George Gingo FBN 875933 James E. Orth, Jr.

FBN 75941 2215 Garden Street Suite B Titusville, FL 32796 (321) 264-9624 (Office) (866) 311-9573 (Fax) jamesorthlaw@gmail.com gingo.george@gmail.com

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA AT ORLANDO

GARY BONNICI; KATHERINE BONNICI; on behalf of themselves and all others similarly situated, PLAINTIFFS, v. U.S. BANK NATIONAL ASSOCIATION; BANK OF AMERICA, NATIONAL ASSOCIATION; TERRY PALMITER; DOE 1, ALSO KNOWN AS MORRIS|HARDWICK|SCHNEIDER; DOE 2; DOE 3; AND DOE 4, DEFENDANTS. _________________________________________/

Case #:

VERIFIED COMPLAINT - CLASS ACTION 15 U.S.C. 1692, et. seq.

1 VERIFIED COMPLAINT

Plaintiffs, GARY BONNICI and KATHERINE BONNICI, sue defendants U.S. BANK NATIONAL ASSOCIATION; BANK OF AMERICA, NATIONAL ASSOCIATION; TERRY PALMITER; DOE 1, ALSO KNOWN AS MORRIS|HARDWICK|SCHNEIDER; DOE 2; DOE 3; AND DOE 4, and for their complaint allege: I JURY TRIAL DEMAND 1. Plaintiffs demand a jury trial. II JURISDICTION The jurisdiction of this Court is pursuant to 28 U.S.C. 1331 (federal question), 15 U.S.C. 1692 (d)(fair debt collection practices act) and 28 USC 1367 (pendent state claims). This is an action for money damages.

2.

3.

III VENUE Venue is pursuant to 28 U.S.C. 1391(b)(2), (c) and (d). Venue lies in the Middle District of Florida at Orlando as the claims arose from acts of the Defendants perpetrated therein.

4.

IV NATURE OF THE ACTION This is a complaint for money damages. Defendant Bank of America, National Association (hereinafter Bank of America) was the agent and mortgage loan servicer of Defendant US Bank, National Association (hereinafter US Bank) for the purpose of collecting a mortgage loan debt allegedly owed by Plaintiffs. Defendant Doe 1, also

2 Verified Complaint

known as Morris|Hardwick|Schneider (hereinafter Morris|Hardwick|Schneider), are agents and allegedly counsel for US Bank. Defendant Terry Palmiter is an agent of Bank of America, US Bank and Morris|Hardwick|Schneider. US Bank, through Bank of America, filed a foreclosure lawsuit against Plaintiffs in the County of Brevard, State of Florida. US Bank and each of its agents knew that the Plaintiffs were represented by counsel in the foreclosure case, yet they disregarded the Plaintiffs legal representation and communicated directly with the Plaintiffs via telephone calls and by directly sending misleading dunning letters to the Plaintiffs in an effort to collect a debt, contrary to the form of 15 U.S.C. Section 1692c(a)(2) and Fla. Stat. Section 559.72(18).

5.

V PARTIES The Plaintiffs, Gary Bonnici and Katherine Bonnici (hereinafter Plaintiffs or the Bonnicis) are residents and citizens of Brevard County, Florida. They reside in their homesteaded principal residence located at 2380 Devonswood Road, Titusville, Florida 32780.

6.

Defendant, U.S. Bank is a National Banking Association. Its primary place of business is Minneapolis, Minnesota.

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7.

Defendant, Bank of America is a National Banking Association. Its primary place of business is Charlotte, North Carolina.

8.

Defendant Terry Palmiter is a resident of Brevard County, Florida. He is a State of Florida licensed Real Estate Sales Associate (license number SL3119456).

9.

Defendant Morris|Hardwick|Schneider, as DOE 1, is an unknown type of entity claiming to be Attorneys at Law that may or may not actually be Florida licensed attorneys with offices located at 5110 Eisenhower Blvd., Suite 120, Tampa, Florida 33634, and/or Temecula, California and/or at Baltimore, Maryland. Its true name is not now known.

10.

Defendants DOE 2, DOE 3 and DOE 4 are the unknown principals of Defendant Morris| Hardwick|Schneider. On information and belief, DOE 2 is Morris, DOE 3 is Hardwick and DOE 4 is Schneider. On information and belief, DOES 2, 3 and 4 maintain offices located at 5110 Eisenhower Blvd., Suite 120, Tampa, Florida 33634. These DOES will be voluntarily dismissed/stricken if Doe 1 is determined to be a legal entity. VI CLASS ACTION ALLEGATIONS The Plaintiffs bring this action on behalf of themselves and all those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. There are two defined classes. Class A is addressed in Count 2 and Class B is addressed in Count 3.
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11.

12.

Class A is defined as: All residents of the State of Florida who are in default upon their Florida real estate mortgage loan which was subject to dunning letter collection activity by Defendant Morris|Hardwick|Schneider within the past 365 days.

13.

Class B is defined as: All residents of the State of Florida who are in default upon their Florida real estate mortgage loan who received unsolicited letters inviting a short sale from Defendant Bank of America and its agents within the past 365 days.

14.

Both classes meet all the requirements of Rule 23(a). Although the precise size of the classes cannot be determined at this time, statistical evidence of foreclosures shows that the class is so numerous that joinder of all members is impracticable.

15.

In 2010 the US Census Bureau reported that the State of Florida had the highest number of foreclosures in the country and that approximately 17.5% of all properties (1.6 million homes) were vacant. (http://www.census.gov/prod/cen2010/briefs/c2010br-07.pdf) Foreclosure cases begin with default and debt collection with the result that there are more homes that go into default than go into foreclosure. Bank of America is the second largest bank in the U.S. (http://www.ffiec.gov/nicpubweb/nicweb/Top50Form.aspx) Defendant Bank of America hired Defendant Morris|Hardwick|Schneider to conduct collection
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activity for it in Florida, giving Morris|Hardwick|Schneider the lionss share of defaulted mortgage loans to collect. Morris|Hardwick|Schneiders collection activity includes sending form dunning letters to consumers. Bank of America encourages and rewards realtors with financial gain when they successfully close a short sale. (https:// realestateagent.bankofamerica.com/default.aspx) That process begins with the oral and written solicitation of homeowners in default by licensed real estate sales agents and brokers. These solicitations do not include notice that these persons are debt collectors and that any information obtained will be used for that purpose.

16.

There are questions of law or fact common to Class A, including: (1) whether Defendant Morris|Hardwick|Schneider is an attorney licensed in the State of Florida; (2) whether the dunning letters from Defendant Morris|Hardwick|Schneider were required to have the name or signature of at least one Florida licensed attorney thereon, or in the absence of a name or signature of an attorney, a disclaimer stating that the letter had not been reviewed by an attorney; and, (3) whether Morris|Hardwick|Schneider is the true name of Defendant Morris|Hardwick|Schneider.

17.

There are questions of law or fact common to Class B, including: (1) whether a licensed real estate sales person or broker is an agent of Bank of America for purposes of the agent making unsolicited communications with homeowners in default on their real estate
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mortgages which are being collected by Bank of America; (2) whether unsolicited written communications directed to homeowners in default on their mortgage loan from Bank of America and its agents regarding short sales is debt collection activity requiring notice that the person is a debt collector attempting to collect a debt and that any information obtained will be used for that purpose; (3) whether unsolicited oral cold calls from Bank of America and its agents for the purpose of discussing a short sale is debt collection activity requiring notice that the person is a debt collector attempting to collect a debt and that any information obtained will be used for that purpose.

18.

Plaintiffs claims are typical of the claims of Class A because Defendants policy and practice of using boilerplate forms to enforce collection applies with equal force to the proposed class.

19.

Plaintiffs claims are typical of the claims of Class B because Defendants policy and practice of giving remuneration to licensed real estate sales agents and brokers who conclude short sales encourages those individuals to solicit information from homeowners in default who have loans being collected upon by Bank of America. This results in collection activity being applied with equal force to the proposed class.

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20.

Plaintiffs will fairly and adequately represent the interests of all members of the proposed class because they seek relief on behalf of the classes as a whole and have no interests antagonistic to other members of the class. Plaintiffs are represented by counsel who have expertise in consumer claims and foreclosure litigation.

21.

Defendants have acted and will act on grounds generally applicable to the classes in creating and implementing a policy and practice that encourages misleading communications in debt collection activity, thereby making appropriate final relief with respect to the classes as a whole. VI EXHIBITS TO COMPLAINT There is filed in this matter a separate document entitled Exhibits to Complaint. The exhibits therein are incorporated and made a part hereof by way of reference as Exh. __.

22.

23.

VII GENERAL FACTS The Defendants are debt collectors within the meaning of 15 U.S.C. 1601 et. seq., and in particular, 15 U.S.C. Section 1692a(6) and Fla. Stat. 559.55(6) and Fla. Stat. 559.551 (the Florida Consumer Collection Practices Act, or FCCPA) in that they used the U.S. Mails in a business whose primary purpose is the collection of debts.

8 Verified Complaint

24.

Defendant Morris|Hardwick|Schneider is a debt collector within the meaning of the FDCPA in that it uses a name other than its true name, to wit, Morris | Hardwick | Schneider ATTORNEYS AT LAW, in a business whose primary purpose is the collection of debts.

25.

On February 22, 2006, the Plaintiffs obtained a mortgage loan on their principal homesteaded residence from Pinnacle Direct Funding Corporation. (Exh. 1, Amended Foreclosure Complaint, Note, page 1; Also see Exh. 1, Mortgage, page 1 - Bates Numbers 4 and 8)

26.

On April 29, 2009, Defendant U.S. Bank National Association sued the Plaintiffs for foreclosure in the Circuit Court of Brevard County, Florida, in case number 2009CA-29154. Attorney Deanne Torres of the law office of David Stern was counsel of record for Defendant U.S. Bank National Association. Although the foreclosure lawsuit was in the name of Defendant US Bank, its mortgage loan servicer, Defendant Bank of America was actually paying for and prosecuting the action in the name of Defendant US Bank pursuant to Florida Rules of Civil Procedure 1.210(a).

27.

On September 17, 2010, the Defendants, U.S. Bank and Bank of America filed their Amended Complaint for foreclosure wherein Defendant US Bank stated that the
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mortgage loan went into default on August 1, 2008. (Exh. 1, page 1, paragraph 7 - Bates Number 1) US Bank also stated that it obtained the mortgage loan on April 6, 2009. (Exh. 1, page 1, paragraph 4 - Bates Number 1; Also see Exh. 1, Bates Number 24, Assignment of Mortgage) US Bank had in fact obtained the mortgage loan in order to collect upon the defaulted sum due.

28.

Though the original promissory note did not carry an indorsement from Pinnacle Direct Funding Corporation, Defendant US Bank claimed ownership of the mortgage loan by way of an Assignment of Mortgage from the original mortgagee, Mortgage Electronic Registration Systems, Inc. (hereinafter, MERS). (Exh. 1, page 1, paragraph 4 - Bates Number 1; Also see Exh. 1, Bates Number 24, Assignment of Mortgage) Contrarily, as late as September 28, 2010, MERS was representing to the public via the MERS SERVICER ID website that the owner of the mortgage loan was not Defendant US Bank, but instead was Sovereign Bank (PA). (Exh. 2, Bates Number 25) The Amended Foreclosure Complaint did not include a claim or document to the effect that Sovereign Bank (PA) had transferred its interest in the mortgage loan to Defendant US Bank.

29.

On October 6, 2010, the Bonnicis, by and through their retained counsel - George Gingo and James E. Orth, Jr. - filed their motion to dismiss the Amended Foreclosure

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Complaint.

30.

On March 21, 2011, the Bonnicis set their Motion to Dismiss the foreclosure complaint and served the notice upon counsel for Defendant US Bank and Bank of America, The Law Office of David J. Stern.

31.

On March 23, 2011, the law office of Kass Shuler P.A. filed its Notice of Appearance as counsel for U.S. Bank.

32.

On April 1, 2011, the Circuit Court dismissed the foreclosure complaint with leave to amend. The amended foreclosure complaint is attached hereto as Exhibit 1. (Exh. 1 Bates Numbers 1 - 24)

33.

On January 13, 2012, the law office of Kass Shuler P.A. filed their Motion to Withdraw As Attorney Of Record And For Continuance Of Any Hearings.

34.

On January 24, 2012, the Bonnicis, by and through their retained counsel - George Gingo and James E. Orth, Jr. - filed an Opposition To Kass Shuler P.A.s Motion To Withdraw As Attorney Of Record For Plaintiff And For Continuance of Any Hearings.

11 VERIFIED COMPLAINT

35.

On February 20, 2012, the Circuit Court held a hearing on Gary Bonnici and Katherine Bonnicis Motion to Dismiss the Action wherein the Court dismissed the foreclosure action. (Exh. 3 - Bates Numbers 26 - 28) US Banks counsel appeared telephonically and sought to withdraw representation of US Bank, counsel for US Bank. After the Court dismissed the action, Circuit Judge Jeffrey Mahl granted Kass Shuler P.A.s motion to withdraw from the case. During the course of the hearing, Kass Shuler P.A. provided an address for service upon US Bank at 425 Walnut Street, Cincinatti, Ohio 45202 and for US Bank, in care of Bank of America, at 400 National Way, Simi Valley, CA 93065. Because Defendant Bank of America was the mortgage loan servicer for Defendant US Bank, Bank of Americas address was necessary for service upon US Bank. (Exh. 4 Bates Numbers 29)

36.

On March 12, 2012, prior to the Clerks administrative closure of the case, the Bonnicis counsel filed a motion for attorney fees and costs thereby preventing closure of the lawsuit. (Exh. 5 - Bates Numbers 30 - 31) The Certificate of Service of the motion for fees and costs demonstrates that Defendant US Bank was served at 425 Walnut Street, Cincinatti, Ohio 45202 and at 400 National Way, Simi alley, CA 93065 through its agent, Defendant Bank of America. (Exh. 5 - Bates Number 30 - 31)

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37.

On March 29, 2012, Gary Bonnici and Katherine Bonnicis counsel, George Gingo and James E. Orth, Jr., set their motion for fees and costs for April 9, 2012 at 2:45 pm before Circuit Judge Mahl. (Exh. 6 - Bates Numbers 32 - 33) The Certificate of Service of the notice of hearing demonstrates that Defendant US Bank was served at 425 Walnut Street, Cincinatti, Ohio 45202 and at 400 National Way, Simi alley, CA 93065 through its agent, Defendant Bank of America. (Exh. 6 - Bates Numbers 32 - 33)

38.

Due to a calendaring problem, the hearing set for April 9, 2012 was not held.

39.

On or about May 2, 2012, Gary Bonnici and Katherine Bonnici, by and through their counsel - George Gingo and James E. Orth, Jr. - re-set the hearing on their Motion for Attorneys Fees and Costs for June 29, 2012 at 8:30 am before Circuit Judge Jeffrey Mahl. This document was served upon U.S. Bank and Bank of America as evidenced by the addresses on Certificate of Service.

40.

On June 18, 2012, while the Circuit Court foreclosure case remained pending in order to determine whether Gary Bonnici and Katherine Bonnici were entitled to attorneys fees and costs, U.S. Bank and Bank of America by and through Defendant Morris|Hardwick| Schneider delivered two dunning letters via certified mail to plaintiff Gary Bonnici and one dunning letter to plaintiff Katherine Bonnici (Exh. 7 - Bates Numbers 34 - 43) These
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dunning letters related to the exact same debt that is the subject of the foreclosure case. If DOES 1 - 4 are attorneys, then these letters are a violation of Rules of Professional Conduct 4-4.2 (Communication with person represented by counsel). If DOES 1 - 4 are not attorneys, then these letters are a violation of Rules of Professional Conduct 4-5.5 (Unauthorized Practice of Law).

41.

The three dunning letters lead the reader to believe that they were sent from an attorney. The caption of the three dunning letters states Morris|Hardwick|Schneider Attorneys At Law and the closing of the letter states Morris|Hardwick|Schneider. There are no other names on the letters, no attorney names, no attorney signatures and no disclaimers stating that the letters had not been reviewed by an attorney. (Exh. 7 - Bates Numbers 34 - 43)

42.

The dunning letters lead a reasonable reader to believe that they were sent from a State of Florida licensed attorney. On information and belief derived from an internet search at the State Bar of Florida and at the Florida Department of State Division of Corporations search websites at http://www.flabar.org and http://www.sunbiz.org/, respectively, Morris| Hardwick|Schneider is not a State of Florida licensed attorney, it is not a State of Florida registered fictitious name, it is not a Florida registered corporation and it is not a Florida State Bar approved interstate partnership. (Exh. 8 - Bates Numbers 44 - 56) Although there is a Florida foreign registered LLC called Morris, Hardwick, Schneider, LLC
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domesticated in the State of Georgia, that entity does not reference a Florida office address according to the Florida Department of State Division of Corporations. (Exh. 8 - Bates Numbers 44 - 56) There is also a law firm partnership out of the State of Georgia by the name of Morris|Hardwick|Schneider, but that entity represents on its website that it does not have offices in California, contrary to the representation in the dunning letters Plaintiffs received. (Exh. 8 - Bates Numbers 44 - 56) Plaintiffs conclusion at this time is that none of these entities is the same as DOE 1 - Morris|Hardwick|Schneider.

43.

The dunning letters state that Defendant Morris|Hardwick|Schneider has offices in three different states - Florida, California and Maryland. The only names on the dunning letters are Morris, Hardwick and Schneider - DOES 2, 3 and 4. The dunning letters lead the reader to believe that Morris, Hardwick and Schneider are each Florida licensed attorneys. On information and belief, DOES 2, 3 and 4 are not Florida licensed attorneys, but instead are attorneys licensed by the State of Georgia. The dunning letters do not state at the top of the letterhead the names of the attorneys and their various jurisdictions, in violation of Rule of Professional Conduct, 4-7.10 and 4-7.2 and Opinion 74-48, Professional Ethics of the Florida Bar. The Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978). The absence of the names and jurisdictions of the attorneys on the letterhead is misleading as a reasonable reader is lead to believe that DOES 2, 3 and 4 are Florida licensed attorneys as Morris| Hardwick|Schneider are the only names on the dunning letters.
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44.

On June 18, 2012, at 11:22 a.m., Gary Bonnici received a telephone call on his cell phone (321-362-1156) from Defendant Terry Palmiter. During this call, Defendant Palmiter stated that he was calling on behalf of attorneys Morris|Hardwick|Schneider and that he wanted Gary Bonnici to allow him to short sale the subject property. (Exh. 7, Bates Number 35 top of page) During this call, Terry Palmiter did not advise Gary Bonnici that he was a debt collector, nor did he advise that he was attempting to collect a debt and that any information obtained will be used for that purpose.

45.

Gary Bonnici did not authorize any defendant, including Defendant Palmiter, to call his cell phone nor was there an established relationship between Gary Bonnici and any Defendant, including Defendant Palmiter.

46.

On June 20, 2012, Gary Bonnici received a letter in the mail from Defendant Terry Palmiter. (Exh. 9 - Bates Numbers 57 - 63) On the top of the letter was a sticky note that stated Read & give to your attorney. This letter stated Your lender, Bank of America, has asked me to work with you for a Cooperative Short Sale. . . . I am working only at the specific request of Bank of America to reach out to you to deliver the contents of this program. Enclosed in the letter was a business card for Defendant Terry Palmiter as an agent of RE/MAX 2000 and a form from Defendant Bank of America seeking
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information from the Plaintiffs. Absent from this communication was the notice required by 15 USC 1692e(11) that the sales person or broker was acting as a debt collector, that he/ she is attempting to collect a debt and that any information obtained will be used for that purpose. Notably, the form stated the foreclosure process would proceed.

47.

On June 29, 2012, Plaintiff Katherine Bonnici received another form dunning letter from Morris|Hardwick|Schneider which was virtually identical as the previous dunning letters. (Exh. 10 - Bates Numbers 64 - 67)

VIII COUNTS COUNT 1 Violation of 15 U.S.C. 1692c(a)

48.

Paragraphs 1 through 47 are re-alleged as though fully set forth herein.

49.

This count is for violations of 15 U.S.C. 1692c(a). This count consists of plaintiffs Gary Bonnici and Katherine Bonnici and Defendants US Bank, Bank of America, Terry Palmiter, Morris|Hardwick|Schneider and DOES 2, 3 and 4 (if not dismissed/stricken per paragraph 10, above).

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50.

15 U.S.C. 1692c(a) states in part: Without 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 ... (2) 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 attorneys 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;

51.

Defendants US Bank and Bank of America knew that the Plaintiffs were represented by counsel on the subject debt before these defendants directed their agents - Defendants Morris|Hardwick|Schneider and Terry Palmiter - to contact the Plaintiffs.

52.

Before Defendant Terry Palmiter telephoned Plaintiff Gary Bonnici and before he sent a letter to the Bonnicis, Defendants US Bank and Bank of America advised Defendant Terry Palmiter that the Plaintiffs were represented by attorneys. Terry Palmiter admitted as much in his letter when he stated on the sticky note Read and give to your attorney.

53.

Before Defendant Morris|Hardwick|Schneider sent the dunning letters to the Plaintiffs, Defendants US Bank and Bank of America told Morris|Hardwick|Schneider that there was a foreclosure case on the same debt. Morris|Hardwick|Schneider, as attorneys at law, could have readily ascertained that Plaintiffs were represented by counsel and have

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obtained Plaintiffs counsels name, address and telephone number from the pleadings and documents in the court file, from the Florida State Bar website or from an internet search for Gingo & Orth.

54.

All defendants violated 15 U.S.C. 1692c(a)(2) by their contact with the Plaintiffs.

55.

Wherefore, the Plaintiffs demand (a) statutory damages pursuant to 15 U.S.C. 1692k(a); and, (b) fees and costs pursuant to 15 U.S.C. 1692k(a).

COUNT 2 Violation of 15 U.S.C. 1692e(3), 1692e(10) and 1692e(14) (Class A) 56. Paragraphs 1 through 47 are re-alleged as though fully set forth herein.

57.

This count is for violations of 15 U.S.C. 1692e(3), 1692e(10) and 1692e(14). This count consists of plaintiffs Gary Bonnici and Katherine Bonnici, on behalf of themselves and as representatives of a class of similarly situated people who received similar dunning letters in the past year from Defendant Morris|Hardwick|Schneider. The defendants in this count are US Bank, Bank of America, Morris|Hardwick|Schneider and DOES 2, 3 and 4 (if not dismissed/stricken per paragraph 10, above).

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58.

15 U.S.C. 1692e provides in part: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: .... (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. .... (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. .... (14) The use of any business, company, or organization name other than the true name of the debt collectors business, company or organization.

59.

The dunning letters from Defendant Morris|Hardwick|Schneider failed to contain the name and/or signature of a Florida licensed attorney and failed to contain a disclaimer that the letters had not been reviewed by an attorney. Wherefore, these letters falsely implied that they were sent from an attorney when, in fact they were not sent from an attorney in violation of 15 U.S.C. 1692e(3).

60.

The dunning letters from Defendant Morris|Hardwick|Schneider implied that Morris| Hardwick|Schneider was a Florida law firm. The letters only contained three names Morris, Hardwick and Schneider. On information and belief, none of these individuals are

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Florida licensed attorneys. These letters falsely implied that Morris|Hardwick|Schneider was a Florida licensed attorney(s), in violation of 15 U.S.C. 1692e(3).

61.

The dunning letters from Defendant Morris|Hardwick|Schneider falsely implied that Morris|Hardwick|Schneider, as a Florida licensed attorney, was going to file a foreclosure lawsuit against the Plaintiffs, in violation of 15 U.S.C. 1692e(10).

62.

On information and belief, the name used by Defendant Morris|Hardwick|Schneider in its dunning letters - Morris|Hardwick|Schneider is not a Florida licensed attorney, it is not a Florida registered fictitious name, it is not a Florida registered partnership name and it is not a Florida registered corporation. It is in fact a pseudo name for some other unknown entity or persons, in violation of 15 U.S.C. 1692e(14).

63.

Wherefore, the Plaintiffs demand (a) statutory damages pursuant to 15 U.S.C. 1692k(a); and, (b) fees and costs pursuant to 15 U.S.C. 1692k(a).

/// /// ///

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COUNT 3 Violation of 15 U.S.C. 1692e(11) (Class B) 64. Paragraphs 1 through 47 are re-alleged as though fully set forth herein.

65.

This count is for violations of 15 U.S.C. 1692e(11). This count consists of plaintiffs Gary Bonnici and Katherine Bonnici, on behalf of themselves and as representatives of a class of similarly situated people in foreclosure who received contact from licensed real estate sales persons in the past year from Defendant US Bank and Bank of America. The defendants in this count are US Bank, Bank of America, Terry Palmiter, Morris|Hardwick| Schneider and DOES 2, 3 and 4 (if not dismissed/stricken as per paragraph 10, above).

66.

15 U.S.C. 1692e provides: (11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

67.

Defendant US Bank and Bank of America have contacted an enormous number of Florida licensed real estate sales persons and brokers and engaged them in the act of assisting with the collection of US Bank and Bank of Americas mortgage loan debt under the

22 Verified Complaint

guise of the possibility of a short sale with remuneration available to the sales agent or broker upon successful short sale. To this end, US Bank and Bank of America arranged to provide Florida sales persons and brokers with forms that the sales person or broker are then directed to give to the homeowner who is behind on his mortgage loan payment. These forms require the homeowner to provide sensitive and confidential information to the real estate sales person or broker who then forwards it to Defendants US Bank and Bank of America. These forms do not indicate that the real estate sales person or broker is acting as a debt collector, or agent of a debt collector, nor do these forms state that this is an attempt to collect a debt and that any information obtained will be used for that purpose.

68.

The Defendant Terry Palmiter, a Florida licensed real estate sales person was acting as an agent of Defendant Morris|Hardwick|Palmiter when he made his initial oral communication by telephone to Plaintiff Gary Bonnici. In that communication, Terry Palmiter did not provide the notice that he was a debt collector attempting to collect a debt and that any information obtained would be used for that purpose, in violation of 15 U.S.C. 1692e(11).

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69.

Defendant Terry Palmiter admitted in the letter he sent to Plaintiff Gary Bonnici that he was acting as agent of Defendant Bank of America. In that letter he did not provide the required notice that he was a debt collector, in violation of 15 U.S.C. 1692e(11).

70.

Wherefore, the Plaintiffs demand (a) statutory damages pursuant to 15 U.S.C. 1692k(a); and, (b) fees and costs pursuant to 15 U.S.C. 1692k(a).

COUNT 4 Violation of Fla. Stat. 559.72(11) 559.72(12) and 559.72(18) 71. Paragraphs 1 through 47 are re-alleged as though fully set forth herein.

72.

This count is for violations of Florida Statutes 559.72(11) 559.72(12) and 559.72(18). This count consists of plaintiffs Gary Bonnici and Katherine Bonnici and Defendants US Bank, Bank of America, Terry Palmiter, Morris|Hardwick|Schneider and DOES 2, 3 and 4 (if not dismissed/stricken per paragraph 10, above).

73.

Florida Statutes 559.72 provides in part: In collecting consumer debts, no person shall: (11)!Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare. ....

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(12)!Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney. .... (18)!Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorneys name and address, unless the debtors attorney fails to respond within 30 days to a communication from the person, unless the debtors attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication. 74. The dunning letters from Defendant Morris|Hardwick|Schneider failed to contain the name and/or signature of a Florida licensed attorney and failed to contain a disclaimer that the letters had not been reviewed by an attorney. Wherefore, these letters falsely implied that they were sent from an attorney when in fact, they were not sent from an attorney, in violation of Florida Statutes 559.72(11) and 559.72(12).

75.

The dunning letters from Defendant Morris|Hardwick|Schneider implied that Morris| Hardwick|Schneider was a Florida law firm. The letters only contained three names Morris, Hardwick and Schneider. On information and belief, none of these individuals is a Florida licensed attorney. These letters falsely implied that Morris|Hardwick|Schneider was a Florida licensed attorney(s), in violation of Florida Statutes 559.72(11) and 559.72(12).

76.

The dunning letters from Defendant Morris|Hardwick|Schneider falsely implied that Morris|Hardwick|Schneider, as a Florida licensed attorney, was going to file a foreclosure

25 VERIFIED COMPLAINT

lawsuit against the Plaintiffs, in violation of Florida Statutes 559.72(11) and 559.72 (12).

77.

On information and belief, the name used by Defendant Morris|Hardwick|Schneider in its dunning letters - Morris|Hardwick|Schneider is not a Florida licensed attorney, it is not a Florida registered fictitious name, it is not a Florida registered partnership name and it is not a Florida registered corporate. It is, in fact, a pseudo name for some other unknown entity or persons, in violation of Florida Statutes 559.72(11) and 559.72(12).

78.

Defendants US Bank and Bank of America knew that the Plaintiffs were represented by counsel on the subject debt before these defendants directed their agents - Defendants Morris|Hardwick|Schneider and Terry Palmiter - to contact the Plaintiffs.

79.

Before Defendant Terry Palmiter telephoned Plaintiff Gary Bonnici and before he sent a letter to the Bonnicis, Defendants US Bank and Bank of America advised Defendant Terry Palmiter that the Plaintiffs were represented by attorneys. Terry Palmiter admitted as much in his letter when he stated on the sticky note Read and give to your attorney.

80.

Before Defendant Morris|Hardwick|Schneider sent the dunning letters to the Plaintiffs, Defendants US Bank and Bank of America told Morris|Hardwick|Schneider that there
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was a foreclosure case on the same debt. Morris|Hardwick|Schneider, as attorneys at law, could readily have ascertained that Plaintiffs were represented by counsel and have obtained Plaintiffs counsels name, address and telephone number from the pleadings and documents in the court file, from the Florida State Bar website or from an internet search for Gingo & Orth.

81.

All defendants violated Florida Statutes 559.72(18) by their contact with the Plaintiffs.

82.

Florida Statutes 559.77(2) provides for statutory damages of $1000.00 for each violation.

83.

Wherefore, the Plaintiffs demand (a) statutory damages; and (b) fees and costs pursuant to 559.77(2).

COUNT 5 Violation of Florida Statute 501.204

84.

Paragraphs 1 through 47 are re-alleged as though fully set forth herein.

85.

This count is for violations of Florida Statute 501.204. This count consists of plaintiffs Gary Bonnici and Katherine Bonnici and the defendants in this count are

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US Bank, Bank of America, Terry Palmiter, Morris|Hardwick|Schneider and DOES 2, 3 and 4 (if not dismissed/stricken as per paragraph 10, above).

86.

Florida Statute 501.204 states:

Unlawful acts and practices. (1)!Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. 87. Defendant US Bank and Bank of America have contacted an enormous number of Florida licensed real estate sales persons and brokers and engaged them in the act of assisting with the collection of US Bank and Bank of Americas mortgage loan debt under the guise of the possibility of a short sale with remuneration available to the sales agent or broker upon successful short sale. To this end, US Bank and Bank of America arranged to provide Florida sales persons and brokers with forms that the sales person or broker are then directed to give to the homeowner who is behind on his mortgage loan payment. These forms require the homeowner to provide sensitive and confidential information to the real estate sales person or broker who then forwards it to Defendants US Bank and Bank of America. These forms do not indicate that the real estate sales person or broker is acting as a debt collector, or

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agent of a debt collector, nor do these forms state that this is an attempt to collect a debt and that any information obtained will be used for that purpose.

88. The Defendant Terry Palmiter, a Florida licensed real estate sales person was acting as an agent of Defendant Morris|Hardwick|Palmiter when he made his initial oral communication by telephone to Plaintiff Gary Bonnici. In that communication, Terry Palmiter did not provide the notice that he was a debt collector attempting to collect a debt and that any information obtained would be used for that purpose.

89. Defendant Terry Palmiter admitted in the letter he sent to Plaintiff Gary Bonnici that he was acting as agent of Defendant Bank of America. In that letter he did not provide any notice that he was acting as a debt collector.

90. The use of Florida licensed real estate sales persons and brokers to act as covert debt collectors on behalf of Defendant US Bank and Bank of America is an unfair and deceptive trade practice in violation of Florida Statute 501.204.

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91.

Wherefore, the Plaintiffs demand remedies pursuant to Florida Statutes 501.211 and 501.2105 for:

(a) declaratory relief; (b) actual damages; (c) attorney fees and costs.

__________________________ George Ging, FBN 879533 James Orth, FBN 75941 2215 Garden Street, Ste. B Titusville, Florida 32796 321-264-9624 Office 866-311-9573 Fax jamesorthlaw@gmail.com gingo.george@gmail.com

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