 

1024.41. See Plaintiff’s Exhibit 1.

54. On or about August 30, 2017, PNC sent DiCowden Request #1. See Plaintiff’s 

Exhibit 2.

55. On September 29, 2017, DiCowden provided Submission #2 to PNC via email to 

Ed R. of PNC at Ed.R@pnc.com. See Plaintiff’s Exhibits 3-4. DiCowden was required to submit 

the requested documents no later than September 29, 2017 pursuant to Request #1. See 

Plaintiff’s Exhibit 2.

56. Submission #2 contained any and all documents requested by and through 

Request #1. See Plaintiff’s Exhibits 2-3. Accordingly, PNC was in possession of a facially 

complete loss mitigation application on September 29, 2017. See Id.

57. Despite PNC being in possession of a facially complete loss mitigation 

application, Foreclosure Counsel scheduled the Initial Foreclosure on or about November 2, 

2017. See Plaintiff’s Exhibit 7.

58. On or before November 2, 2017, PNC had not considered DiCowden’s eligibility 

for any and all loss mitigation options made available to her by his investor as required under 12 

C.F.R. § 1024.41(c).

59. PNC’s actions in allowing Foreclosure Counsel to schedule the Initial Foreclosure 

resulted in violation of 12 C.F.R. § 1024.41(b)(9) which each constitute a clear, separate, and 

distinct violation of 12 C.F.R. § 1024.41(f).

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60. PNC’s actions are part of a pattern and practice of behavior in conscious disregard 

for Stephens’s rights.

61. In addition to the damages outlined, supra, PNC’s violation of 12 C.F.R. § 

1024.41(f) directly and proximately caused DiCowden to incur actual damages including but not 

limited to attorneys’ fees. See Plaintiff’s Exhibit 17.

62. As a result of PNC’s actions, PNC is liable to DiCowden for actual damages, 

statutory damages, costs, and attorneys’ fees.

COUNT TWO

VIOLATION OF 12 C.F.R. § 1024.41(g)

(Failure to prevent Foreclosure Counsel from scheduling the Second Foreclosure and the 

Third Foreclosure)

63. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 1 through 43 in their entirety, as if fully rewritten herein

64. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 45 through 49 in their entirety, as if fully rewritten herein.

65. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 52 through 56 in their entirety, as if fully rewritten herein.

66. 12 C.F.R. § 1024.41(c)(1) provides that “if a servicer receives a complete loss 

mitigation application more than 37 days before a foreclosure sale, then...a servicer shall... 

[e]valuate the borrower for all loss mitigation options available to the borrower.”

67. 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 

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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.”

68. 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.”

69. PNC discovered additional documents were required for the DiCowden’s pending 

loss mitigation application several times over the next two (2) months. DiCowden promptly 

submitted all requested documentation to PNC upon receipt of the request. See Plaintiff’s 

Exhibits 6-7 and 9-10.

70. On or about December 1, 2017, PNC sent DiCowden the Denial. See Plaintiff’s 

Exhibit 11.

71. Unfortunately, PNC refused to consider DiCowden’s eligibility for three (3) loss 

mitigation options stating in the Denial that they were unable to review DiCowden for such loss 

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mitigation options “because documentation has been received too close to the scheduled 

foreclosure sale date and does not allow sufficient time for review.” See Plaintiff’s Exhibit 11.

72. DiCowden’s loss mitigation application was considered facially complete on 

September 29, 2017. Since no sheriff’s sale had been scheduled as of September 29, 2017, PNC 

was required to treat DiCowden’s loss mitigation application as having been received ninety (90) 

days prior to a scheduled sheriff sale pursuant to 12 C.F.R. §1024.41(c)(2)(iv).

73. PNC was required to review DiCowden for all loss mitigation options offered by 

her investor pursuant to 12 C.F.R. § 1024.41(c)(1)(i). The Denial explicitly states that PNC did 

not consider DiCowden for three loss mitigation options. See Id.

74. Despite the above, on or before January 9, 2018, and on or before April 11, 2018, 

respectively, Foreclosure Counsel scheduled the Second Foreclosure and the Third Foreclosure, 

respectively. See Plaintiff’s Exhibits 13 and 18.

75. On or before January 9, 2018, and on or before April 11, 2018, respectively, PNC 

had not considered DiCowden’s eligibility for any and all loss mitigation options made available 

to her by the investor of the Loan as required under 12 C.F.R. § 1024.41(c).

76. PNC’s actions in allowing Foreclosure Counsel to schedule the Second 

Foreclosure and the Third Foreclosure resulted in violations of 12 C.F.R. § 1024.41(b)(10) which 

each respectively constitute a clear, separate, and distinct violation of 12 C.F.R. § 1024.41(g).

77. PNC’s actions are part of a pattern and practice of behavior in conscious disregard 

for DiCowden’s rights.

78. In addition to the damages outlined, supra, PNC’s violation of 12 C.F.R. § 

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

limited to attorneys’ fees. See Plaintiff’s Exhibit 17.

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79. As a result of PNC’s actions, PNC is liable to DiCowden for actual damages, 

statutory damages, costs, and attorneys’ fees.

COUNT THREE

VIOLATION OF 12 C.F.R. § 1024.41(c)

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

80. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 1 through 43 in their entirety, as if fully rewritten herein.

81. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 52 through 56 in their entirety, as if fully rewritten herein.

82. 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))”.

83. 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.”

84. 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.

85. As of September 29, 2017, PNC was in possession of a complete loss mitigation 

application by and through their receipt of Submission #2 and therefore were obligated to review 

such application for all available loss mitigation options in accordance with the requirements of 

12 C.F.R. § 1024.41(c)(1). See Plaintiff’s Exhibits 1-4.

86. Unfortunately, pursuant to the Denial, PNC refused to consider DiCowden’s 

eligibility for three (3) loss mitigation options stating that they were unable to review DiCowden 

for these loss mitigation options “because documentation has been received too close to the 

scheduled foreclosure sale date and does not allow sufficient time for review.” See Id.

87. PNC’s failure to review DiCowden for three (3) separate loss mitigation options 

offered to her by the investor of the Loan constitutes a clear, separate, and distinct violation of 12 

C.F.R. § 1024.41(c). 

88. PNC’s actions are part of a pattern and practice of behavior in conscious disregard 

for DiCowden’s rights.

89. In addition to the damages outlined, supra, PNC’s violation of 12 C.F.R. § 

1024.41(c)(ii) directly and proximately caused DiCowden to incur actual damages including but 

not limited to attorneys’ fees. See Plaintiff’s Exhibits 15-16.

90. As a result of PNC’s actions, PNC is liable to DiCowden for actual damages, 

statutory damages, costs, and attorneys’ fees. 

COUNT FOUR

VIOLATION OF 12 C.F.R. § 1024.41(h)

(Failure to provide the borrower an opportunity to appeal the denial of eligibility for an 

available loss mitigation option)

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91. DiCowden restates and incorporates herein each of their statements and 

allegations contained in paragraphs 1 through 43 in their entirety, as if fully rewritten herein.

92. 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))”.

93. 12 C.F.R. § 1024.41(c)(1) provides that “[t]he servicer shall include in this 

notice...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.” 

94. Comment 3 of the Official Interpretations of the CFPB to 12 C.F.R. § 1024.41(d) 

provides that the “[d]etermination not to offer a loan modification option constitutes a denial. A 

servicer's determination not to offer a borrower a loan modification available to the borrower 

constitutes a denial of the borrower for that loan modification option, notwithstanding whether a 

servicer offers a borrower a different loan modification option or other loss mitigation option.”

95. 12 C.F.R. § 1024.41(h)(1) provides that “[i]f a servicer receives a complete loss 

mitigation application 90 days or more before a foreclosure sale or during the period set forth in 

paragraph (f) of this section, a servicer shall permit a borrower to appeal the servicer's 

determination to deny a borrower's loss mitigation application for any trial or permanent loan 

modification program available to the borrower.”

96. The Denial did not notify DiCowden of her right to appeal the denial of a loss 

mitigation option pursuant to 12 C.F.R. § 1024.41(c)(1)(ii). See Plaintiff’s Exhibit 13.

97. PNC’s failure to provide a notice to DiCowden regarding her right to appeal the 

Denial constitutes a clear, separate, and distinct violation of 12 C.F.R. § 1024.41(h). 

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98. PNC’s actions are part of a pattern and practice of behavior in conscious disregard 

for Shepherd’s rights.

99. In addition to the damages outlined, supra, PNC’s violation of 12 C.F.R. § 

1024.41(h) directly and proximately caused DiCowden to incur actual damages including but not 

limited to attorneys’ fees. See Plaintiff’s Exhibits 15-16.

100. As a result of PNC’s actions, PNC is liable to DiCowden for actual damages, 

statutory damages, costs, and attorneys’ fees. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Marie A. DiCowden prays that this Court enter its order 

granting judgment in her favor as follows:

(A)A finding that PNC committed each of the violations of 12 C.F.R. § 1024.41 alleged 

in Counts One through Four;

(B) For actual damages in an amount to be determined at trial as to each and every count;

(C) For costs, and reasonable attorneys’ fees;

(D)For statutory damages against PNC 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 Four; and,

(E) Such other relief which this Court may deem appropriate.

Respectfully submitted,

/s/ Marc E. Dann

Marc E. Dann (0039425)

Daniel M. Solar (0085632)

Brian D. Flick (0081605)

DANNLAW 

P.O. Box 6031040

Cleveland, OH 44103

Telephone: (216) 373-0539

Case: 3:18-cv-00148-WHR Doc #: 1 Filed: 05/04/18 Page: 18 of 19 PAGEID #: 18
19

Facsimile: (216) 373-0536

notices@dannlaw.com

Counsel for Plaintiff Marie A. DiCowden

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)

Daniel M. Solar (0085632)

Brian D. Flick (0081605)

DANNLAW 

P.O. Box 6031040

Cleveland, OH 44103

Telephone: (216) 373-0539

Facsimile: (216) 373-0536

notices@dannlaw.com

Counsel for Plaintiff Marie A. DiCowden

Case: 3:18-cv-00148-WHR Doc #: 1 Filed: 05/04/18 Page: 19 of 19 PAGEID #: 19