case 9:20-cv-81728-DMM Documen t 17-1 4

Entered on FLSD Dock et lU'-'df'l!!:f.J

case 9:17-cv-80728-KAM Document 1 Entered on FLSD age 1 of 25
Docket O /13/

UNITED STATES DJSTRICT COURT p=m::-:s=.ry~~:..t~~~-D-.-c-.

FOR ~:r~~~t:i~:o';oruf /~~.,::,~~!
1 .-•-·•···-·;·x·~-'.!Z,:'.~:.'.2~~.- . . . .
LAURENCE SCHNEIDER, Case No.:
Plain tiff PLAINTIFF'S COMPLAINT FOR:

1. VIOLATION OF THE FAIR

vs. CREDIT REPORTING ACT
2. VIOLATION OF THE FAIR DEBT
COLLECTIONS PRACTICES ACT
FIRST AMERICAN BANK, as 3. VIOLATION OF SECTION 5 OF
succe ssor by merg er to Bank of Cora l THE FTC ACT
Gabl es, LLC . 4. BREACH OF CONTRACT
Defe ndan ts
Jury Trial Demanded

17-cv-80728 MARRA/MATTHEWMAN
Plaintiff Laurence Schneider (hereinafter referred to as
"Plaintiff') hereby alleges in this
Complaint against Defendant First American Bank, as
successor by merger to Bank of Coral
Gables, LLC (hereinafter 11FAB" or "Defendant") as fo1lo
ws:

NATIJRE OF THIS ACTION

This action arises out ofDefendant's failure to provide finan
cial services and debt collection
services in a manner consistent with its legal obligation
s under: (a) the Fair Credit Reporting Act
('~FCRA"), 15 U.S.C. §§ 1681-168 l ,c; (b) the Fair Debt
Collection Practices Act ("FDCPA"), 15
U.S.C. §§ 1692-1692p; (c) the Federal Trade Commissi
on ("FTC") Act, 15 U.S.C. § 44; and (d)
the Home Equity Line of Credit (''HELOC"). Pursuant
to this action, Plaintiff seeks to obtain
monetary civil penalties, a pennanent injunction, restit
ution, disgorgement, monetary damages.
and other equitable relief for Defendant's violations of the
aforesaid Acts and breach of contract

"A-14"
cas e 9:20-cv-81728-DMM Document 17-1
4 Entered on FLSD Docket 10/21/2020 Pag
e 2 of 25 --- -
Case 9:17-cv-80728-KAM Document 1 Ente
red on FLSD Docket 06/13/2017 Page 2 of 25

THE PARTIES
Plaintiff
1. Plaintiff is a citizen and domiciled in Palm Beach Coun
ty, Florida, and the lawful owner
of a parcel of real property (hereinafter "Subject Propertyn
) located in Palin Beach County
at 17685 Pond Court, Boca Raton, FL 33496.

Defendant
2. Defendant FAB is an Illinois banking corporation
conducting business in Palm Beach
County, Florida, with its principal place of business in
Elk Grove .Village, Illinois.
3. Defendant FAB merged with the Bank of Coral Gabl
es, a non-member of the Federal
Reserve System, effective December 5, 2014, acqu
iring the assets and assuming the
contractual obligations of the Bank of Coral Gables.

JURISDICTION AND )'EN UE

4. This Court has federal questionjlll'isdiction pursuant
to 28 U.S.C. § 1331.
5. This Court bas diversity jw'isdiction pursuant to 28
U.S.C. § 1332(a) as the amount in issue
in this.action exceeds $75,000, exclusive of interest,
costs, and attorneys' fees, and is
between citizens of different states (Plaintiff is a citize
n of Florida and Defendant is a
citizen of Illinois).

6. This Court has personal jurisdiction over the Defendan

t pursuru1t to Fla Stat § 48.193.
7. Venue lies in this District pursuant to 28 U.S.C. § 139l
(b) because the Subject Property at
issue in this present lawsuit lies within the jurisdictional
limits of this Court.

2
·cas e 9:20-cv-81728-DMM Docu men t 17-1 4
Ente red on FLSD Docket 10/21/2020 Page· 3
of 25
Case 9:17-cv-80728-KAM Document 1 Entered on FLSD
Docket 06/13/2017 Page 3 of 25

,Al,,LEGATIONS COMMON TO ALL CLAIMS

8. This case arises from a purchase money. federally related
first lien mortgage loan, which
Plaintiff executed simultaneously upon the closing and acqu
isition of the Subject Property
at issue.

Execution ofHELOC op Subiect Property

9. On July 26, 2006, Plaintiff and Stephanie L. Schneider purch
ased the Subject Property at
issue with cash and a cashier's check for $1,427,471,19 to serve
as their principal residence.
10. On the same date, Plaintiff closed on a HELOC
with the Bank of Coral Cables in the
amount of $1,500,000.00 on the Subject Property. A copy of
the HELOC is attached hereto
as Exhibit B to the Complaint

11. The HELOC was obtained for personal and household

purposes. which included a
substantial amount of interior woodwork, build out and
completion of certain design
elements of the home, along with landscaping and required
code upgrades.
12. Funding for the HELOC was based upon a faulty and inflat
ed property appraisal performed
in March 2006, valuing the home at $2,000,000.00.

13. According to the terms of the HELOC, Plaintiff's payment

was due by the "payment due
date."

14. Under the written tenns of the HELOC, Plaintiff's paym

ent would be late if it was not
received within 15 days after the "Payment due date" on the
periodic statement.
15. The written tenns ofthe HELOC do not specify a fixed day
ofthe month by which payment
must be received.

16. Under the terms of the HELOC, the balance upon which finan
ce charges are chargeable is
determined by the beginning balance of the prior day, to
which new advances are added

3
·cas e 9:20-cv-81728-DMM Doc ument 17-1
4 Entered on FLSD Docket 10/21/2020
Page 4 of 25
cas e 9:17-cv-807 28-KAM Document 1 Entered on
FLSD Docket 06/13/2017 Page 4 of 25

and payments and credits are subtracted. Finance

charges are calculated on this balance
daily in accordance with the "daily balance method."
17. The writ ten terms of the HELOC, in relevant partt
do not define new advances to include
interest charges.

18. Plaintiff took the first draw on the HELOC on Mar

ch 3, 2007 and made regular interest
payments by the first of every month, which inclu
ded interest calculated up to the 15th day
of the prior month.

Bank of Coral Gables• Mer gerw ith FAD

19. Upon information and belief, FAB merged with
the Bank of Coral Gables s~metime
between the months of November and December
of 2014.
20, FAB bas not provided evidence to Plaintiff that
a merger with the Banlc of Coral Gables
included an assignment and/or transfer and veste
d right to the Subject Property at issue or
the executed HELOC.

2 J. Plaintiff did not receive any letter of transfer of

servicing from FAB or from the Bank of
Coral Gab les regarding the subject HBLOC.

FAB's Inte rnal Errorls}

22, Plain tiff's first cont act from FAB was by 1ele
phone in May 2015 , in whic h FAB advised
Plaintiffthat ifhe "did not pay past due amounts owe
d on the subject HELOC, FAB would
foreclose."

23. During the call, FAB representatives advised

the Plaintiff that FAB had merged with the
Bank of Cora) Gables and that FAB now own
ed both his HELOC and underlying
mortgage.

4
Cas e 9:20-cv-81728-DMM Documen t 17-14
Entered on FLSD Docket 10/21/2020 Page 5 of
25
case 9:17-cv-80728-KAM Document 1 Entered
on FLSD Docket 06/13/2017 Page 5 of 25

24. During this May 2015 telephone conversation, FAB repre

sentatives confinned that FAB
had sent notification of loan tl'ansfer (RESPA Letter) and statem
ents to an incomplete post
office box mailing address and with the subject properties'
city, state, and zip code.
25. Plaintiff advised FAB that all incorrect mail would not neces
sarily be forwarded and that
he had not yet received any such forwarded mail from FAB.

26. On May 28, 2015, Plaintiff received wire instructions for

the May 1, 2015 and April 1,
2015 payments from FAB representatives.

27. Plaintiff requested verification of the account number becau

se there was no pre-existing
account or loan number with FAB.

28. FAB advised Plaintiff to continue using the Bank of Coral Gabl
es account number and his
name for identification for wire payment purposes.

flaintiff Made Timely Payments on the HELOC

29. On May 28, 2015, Plaintiff sent his April 1, 2015 and May
1, 2015 payments by wire.
30. On May 29, 2015, upon request, FAB confirmed receipt
of payments that were due on
April 1, 2015 and May 1, 201S .

31. On June 1, 2015, Plaintiff wrote to FAB, advising

that be had not received an invoice for
his Jwie 1, 2015 payment, and therefore did not know the
amount owed for the June l,
2015 payment.

32. On June 3, 2015, James Kielbasa ~f FAB apologized to

Plaintiff via email for the late
response and advised that the amount due for the June l, 2015
payment was $4,427.64. Mr.
Kielbasa requested confmnation of receipt oftbe July 1, 2015
state ment

5
case 9:20-cv-81728-DMM Document 17-1 4
Entered on FLSD Docket 10/21/2020 Page 6
of 25
Case 9:17-cv-80728-KAM Document 1 Entered
on FLSD Docket 06/13/2017 Page 6 of 25

FABt8 M)srepresentations and Misappropriations

33. On June S, 2015, Jennifer Anderson. Vice President at First
American Bank sent Plaintiff
a letter which acknowledged that FAB's clerical errors occur
red dwing the recent merger
with Bank of Coral Gables. FAB sent conftnnation that
it had erroneously printed an
incorrect billing address and due to FAB's clerical error
, Plaintiffs payments were "not
considered late,, [Emphasis Added].

34. Ms. Anderson also stated, "Today, we have asked the credi
t agencies to correct your credit
file to satisfactory status." Ms. Anderson provided the Plain
tiff the name, address, phon e
number and website information for Experian, Trans Unio
n, Equifax and lnnovis. A copy
of the June 5, 2015 Letter from Jennifer Anderson is attach
ed herewith as Exhibit B to the
Complaint

35. FAB's clerical error occumxl during its merger with the
Bank of Coral Gables, and FAB
assured Plaintiff that the delinquencies reported in April
2015 with all three credit bureaus
would be immediately corrected.

36. This was not, and at the time of filing this Complaint,
done, despite reassurances from
FAB, which was in breach of the implied covenant of good
faith and fair dealings. along
with the express terms ofthe HELOC.

37. FAB, however, continued to calculate accrued interest on

the outstanding balance, which
included the late fees, even though the late fees were repre
sented. to Plaintiffas .having been
reversed.

38. On June 8, 2015, Plaintiff reaffirmed to FAB that payment

for the periodic billing due June
1, 2015, was immediately made on June S, 2015, as instru
cted.

6
cas e 9:20-cv-81728-DMM Document 17-1
4 Entered on FLSD Docket 10/21/2020
Case 9:17-cv-80728-KAM Document 1 Page 7 of 25
Entered on FLSD Docket 06/13/2017 Pag
e 7 of 25

39. On June 20, 2015 Plaintiff wrote to FAB's Jame

s Kielbasa, affirming receipt of the
statement for the July 1, 2015 payment due date
and confirmed FAB's use of Plaintiff's
l
coITeCt mailing address. I
I

40. On the same day, Plaintiff sent a written request for

the year to date charge/payment history
\
and a copy of the promissory note to reconcile the
interest with the outstanding balance I
I
I
owed on the HELOC. I

41. On June 26, 2015, Plaintiff informed Milton Espi

noza, Vice President, and Commercial
Loan Relationship Manager at FAB, that he was
continuing to be billed for late charges
prior to the payment due date and that this adva
nced billing was part of the continuing
problems Plaintiff was encountering with his acco
unt
42. Plaintiff advised FAB that the loan was boarded
by FAB with numerous errors, including
a wrong billing address which delayed Plaintiff's
receipt of monthly statements, and made
yet another written demand for copies of the note,
mortgage, and the year to date payment
history in an attempt to reconcile interest charged
and outstanding balance to date.
43. Milton Espinoza of FAB provided Plaintiff with
a partial loan history, which was dated
June 26, 2015, but which neither offered nor prov
ided an explanation of the partial loan
history extracted from FAB's recordkeeping syste
ms.
44. On June 26, 2015, Milton Espinoza emailed
Plaintiff pdfversions of the promissory note
and mortgage from the Bank of Coral Gables.

45. On June 27, 2015, Plaintiff emailed a written requ

est for explanation to Milton Espinoza
regarding FAB's s July 1, 2015 statement and attac
hed the July statement referenced in the
letter to request clarification about whether the due
date was the 1st or 15th ofevery month,

7
cas e 9:20-cv-81728 -DM M Docume nt 17-1
4 Ente red on FLSD Docket 10/2 1/2020 Pag
e 8 of 25
case 9:17-cv-80728-KAM Document 1 Ente
red on FLSD Docket 06/13/2017 Page B of 25

because FAB' s system continued to record payments

as late and assessed a late charge on
each of Plaintiffs payments.

46. On July 15, 2015, FAB received $4,055.91 throu

gh a wire payment from Plaintiff for the
July I, 2015 billing amount owed.

47. ln July 2015, Plaintiff called the customer servicer

number listed on the FAB periodic
statement, for clarification of the amou nt due and that
the account was in good status.
However. the customer service agent could not provide
Plaintiff any accurate information
as to either question. After keeping Plaintiff on hold
for fifteen minutes, he came back on
the phone, informing Plaintiff that he had to check with
his supervisor and would return
the call. Plaintiff never received a return cail from FAB
customer service.
48. On August 8, 2015, Plaintiff wrote to FAB's Brian
Hagan regarding the settlement of the
HELOC, noting the derogatory reporting on credit
due to incorrect loan boarding and
incompetence by FAB and provided a copy of the June
5, 2015 letter fi:om Ms, Anderson
to Plaintiff, acknowledging that it~ FAB's fault
for the billing errors.
49. On August 28, 2015, FAB received $4,297.83
via a wire payment from Plaintiff.
SO. On September 30. 2015, FAB received $3,977.53
via a wire payment from Plaintiff. On
the same day, Plaintiffwrote to FAB's authorized repre
sentative, Brian Hagan, confirming
his September 1, 20 lS payment on the HELOC account,
advising of flawed information in
the servicing system of records, directing FAB to apply
the payment accordingly, and
noting his frustration concerning FAB 's continuing erron
eous and derogatory reporting of
the account, despite numerous requests to FAB to corre
ct the infonnation and Defendant's
promises to do so.

8
cas e 9:20 -cv-8 1728-DM M Doc ume nt 17-1
4 Entered on FLS D Doc ket 10/2 1/20 20 Pag
e 9 of 25
case 9:17-cv-80728-KAM Document 1 Ente
red on FLSD Docket 06/13/2017 Page 9 of
25

51. On October 1, 2015, Brian Hagan confirmed recei

pt of Plaintiff's September 30, 2015
payment and requested that Plaintiff call him with any
questions regarding the October 1,
2015 payment.

52. On October 27, 2015, Plaintiff called the FAB's custo

mer service number listed on the
Periodic Billing Statement; however, customer servi
ce responded that they were unable to
detennine the HELOC account information with accu
racy at that time.
53. On October 27, 2015, Plaintiff again wrote to
Brian Hagan to address FAB's failure to
address and remediate its flawed systems of records,
which continued to report that the
1-IBLOC account was delinquent for six months and more
than 30 days past due for October
2015, thereby fraudulently corrupting credit worthines
s and resulting in several failed
attempts to secure financing and the customer service
department's inability to determine
the last paid date and next due date of the mortgage loan.

54. An October 27, 2015 credit report obtained by Plain

tiff indicated that FAB had reported
delinquencies for payments due on October 2015 and
September 2015 with all three credit
bureaus, along with a balance of $1,495,469.00. A
copy of the October 27, 2015 credit
report is attached hereto as Exhibit C to the Complain
t.
55. According to this October 27. 2015 credit report ofPlain
tiff, FAB reported the last activity
was in October 2015. According to the tri-merge cred
it report, FAB showed Plaintiffto be
$3,982 past due. Furthermore, the report stated that
Plaintiff was between 30-59 days late,
twice in October 2015 and September 2015. Again,
before the month of October had even
expired, FAB had already informed the credit burea
us that Plaintiff's October 1, 2015
payment was already over 30 days late, in addition
to not removing the late payment
notification for the September 1, 2015 HELOC payrn
ent.

9
· cas e 9:20-cv-81728-DMM Docum
ent 17-14 Entered on FLSD Docket
10/21/2020 Page 10 of
cas e 9:17-cv-80728-KAM Document 1· Ent
~~d on FLSD Docket 06/13/2017 Pag
e 10 of 25

56. On October 30, 2015, Plaintiff wrote

to Brian Hagan to inquire about how
FAB would
remediate the continued erro11eous credit
reporting of the HELOC account and the harm
such erroneous reporting had caused Plaintif
f to date. Plaintiff again requested a complet
e
payment history of the account from originat
ion, as well as a copy of the entire originat
ion
file, along with any and all prior billing
statements, notices, and other corresponde
nce
pertaining to the origination and servicing of
the loan and asked that the request be deem
ed
a qualified written request. On the same date
, Plaintiff also asked for an explanation for
the failure ofthe application of the Septem
ber 201 S payment, as the promised verifica
tion
djd not occur and the September 2015 pay
ment was not applied properly.
57. On October 30,201 S, Brian Hagan wrote bac
k to thank Plaintiff for the email and to adv
ise
him that the October 1, 2015 payment in the
amount of$4,646.05 was due, along with the
November 1, 2015 payment in the amoWlt
of $3,823.29. Brian Hagan also requested
that
the Plaintiff provide his personal tax
returns and personal financial statemen
t for
consideration of a deed in lieu.

58. On October 30, 2015, FAB received $4,646.0

5 from Plaintiff.
59. On November 4, 2015, Plaintiff again wro
te to FAB's authorized representative, Bria
n
Hagan, requesting infom-iation and docume
ntation regarding the steps FAB had taken
to
ensure that the erroneous reporting made by
FAB to the credit bureaus had been remedie
d,
as Plaintiff's credit was continuing to suff
er as a direct and proximate result of FAB
's
failure to apply Plaintiff's payments to the
HELOC account and continued reporting
of
negative and inaccurate information to all
credit ~gencies. Plaintiff specifically cited
the
need for documentation and included a copy
of the correspondence that FAB sent to the
credit agencies, acknowledging that Plaintif
f's payments had been timely.

10
· cas e 9:20-cv-81728-DMM Document
17-1 4 Entered on FLSD Docket 10/21/20
20 Page 11 of
cas e 9:17-cv-80728-KAM Document 1 Ent ~d
on FLSD Docket 06/13/2017 Page 11 of
25

60. On November 4, 2015, Brian Hagan responded that

he was in possession of the payment
history, which would be sent to Plaintiff, and that
although he had. been advised that the
credit reporting was accumte, he would "double
check" and provide Plaintiff with the
correspondence between FAB and the credit repo
rting agencies regarding the matter. A
copy ofthe email exchange between Plaintiffand
Brian Hagan is attached hereto as Exhibit
D to the Complaint.

61. No such correspondence was ever received from

Brian Hagan or FAB.
62. On November 5, 2015, Plaintiff again wrote to
Brian Hagan expressing extreme concern
over assurances by FAB employees regarding the
accuracy of the credit reporting since
Plaintiffs paymentci were reported as late.

63. When Plaintiff asked for an explanation from Bria

n Hagan as to why he was marked
delinquent on the account when Brian Hagan conf
inned that his status was current, Plaintiff
was advised to deal only with Brian Hagan. This
was specifically because FAB's billing
records were severely corrupt by FAB's multiple cleri
cal errors, misapplication ofHELOC
payments, incorrect billing cycles and erron
eous hoarding of Plaintiff's HELOC
information at the time of merger with Bank of
Coral Gables. The culmination and
compounding of these errors made it impossible
for anyone at FAB to provide Plaintiff
with timely and accurate information regarding Plain
tiff's federally related mortgage loan.
FAB also wanted to keep the matter ~ntained and
not expanded through inquiries with
FAB' s loan servicing department.

64. Plaintiff_was now to rely on Mr. Hagan,s infonnatio

n and communication as to how much
the monthly payment would be each II)ontb.

65. Thus, Plaintiff made multiple payments as directed

by Brian Hagan himself.

11
· case 9:20-cv-81728-DMM Document 17-14
Entered on FLSD Docket 10/21/2020 Page 12
of
case 9:17-cv-80728-KAM Document 1 Ent ~d
on FLSD Docket 06/13/2017 Page 12 of 25

66. Plaintiffagain requested detailed explanations for interest

r~te calculations, specific billing
cycle infonnation for the months of September l, 2015, Octo
ber 1, 2015, and November
1, 2015, and the reason "the information which you have
provided to me below and
represented to be accurate differs from the information conta
ined in the hank's servicing
system of records for these two periods."

67. On November 12, 2015, Brian Hagan advised the Plaintiff

that he had not yet received the
financial infonnation requested by FAB.

68. On November 16, 2015, Plaintiff communicated with

Brian Hagan regarding the
completion of the financial information form and FAB's
requests for information from
Plaintiff, and provided FAB with the documentation reque
sted by FAB, which included
tax retur ns and W-2 forms.

69. On November 17, 2015 P1aintiffhad absolutely no

idea of how much his monthly HELOC
payment was supposed to be. Plain tiff wired FAB an arbitr
ary amount of $4,500.00.
70. On November 18, 2015, Plaintiff, in his capacity as
guarantor of 1st Fidelity Loan
Servicing, received another communication from Ms. Cabr
era of Bank United, in which
she again explains, "Per our conversation, as part of our loan
conditions from time to time
we revie w guar ~tor' s credit and yours has been addre
ssed. Please provide letter of
explanation and supporting documentation ofdocumentation
of resolution to credit report."
71. Apparently, the proof of wired payments and several comm
unications between Plaintiff
and FAB, was not sufficient evidence.

72. On November 18, 2015, Brian Hagan advised the Plain

tiff that "it looks like FAB has
received everything it needs from [Plaintiff] and will revie
w it promptly." Later the same
day, Plain tiff advised Brian Hagan that because of the false
credit information provided by

12
· cas e 9:20-cv-81728-DMM Document
17-14 Entered on FLSD Docket 10/21/20
cas e 9:17-cv-80728-KAM Document
20 Page 13 of
1 En t~d on FLSD Docket 06/13/2017
Page 13 of 25

FAB, Bank United had suspended business lines

of credit solely on the basis ofthe negative
reporting on the personal creilit report, which
was, and continues to be, erroneous.
73. On November 19, 2015, Brian Hagan and Plai
l
ntiff met, but FAB did not provide Plaintiff
with an explanation for or the requested details I
accounting for the HELOC loan. Late the sam
regarding the loan, payment histories or the
i
i
e day, Plaintiffagain wrote to FAB to request l
remediation ofthe reporting errors and a letter
to rectify the damaging information supplied
to credit agencies which was destroying Plai
ntiffs credit rating, score, and worthiness in
the eyes of potential lenders, Furthermore, Plai
ntiff reminded Mr. Hagan that, "during
a
QWR, the bank is required to NOT mak
e any negative reporting to the credit
...repositories."

74. On November 20, 2015, Brian Hagan wrote

to Plaintiff regarding possible settlement
strategies and confinned that FAB had run a cred
it report to ensure that Plaintiff's account
was not showing past due payments and that,
as agreed, reporting included all payments.
Later the same day, Plaintiff wrote to express
his gratitude to Brian Hagan for making
corrections to the credit reports and requeste
d documentation regarding the payment
history of the loan since origination and all exec
uted loan documents.
75. On November 30,201 S, Plaintiff received
a letter from Henry Bolz, ofKeller & Bolz, LLP
,
notifying Plaintiffthe he represents First Ame
rican Bank ("FAB''). Mr. Bolz' letter stated:
''This letter responds to that email which you
sent to Brian Hagan at 3:05 p.m. on
Friday, October 30, 2015. That email can argu
ably be viewed as an attempt by you to
dispute directly with FAB, in accordance with
15 U.S.C. § 1681s-2(a) (8) of the
Consumer Credit Protection Part of the Fair
Credit Reporting Act ("FCRA"),
infonnation that FAB provided to credit reporting
agencies earlier this year."
''In accordance with the FCRA, FAB has cond
ucted an investigation and reviewed that
information in which you provided with
respect to the disputed late payment
information you identified. After completing
its investigation~ FAB communicated

13
· cas e 9:20-cv-81728-DMM Docum
ent 17-14 Entered on FLSD Docket
10/21/2020 Page 14 ef
Cas e 9:17 -cv- 807 28-K AM Docume
nt 1 Ent~t'ed on FLSD Docket 06/13/20
17 Page 14 of 25

with all ofthe major/national credit reporting

agencies and advised them that all of you
pas t due payment notices have been
reversed, and that you had been making
payments as agreed. This letter is being time all
ly sent to you in accordance with 1S U.S.C.
§ 168li".

"Your November 18, 2015 (7:48 p.m. EST)

and November 19, 2015 (4:37 p.m. EST)
emails to Brian Hagan indicate that in add
ition to "immediately remediating the
reporting errors" (done), FAB needs to "sen
d any letters needed to rectify the harms"
and identifies the Bank United-1st Fidelity
revolving line of credit as having been
affected. Do you still want/need FAB to writ
e to Bank United (or might a letter now
be unnecessary)? Please let me know."

A copy of the letter to Plaintiff from Mr.

Bolz is attached hereto as Exhibit D to the
Complaint.

76. This was now the fourth time a representativ

e of FAB or counsel representing FAB had
acknowledged the ongoing billing errors acco
rding to the FCRA. and their requirement to
rectify FAB systems of record to properly repo
rt Plaintiff's credit file.
77. Mr. Bolz' Letter also specifically instructe
d Plaintiff; that all future correspondence
regarding these matters addressed should spec
ifically be with his finn, and not FAB:
"All further requests for information for
documents in any fashion relate to any
complaints or disputes that you might have
pursuant to the FCRA should be addressed
to the undersigned at the above address
of this correspondence."
78. Thus, Mr. Bolz has not only admitted that
FAB had made errors according to the FCRA,
he is also aware of the Bank United-1st
Fidelity LOC being tenninated due to FAB
's
reporting errors.

79. According to this letter and a communicati

on confirmed by Mr. Hagan, Plaintiff was now
supposed to receive my payment billing and
payment information from Mr. Bolz, who did
not identify himself as a debt collector in his
November 30, 2015 letter to Plaintiff.

14
· cas e 9:20 -cv- 817 28-D MM Docume nt
17-14 Ente red on FLSD Docket 10/21/20
20 Page 15 of
cas e 9:17-cv-80728-KAM Document 1
Ent ~id on FLSD Docket 06/13/2017 Pag
e 15 of 25

80. On January 7, 2016 and January 9, 2016, FAB

reported Plaintiffwas 30 days late in making
a payment on the HELOC. A copy of the email notif
ying Defendant abou t the derogatory
credit reporting on January 7, 2016 and January
9 is attached hereto as Exhibit F to the
Complaint.
81. Again, since Plaintiff had absolutely no idea of how
much his monthly HELOC payment
was supposed to be, on January 14, 2016, Plain
tiff wired FAB an arbitrary amount of
$4,800.00 via wire payment. Mr. Hagan confirme
d receipt of the payment.
82. On January 18, 2016, Plaintiff wro~ to Henry Bolz
and carbon copied Brian Hagan, Gary
Smith, and James Berton ofFA B, to reiterate the
ongoing erroneous servicing caused by
the lack ofquality control and openly questioned why
no one at the bank would investigate,
provide an account history, or review the loan docw
nents, and requested the correction of
the false reporting and a retraction of the erron
eous information, which was causing
financial difficulties as a result of the balloon mort
gage on the Subject Property.
83. On January 25, 2016, Plaintiff once again had abso
lutely no idea ofhow much his monthly
HELOC payment was supposed to be, and thus
wired FAB an arbitrary amount of
$4,500.0 0,

84. On February I7, 2016, Plaintiff once again wired

FAB an arbitrary amount of $4,500.00.
85. On March 15, 2016, Plaintiff once again wired F
AB an arbitrary amount of $4,500.00.
86. On April 6, 2017, Plaintiff once a ~ wired FAB
an arbitrary amount of$4,SOO.OO.
87. On June 13, 2016, Brian Hagan requested that
Plaintiff provide FAB with a completed
personal financial statement.

15
• cas e 9:20-cv-81728-DMM Document 17-1
4 ~ntered on FLSD Docket 10/21/20 20
Page 16 of
cas e 9:17-cv-80728-KAM Document 1
Ente(ed on FLSD Docket 06/13/2017 Pag
e 16 of 25

88. On June 30, 2016, Plaintiff wrote to Brian Hag

an regarding the sensitive financial I
infonnation requested by FAB, and provided attac
hments to several of Plaintiff's financial
I
forms that documented the remitted debt.
I
89. On July 7, 2016, Plaintiff received a delinquency
letter from FAB for the months of May,
June, and July 20 l 6, which advised Plaintiff that the
I
i
current amount owed was $59,481.27,
of which $50,154.44 was due for the June 1, 2016
payment
90. Plaintiff alleges that no rational explanation, calcu
lation, or infonnation was included with
the one page request for payment

91. On Aug ust 9, 2016, Plaintiff contacted Brian

Hag an to provide the financial information
requested by FAB.

92. Plaintiff subsequently advised that FAB has

caused delinquency and severely
compromised the ability of entities in which he
is a guarantor to obta in personal and
•business credit on multiple occasions due to FAB
's negligent servicing practices.
93. FAB had not, and to date has not, remedied the
past due status of the subject HELOC.
94. FAB reported to 1he Equifax credit agency
that Plaintiff was 30 days late in making
payment in May 2016, 60 days late in June and July
of2016, and 120days late every month
since.

95. Since April 3, 2017, the TransUnion credit agency

has reported that the outstanding balance
bas been $1,495,457.00

96. The credit agencies, Equifax, and Experian, cont

inue to report an unpaid balance of
$1,708,894.00 and falsely state that the Plain
tiff is using 114% of the HELOC limit.
97. On February 20,2017, an Experian report revealed
data that contradicted the verbal and
written statements of FAB and reported no data
for the months of January and February

16
· cas e 9:20-cv-81728-DMM Docum
ent 17- 14 Entered on FLSD Docket
10/21/2020 Page 17 of
cas e 9:17-cv-80728-KAM Document
1 Ent ~ed on FLSD Docket 06/13/20
17 Page 17 of 25

2016, eventhoughFABreceived $9,300.00

on January 25, 2016 from the Plaintiff. A copy
ofthe Experian credit report is attached here
to as Exhibit G to the Complaint.
98. FAB has added fees for which no explana
tion or information has bee n provided;
and upo n
information and beli et FAB has added,
and will continue to add fees and cost
s not
contemplated or agreed to by tbe HELOC that
would make the loan usurious. A copy of a
response to a Qualified Written Request mad
e by Plaintiffwith a full payment history unti
l
May 24, 2017 is attached as Exhibit H.

CO UN f I-VIOLATION OF THE FAI

R CREDIT REPORTING ACT
99. Plai ntif f re-alleges and incorporates by
reference all preceding paragraphs.
100. Sec tion 623 (a) of the FCR A describe
s the duties of furnishers to provide accu
rate
information to Cl'edit Reporting Agencie
s ("C RAs "). Section 623 (a)( l)(B ) proh
ibits
furnishers from providing information
relating to a consumer to any CRA if(i) the
person
has been notified by the consumer, at the
address specified by the person for such noti
ces,
that specific infonnation is inaccurate; and
(ii) the information is, in fact, inaccurate.
101. In the instant case at bar, Plaintiff has been
misled by FAB, and received misinformation
as to the validity of the debt owed, which was
, and is, the subject of this action.
102. Despite pro of from Plaintiff to the contrary
, in numerous instances, FAB has continued to
furnish infonnation to a CRA relating to Plai
ntiff when (a) FAB was notified by Plaintif
f
that specific information was inaccura
te and (b) the information was in fact, inaccura
te.
103. Further cornpmmding this fraud are the mis
representations detailed above in the precedin
g
paragraphs of this Complaint demonstratin
g that FAB failed in its duty.
104. The acts and practices alleged above constitu
te violations of Section 623(aXl)(B) of the
FCRA, 15 U.S.C. § 1681s-2(a)(l)(B).

17
· cas e 9:20-cv-81728-DMM Docume
nt 17- 14 Entered on FLSD Docket
10/21/2020 Page 18 of
cas e 9:17-cv- 80728-KAM Document 25
1 Entered on FLSD Docket 06/13/20
17 Page 18 af 25

105. Section 623(b)(l) of the FCRA further requ

ires furnishers of information to CRAs to
conduct an investigation when the furnishe
r receives a notice of dispute from a CRA
in
accordance with the provisions of Section 6l
l(a)(2) ofthe FCRA, 15 U.S.C. § 1681i(a)(2)
,
and to report the results of the investigation
to the CRA.
106. FAB failed to report the results of its inve
stigation(s) to the CRA.
107. Section 623(a)(3) of the FCRA provides
that if the completeness or accuracy of
the
information furnished by any person to
any CRA is disputed to such person
by any
consumer, the information must be noted as
disputed in the information reporte.d by such
pers on to any CRA. Thi s particular prov
ision does not require consumer disputes to
be in
writing.

108. Nonetheless, each and every documented

effort by Plaintiff to validate the debt was
in
writing, further highlighting the egregiousnes
s ofthe behavior of FAB.
109. Section 621 ofthe PCRA, 15 U.S.C. § 1681
s, authorizes the Court to award monetary civi
l
penalties of not more than $2.500 per violatio
n for each violation of Sections 623(a)(3) and
>

623(b) of the FCR A.

110. Each instance in which FAB has violated

Sections 623(a)(3) and 623(b) of the FCR
A
constitutes a separate violation of the FCR
A for which Plaintiff seeks monetary civi
l
penalties under Section 621 ofthe FCRA.
15 U.S.C. § 1681 s.
111. FAB has engaged in knowing violations of
the FCRA as describe.d above, which constitute
a pattern or practice of violation.

112. FAB is liable to Plaintiff in an amount to be

proven at trial.
CO UN T II-V IOL ATI ON OF TH E FAI
R DE BT COLLECTION PRA CTI CES
ACT
113. Plai ntif f re-alleges and incorporates by
reference all preceding paragraphs.

18
• cas e 9:20-c v-81728-DMM Docume
nt 17- 14 Entered on FLSD Docket
10/21/2 020 Pa~e 19 ef
cas e 9:17-cv-80728-KAM Document
1 EntEfrict on FLSD Docket 06/13/20
17 Page 19 of 25

114. Section 814 of the FDCPA, 15 U.S.C. § 169

2e, holds that a violation of the FDCPA shall
be deemed an unfair or deceptive act or practice
.
;
115. In connection with the collection of a debt
, FAB, directly, and indirectly, used false
, .
l
I

deceptive, or misleading representations \

or means in violation of Section 807 of
the
FDCPA, 15 U.S.C. § 1692e, including, but
I
not limited to the followin~ i
I
l 16. FAB, directly, or indirectly, used false repr !
esentations concerning the character, amount,
or legal status of Plaintiff's alleged debt, whi
ch was in violation of Section 807(2XA) of
the FDCPA, 15 U.S.C. § 1692e(2)(A).

117. FAB, directly, or indirectly, failed to ~om

municate to the CRAs Plaintiff's alleged deb
t
and that the debt is disputed, which was in
violation of Section 807(8) of the FDCPA,
15
l).S .C. § 1692e (8).

118. The acts and practices alleged above eonstitu

te violations of Section 807 of the FDCPA,
15 U.S.C. § 1692e.

119. Each instance within five (5) years prec

eding the filing of this Complaint, in whi
ch
Defendant FAB has failed to comply with the
FDCPA in one or more of the ways describe
d
above, constitutes a separate violation for whi
ch Plaintiff seeks monetary clvil penalties.
120. F AB is liable to Plaintiff in an amount to
be proven at trial.
COUNT ill-VIOLATION OF SECTION~ OF TH
E Fl'C ACT
121. Plaintiffre-alleges and incorporates by refe
rence all preceding paragraphs.
122. Section S(a) of the FTC Act, 15 U.S.C. §
45(a), prohibits ''unfair or deceptive acts
or
practices in or affecting commerce." Rep
resentations of material fact that are false
or
misleading constitute deceptive acts or prac
tices prohibited by the FTC Act.

19
- cas e 9:20-cv-81728- DMM Docume
nt 17- 14 Entered on FLSD Docket 10/2
1/2020 Page·20 of
cas e 9:17-cv-80728-KAM Document 1
Entt?tict on FLSD Docket 06/13/2017
Page 20 of 25

123. As alleged above, in numerous instances and

through the means described above, in the
course of collecting debts from Plaintiff,
FAB, directly, and indirectly, has falsely
represented to Plaintiff, expressly or by imp
lication, that the debt was valid and that
Plaintiff had an obligation to pay the debt.

124. ln truth and in fact, in numerous instances the

material representations set forth above were
false or FAB did not have a reasonable basi
s for the representations at the time the
representations were made to Plaintiff.
125. Therefore, the representations set forth abov
e made to Plaintiff were false or misleading
and constitute deceptive acts or practices in viol
ation of Section S(a) of the FTC Act, 15
U.S.C. § 45(a).

126. FAB violated the FDCPA as described above,

with actual knowledge or knowledge fairly
implied on the basis of objective circumstances
. as set forth in Section 5(m)(1 )(A) of the
FTC Act, 15 U.S.C. § 45(m)(l)(A).

127. Section S(m )(lX A) of the FTC Act. 15 U.S

.C. § 45(m)(]XA)t Section 814(a) of the
FDCPA, 15 U.S.C. § 1692(e), and Section
4 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. § 2461,
as amended, authorize the Court to award
monetary civil penalties of not more than $11,
000 for each violation of the FDCPA.
128. In this matter, there have been more than 20 insta
nces of said violation(s). totaling a civil
penalty owed to Plaintiff in the amount of$220,0
00.00.
129. As such, Plaintiff prays for judgment in an amo
unt to be proven at trial, but no less than
$220,000.00

CO UNT IV-BREACH OF CONTRACT

130. Plaintiffre--alleges and incorporates by refe
rence all preceding paragraphs.

20
• cas e 9:20-cv-81728-DMM Docum
ent 17-14 Entered on FLSD Docket
10/21/2020 Page 21 ef
cas e 9:17-cv-80728-KAM Docum
ent 1 Ent~r'ect on FLSD Docket 06/
13/2017 Page 21 of 25

131. The contract at issue is the HELOC sign

ed by Plaintiff with the Bank of Coral
Gables,
which bank subsequently merged with F
AB.
132. The HELOC, the written contract upon
which FAB relies for payments from Plai
ntiff:
states in relevant part, ''to be effective any
change or amendment to this mortgage mus
t be
in writing and must be signed by whoeve
r will be bound or obligated by the cha
nge or
amendment."

133. Pursuant to the HELOC, the balance upo

n which the finance charge is applicable is to be
calculated as follows: "To get the daily
balance, we take the beginning balance
of your
Credit Line Account, each day, add new
advances and subtract any payments or
credits
and any unpaid finance charges."

134. The HELOC defines a specific "payment

due date" as "the date on the periodic stat
ement...
135. Since 2007, all statements and course of
dealings relating to the HELOC designated
the 1st
of the following month as the payment due
date.
136. Since 2007, and in the course of busines
s dealings relating to the HELOC, the 15th
of the
prior month. was designated as the date
cutoff for finance charges due by the 1st
of the
following month.

J 3 7.
Since 200 7, and in the course of busines
s dealings relating to the HELOC, an "ave
rage
daily balance11 on the monthly statements
was intended for purposes of illustration
only.
138. FAB unilaterally changed the peri
odic finance charge cutoff dates.
139. FAB unilaterally added charges
in calculating the daily balance in contrav
ention of the
HELOC.

21
· c ase 9:20-cv-81728-DMM Docum
ent 17- 14 Entered on FLSD Docket
10/21/2020 Page 22 ef
cas e 9:17-cv-80728-KAM Document 1
En tiid on FLSD Docket 06/13/2017 Pag
e 22 of 25

140. FAB_employed inadequate and failed processe

s and systems to boru·d Plaintiff's loan, and
proceeded to en·oneously service the loan
without remedying the deficiencies in the
onboarding process.

141. FAB' s faulty servicing included erroneous

porting of the mailing address of Plaintiff
,
which caused Plaintiffto fail to receive noti
ces and monthly statements for a period of ove
r
5 months, unilateral change to the payment
due dates, unilateral change to the cut-off date
for calculation of applicable interest due each
payment period, and erroneous application
of payments to interest and principal.

142. FAB's mishandling of the se1vicing of the

loan as described above was continuing and
spanned the period from December 2014 thro
ugh the filing of the instant suit.
143. Ifand when FAB properly took over the serv
icing ofthe loan, FAB assumed the obligati
ons
oftheHELOC.

144. The erroneous port ing and servicing caused

FAB to make false statements of material fact
consisting of wrong postings of interest
and principal payments and inflated mon
thly
billings that included improper late charges
and fees.
145. FAB's conduct represented a breach of the
HELOC.
146. Along with the contractual breaches, FAB,
through its actions, also breached its contrac
tual
covenant of good faith and fair dealing.

147. The contractual covenant of good faith and

fair dealing required each party to the contrac
t
to be honest in j ts dealings and to not purposef
ully take actions that would unfa irly prevent
other parties from enjoying their rights or
benefits under the contract or disappoint thei
r
reMonable expectations. Good faith and fair
dealing in connection with the
discharging of
performance and other duties according to
their tenns means preserving the spir it-n
ot

22
· case 9:20-cv-81728- DMM Docum
ent 17-14 Ent ered on FLSD Docket
10/2 1/20 20 Page z3 of
cas e 9:17 -cv- 807 28- KAM Document 1 En
~d on FLSD Docket 06/1 3/20 17 Pag
e 2.3 of 25

merely the lett er-o f the bargain. Evading

the spirit of the bargain and abusing the power
to specify tenns constitutes examples of bad
faith in the performance of contracts.
148. FAB was notified in writing on numerous
occasions of the errors by Plaintiff, and faile
d
time and time again to rectify the flawed serv
icing processes causing the incorrect data and
faulty reporting to continue,

149. FAB further breached the contractual cov

enant of good faith and fair dealing when
its
representatives stated to Plaintiff that the
errors had been corrected and issues rectified
whe n in fact they had not.

150. FAB, through its representatives, oon1inue

d to breach the contractual covenant of goo
d
faith and fair dealing by making materially
false assertions regarding the corrections and
rectification of servicing errors while aware
that FAB's agents could not ascertain whe
ther
or not they were true or, in the alternative, whi
le FAB's agents knew or should have known
that the statements were false and likely
to damage Plaintiff.
151. FAB knew that the continuation of such state
ments would interfere with Plai ntif fs ability
to establish creditworthiness, a necessary com
ponent for establishing payment alternatives
and financing as a principa1 guarantor of othe
r businesses.
152. In failing to disclose all infonnation as requ
ired by Jaw and requested by Plaintiff, FAB
willfully rendered imperfect perfonnance,
abused the power of the creditor in the HEL
OC
by unilaterally changing terms, failed
to cooperate and hindered Plaintiff's perform
ance,
and thus materially breached the HELOC befo
re Plaintiff's performance became due.
153. FAB further breached the HELOC and the
contractual covenant of good faith and fair
dealing contained therein by instituting flaw
ed boarding procedures, failing to provide
written notices to Plaintiff as required, unil
aterally changing the tenns of the loan, faili
ng

23
. cas e g:zo-cv-81728-DMM Docum
ent 17-14 ~~tered on FLSD Docket
10{21/2020 Pa@@ 24 if
cas e 9:17-cv-80728-KAM Document
1 Entered on FLSD Docket 06/13/20
17 Page 24 of 25

to remedy faulty payment calculations and

applications of payments received, starting
from
January 2015 through July 2016 that Plai
ntiff was late each month despite receivin
g
payments as directed, failing to provide info
rmation to the Plaintiff. as requested repeated
ly
to remedy any issue, and, ultimately, faili
ng to cooperate a11d interfering with Plaintiff's
continued performance under the HEWC.

154. Plaintiff has been seriously and significantly

banned for damages by Defendant's breach
of the HELOC in an amount to be proven at
trial, bm no less than $220,000.00.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, respectfully requ
ests that the Court:
1. Award such relief as 1he Court finds nece
ssary to redress injury to Plaintiff resulting
from
Defendant's violations of the FfC Act, the
FDCPA, and the FCRA, including but not
limited to, rescission or reformation of con
tracts, restitution, the refund ofmonies paid
, and
tbe disgorgement of ill-gotten gains;

2. Award Plaintiff monetary civil penaltie.s

for each violation of the FCRA as alleged
in this
Complaint;

3. Award Plaintiffmonetary civil penaltie

s for each violation ofthe FDCPA occurring within
the five years preceding the filing of this Com
plaint;
4. Award Plaintiff monetary civil pen
al~es in an amount no less than $220,00
0.00 for
violation of the FTC;

5. Award Plaintiff monetary damages for

Defendant's breach ofthe HELOC; and
6. Award Plaintiffthe costs ofbringing thi_
s action, as well as such other and addition
al relie f
as the Court may determine to be just and
proper.

24
- Case 9:20-cv-81728-DMM Document 17-14 Entered on FLSD
Docke t 10/21 /20z0 PB:ge 25 ef
25
Case 9:17-cv-80728-KAM Document 1 Entered on FLSD Docke .
t 06/13/2017 Page 25 of 25

RespectfoJly Submitted,
Date: June 13, 2017
Boca Raton, FL ::-
<
---- .._

LAURENCE S. SCHNEIDER, Pro Se

360 E. COCONUT PALM DRIVE
BOCA RATON, FL 33432
larry@sacapitalpartners.com

25