counter claim complaint based on securitization audit

IN THE CIRCUIT COURT OF THE 18th JUDICIAL CIRCUIT OF FLORIDA IN AND FOR SEMINOLE COUNTY

Case No 10-CA-OOOOIO-14-G CHARAN G KUMAR

ORIGINAL RECEIVED Counter-Plaintiff TInS IS A COpy

MARYANNE MORSE -v- LERK 0 THE CU bull S~M

WELLS FARGO BANK NA INC SAND CANYON CORPORATION fka Oater DEC

YL ~ q 2011

OPTION ONE MORTGAGE CORP SHAPIRO FISHMAN amp GACHE LLP GERALD SHAPIRO BARRY FISHMAN RONALD GACHE JESSICA CONTE NATALIE CURTS

Counter-Defendants ____________________________~I

FIRST AMENDED COUNTER-COMPLAINT

1 Counter-Plaintiff CHARAN G KUMAR hereby sues Counter-Defendants WELLS

FARGO BANK NA SAND CANYON CORPORATION flkla OPTION ONE MORTGAGE

CORP SHAPIRO FISHMAN amp GACHE LLP GERALD SHAPIRO BARRY FISHMAN

RONALD GACHE JESSICA CONTE and NATALIE CURTS

DEMAND FOR JURY TRIAL

2 Counter-plaintiff hereby demands a trial by jury of all issues so triable as a matter oflaw

TIJRlSDICTION

3 This is an action for damages brought for damages above the jurisdictional limit of this

court for violations of

1 Common Law Fraud II Conspiracy to Defraud III Florida Statutes seetion 55972 IV 15 USC l692k(d) (federal fair debt collection practices) V 15 USC 1641 (TILA) for which jurisdiction is conferred by 1640(e) VI 24 CFR 350021 RESPA) jurisdiction conferred by 12 USC 2614 VII Abuse of process

VENUE

4 Venue is proper in the County of Seminole because that is where the cause of action

accrued and that is also where the subject property is located pursuant to Florida Statutes section

47011

PARTIES Counter-Plaintiffs 5 Counter-Plaintiff CHARAN G KUMAR (hereafter Kumar) is a resident of the State

of Florida County of Seminole and he owns the property that is the subject of the complaint

Counter-Defendants 6 Counter-Defendant WELLS FARGO BANK NA (Wells Fargo) is an unknown

type of business entity doing business in the State of Florida Wells Fargo is also the plaintiff in

this action and has sued the counter-plaintiff for foreclosure of the subject property

7 Counter-Defendant SAND CANYON CORPORATION flkla OPTION ONE

MORTGAGE (Sand Canyon) is a Florida foreign registered corporation with its principal

place of business in California It has owned andor serviced thousands of mortgages that

originated in the State of Florida

2

8 Counter-Defendant SHAPIRO FISHMAN amp GACHE LLP (hereafter Shapiro amp

Fishman) is a Florida registered limited liability partnership Its actual as opposed to apparent

managing members are GERALD SHAPIRO BARRY FISHMAN AND RONALD GACHE

9 Counter-Defendant GERALD SHAPIRO (Shapiro) is an individual person who is a

Florida licensed attorney and a partner of Shapiro Fishman amp Gache LLP (Shapiro amp

Fishman) a Florida limited liability partnership acting as a law firm on behalf of Countershy

Defendant Wells Fargo On information and belief he is a resident of the State of Florida Gerald

Shapiro directed and controlled Shapiro amp Fishman He is sued in his individual capacity

10 Counter-Defendant BARRY FISHMAN (Fishman) is an individual person who is a



Defendant Wells Fargo On information and belief he is a resident of the State of Florida Barry

Fishman directed and controlled Shapiro amp Fishman He is sued in his individual capacity

11 Counter-Defendant RONALD GACHE (Gache) is an individual person who is a



Defendant Wells Fargo On information and beliefhe is a resident of the State of Florida

Ronald Gache directed and controlled Shapiro amp Fishman He is sued in his individual capacity

12 Counter-Defendant JESSICA CONTE (Conte) is a resident of the State of Florida and

is an employee attorney working for Shapiro amp Fishman and is sued in her individual capacity

13 Counter-Defendant NATALIE CURTS (Curts) is a resident of the State of Florida and


3

GENERAL ALLEGATIONS 14 All conditions precedent to the bringing ofthis action have been performed waived or

excused

15 Mr Kumar is an obligor on a certain federally related mortgage loan secured on his

residence in the State of Florida (Note reference to mortgage loans means the mortgage note

and security agreement) Mr Kumar does not know the identity of the true mortgagor and owner

and holder of the note but he i8 confident is not one of the defendants or any entity referenced in

this counter-complaint

16 Counter-Defendants Gerald Shapiro Barry Fishman and Ronald Gache agreed to create

and did create an enterprise where agents of Defendant Shapiro amp Fishman and Countershy

Defendant Sand Canyon (and possibly other entities) would create and execute false assignments

of mortgages on cases wherein Counter-Defendant Shapiro amp Fishman was the foreclosing

attorney because it resulted in millions of dollars in fees to Counter-Defendant Shapiro amp

Fishman and Counter-Defendant Sand Canyon These funds were reinvested in the various

entities of the enterprise to assure continued operation Counter-Defendant Shapiro amp Fishman

had an agreement with Counter-Defendant Sand Canyon wherein Counter-Defendant Shapiro amp

Fishmans agents would create these false assignments of mortgage then the Counter-Defendant

Shapiro amp Fishman agents would act as agents of Counter-Defendant Sand Canyon - with the

approval and consent of Counter-Defendant Sand Canyon - and execute those false assignments

of mortgage in order to create the appearance of a legitimate transfer of an interest in a mortgage

Counter-Defendant Sand Canyon went along with this conspiracy to defraud scheme because it

was paid money to do so When done on a grand scale this type of creation of fraudulent

assignments is known as robomiddotmiddotsigning Counter-Defendant Wells Fargo knew that false

interests in mortgages were being fraudulently created in Counter-Defendant Wells Fargos name

by Counter-Defendant Shapiro amp Fishman Counter-Defendant Wells Fargo was a party to the

conspiracy to defraud through its intentionally acquiescence in this arrangement because it

resulted in Counter-Defendant Wells Fargos successful foreclosures of Florida real property

This practice impacted interstate commerce because all the loans were federally related and

4

many of these properties were insured by federal government sponsored entities such as

FannieMae FreddyMac and the FHA

17 On March 182009 Dale M Sugimoto President of Counter-Defendant Sand Canyon

executed a Declaration under penalty ofperjury which was then filed in the United States

Bankruptcy Court in the East District of Louisiana Therein Sugimoto clearly stated on the

second page line 6 that Sand Canyon did not own any residential real estate mortgages

(Exhibit A)

18 On and after March 1 R 2009 as a pattern and practice Counter-Defendant Shapiro amp

Fishman and its agents continued to create and execute many fraudulent assignments of

mortgages on behalf of Counter-Defendant Sand Canyon Through this post March 18 2009

process Counter-Defendant Shapiro amp Fishman its agents and Counter-Defendant Sand

Canyon sold and transferred Counter-Defendant Sand Canyons alleged ownership interests in

subject mortgage loans to various plaintiffs in actions wherein Counter-Defendant Shapiro amp

Fishman were plaintiffs counsel

19 Counter-Defendants Shapiro amp Fishman its agents and Counter-Defendant Wells Fargo

used the US Mails and interstate wires to send these false and fraudulent assignments to various

defendants in foreclosure actions and to the courts for filing in order to convince the judges and

parties that Counter-Defendant Wells Fargo had a legitimate ownership interest in the subject

mortgage loans This falsely bolstered all the foreclosure cases improved debt collection and

assured judgments of foreclosure against these defendants

20 On or about January 8 2010 Counter-Defendant Wells Fargo through their attorneys

Counter-Defendant Shapiro amp Fishman and its agents filed a complaint for foreclosure in

Seminole county against Kumar This complaint is case number 10-CA-0000IO-14-G and it

was signed by Counter-Defendant Conte In the complaint Counter-Defendant Wells Fargo

falsely claimed that it obtained either the right to enforce the subject mortgage loan or that it

5

owned the subject mortgage loan by way of an assignment from Counter-Defendant Sand

Canyon

21 Counter-Defendant Conte was under an affirmative duty to make a reasonable

investigation of the facts to deternline whether or not the assignment of the mortgage upon which

case number Case No 1 O-CA-OOOO 1 0-14-G was based was true or false Her employer

Counter-Defendant Shapiro amp Fishman and their actual managing members Counter-Defendants

Gerald Shapiro Barry Fishman and Ronald Gache as Florida licensed attorneys were also under

an affirmative duty to ensure that proper policy and procedures were in place to permit their

attorneys to exercise discretion to reject pleadings that impaired candor to the tribunal and

parties However Counter-Defendants Gerald Shapiro Barry Fishman and Ronald Gache knew

that if reasonable investigative procedures were in place that it would make their scheme to

defraud very difficult if not impossible to carry out as attorneys exercising their own

independent judgment and ethics would very likely not file the fraudulent assignments and

complaints based thereon At the time that Counter-Defendant Conte signed this complaint she

knew or should have known the assignment was false Counter-Defendant Conte was a party to

the conspiracy to defraud because she signed the complaint regardless of its truth or falsity She

signed it because Counter-Defendants Shapiro amp Fishman Gerald Shapiro Barry Fishman and

Ronald Gache created either a written policy or an unwritten policy and a pattern ofpractice

wherein its attorneys employment would be negatively affected if those attorneys refused to sign

complaints merely because of false assignments and Counter-Defendant Conte didnt want her

employment to be negatively affected

22 After being served with the foreclosure complaint Mr Kumar advised Counter-

Defendant Shapiro amp Fishman and Counter-Defendant Conte that the foreclosure case was

clearly based on a fraudulent assignment of mortgage and that he demanded corrective action be

taken and the debt verified pursuant to the federal fair debt collection practices act Countershy

Defendant Conte intentionally failed to take corrective action to remove the false assignment of

mortgage from the court record and failed to advise the court and parties of the false nature of the

6

assignment of mortgage out of fear of her employment being negatively affected by Countershy

Defendants Shapiro amp Fishman Gerald Shapiro Barry Fishman and Ronald Gache

23 On or about March 262010 Counter-Defendant Curts sent written debt verification

through the US Mails to Mr Kumar which included copies ofdocuments purporting to validate

the alleged debt (Exhibit B) These documents were also signed by agents of Counter-Defendant

Sand Canyon These documents included a false assignment of the subject mortgage loan

executed by the dual agents of Counter-Defendant Sand Canyon and Counter-Defendant Shapiro

amp Fishman The debt validation letter was signed by Counter-Defendant Curts and it falsely

misrepresented that Counter-Defendant Wells Fargo owned and held an interest in Mr Kumars

mortgage loan

24 The false validation letter was intended to collect a debt not owed by Mr Kumar to

Counter-Defendant Wells Fargo and to Counter-Defendant Shapiro amp Fishman The purported

validation letter demanded payments of amounts not authorized by any contract or order of the

Court These include FORECLOSURE ATTORNEYS FEES AND COSTS of$353100

APPRAISAL FEE of$10000 BORROWER INTERVIEW FEE OF $6500 and

CORPORATE ADVANCE of $8000 The validation letter was also confusing because it

stated that Counter-Defendant Shapiro amp Fishman represented American Home Mortgage

Servicing Inc and it demanded that Mr Kumar make payoff to American Home Mortgage

Servicing Inc and not to Counter-Defendant Wells Fargo

25 Counter-Defendant Wells Fargo claims an interest in the Kumar mortgage loan as trustee

of the REMIC trust known as Option One Mortgage Loan Trust 2007-FXD2 (hereafter the

trust) However neither Counter-Defendant Wells Fargo or Counter-Defendant Sand Canyon

have or had an interest in the subject mortgage loan for several reasons First the trust closed on

March 1 2007 and the subject mortgage loan had not been transferred into the trust by the

closing date Second the trustee is prohibited from acting ultra vires to transfer the subject

mortgage loan into the trust after the closing date (Note The Servicing and Pooling Agreement

7

for the Trust can be found at the following website httpwwwsecinfocom

dqTm6u134chtmlstPage) Third the assignment of mortgage by Counter-Defendant Sand

Canyon is false Fourth the indorsements on the note are false fraudulent and unauthorized

26 Counter-Defendant Wells Fargo and its agents made negative credit references on Mr

Kumars credit they sent dunning letters to Mr Kumar claiming that it was the rightful owner of

his mortgage Mr Kumar relied on these misrepresentations to his detriment as he paid monies

to Counter-Defendant Wells Fargo The false assignment of mortgage was a material

misrepresentation designed to bolster the false belief in Mr Kumar that Counter-Defendant Wells

Fargo was the rightful owner of the Kumar mortgage When Mr Kumar questioned Countershy

Defendants Wells Fargo Shapiro amp Fishman and its agents about the legitimacy of Countershy

Defendant Wells Fargos ownership in his mortgage those Counter-Defendants responded with

further dunning letters and misrepresentations that the debt owed to Counter-Defendant Wells

Fargo was legitimate

27 Mr Kumar initially relied upon these false and fraudulent misrepresentations to his

detriment when he conveyed this information to his wife and it caused extreme marital discord

between them as it was learned that he had made a financially devastating error in failing to

ensure that their mortgage was held by its true owner by making payments to Wells Fargo when

in fact those were wasted funds that were not going to the true owner and that the ownership of

their residence was at substantial risk This resulted in great emotional suffering loss of

companionship loss of enjoyment of life loss of consortium disruption to his children with

uncertainty as to where they would live and go to school and physical discomfort in loss of

appetite loss of sleep and irritable digestive symptoms

COUNT I COMMON LAW FRAUD

Counter-Plaintiff Kumar v All Counter-Defendants

28 Counter-plaintiff Kumar reaffIrms and re-alleges paragraphs 1 through 27 herein above as

if set forth fully herein below

8

29 At all times material hereto counter-defendants Sand Canyon Wells Fargo Shapiro amp

Fishman Gerald Shapiro Barry Fishman Ronald Gache Jessica Conte and Natalie Curts had

actual knowledge that their written statements as to alleged ownership of Mr Kumars mortgage

loan by Wells Fargo the written statements as to the assignment of mortgage the legal

entitlement to demand monies from Mr Kumar and institute foreclosure proceedings were false

statements of material fact which were false when made and known by said counter-defendants

to be false when made

30 Counter-defendants Shapiro amp Fishman Gerald Shapiro Barry Fishman and Ronald

Gache directed and controlled the conduct of counter-defendants Jessica Conte and Natalie

Curts who made the subject false statements with the specific intent that Mr Kumar rely thereon

and with the separate specific intent which separate specific intent was unknown to Mr Kumar

at the time to defraud Mr KUill ar

31 Mr Kumar reasonably rdied upon the written statements of counter-defendants and acted

thereon including but not limited to paying monies to Counter-Defendant Wells Fargo advising

his spouse of the financially devastating error he made in reliance upon the material

misstatements

32 As a direct and proximate result of the actions and course of conduct of Counter-

Defendants Mr Kumar has suffered damages

33 The fraudulent conduct engaged in by the Counter-Defendants constitutes a separate and

independent tort separate and apart from any breach of any contract

34 The deliberate and concerted actions engaged in by the counter-defendants as set forth

above and under the circumstances set forth above constitutes the type of fraud for which

attorneys fees are awarded and as such Plaintiffs demand the assessment of their attorneys fees

9

against the Defendants Baya v Central and Southern Florida Flood Control District 184 So2d

501 (Fla 2d DCA 1966)

35 WHEREFORE Counter-Plaintiff Kumar demands the entry of Final Judgment against

the Counter-Defendants for compensatory damages interest costs attorneys fees and any other

and further relief which is just and proper under the totality ofthe circumstances

COUNT II CONSPIRACY TO DEFRAUD


36 Counter-plaintiff Kumar reaffirn1s and re-alleges paragraphs 1 through 27 herein above as


37 At all times material hereto Counter-Defendants Sand Canyon Wells Fargo Shapiro amp

Fishman Gerald Shapiro Barry Fishman Ronald Gache Jessica Conte and Natalie Curts

agreed between and among themselves and in combination with each other and various agents

as to each overt act in furtherance of the conspiracy and enterprise to engage in unlawful actions

for a common purpose to wit to perpetrate a fraud upon Mr Kumar through fraudulent written

representations as to the ownership of the mortgage amounts due thereon threats of foreclosure

and fraudulent foreclosure filings whereby the Counter-Defendant Wells Fargo would obtain the

use and benefit under fraudulent pretenses of Mr Kumars real property at the expense of Mr

Kumar and without compensating Mr Kumar therefor to unlawfully convert Mr Kumars real

property and permanently deprive him thereof and to cause all deleterious consequences of the

Counter-Defendants actions to be saddled upon Mr Kumar which consequences include but are

not limited to the loss of real property loss of money the incurring of expenses and the adverse

effects of claimed defaults and foreclosures placed on his and his families emotional stability

and the loss of Mr Kumars credit as negative reports were made thereon by the Countershy

Defendants

10












at the time to defraud Mr Kumar

40 Mr Kumar reasonably relied upon the written statements of counter-defendants and acted



misstatements

41 As a direct and proximate result of the overt concerted and conspiratorial actions of the

counter-defendants counter-plaintiff has suffered significant damages well in excess ofthe

jurisdictional limit of this Court

42 The conspiracy to defraud and convert engaged in by the counter-defendants constitutes a

separate and distinct independent tort which is separate and apart from any breach of any

contract



11

attorneys fees are awarded and as such counter-plaintiff demands the assessment of attorneys

fees against the counter-defendants Baya v Central and Southern Florida Flood Control

District 184 So2d 501 (Fla 2d DCA 1966)

44 WHEREFORE Counter-Plaintiff Kumar demands the entry afFinal Judgment against

the Defendants for compensatory damages interest costs attorneys fees and any other and

further relief which is just and proper under the totality of the circumstances

COUNT III VIOLATION OF FLORIDA CONSUMER COLLECTION PRACTICES ACT

FLORIDA STATUTES SECTION 55972 et seq Counter-Plaintiff Kumar v All Counter-Defendants

45 Counter-Plaintiff Kumar reaffirms and re-alleges paragraphs 1 through 27 herein above

as if set forth fully herein below

46 FS 55972(9) provides (in pertinent part)

Prohibited practices generally In collecting consumer debts no person

shall

(9) Claim attempt or threaten to enforce a debt when such

person assert(s) the existence of some other legal right when such person

knows that the right does not exist




loan by Wells Fargo the written statements as to the assignment ofmortgage the legal




12

48 All Counter-Defendants have claimed attempted to enforce a debt or threatened to

enforce a debt when such persons knew the debt was not legitimate and did not exist They

asserted the existence of the right to enforce the debt in the name of Counter-Defendant Wells

Fargo when they knew that the right did not exist

49 As a direct and proximate result of the actions of the Counter-Defendants Mr Kumar has

suffered significant damages vell in excess of the jurisdictional limit of this Court




COUNT IV VIOLATION OF 15 USc sect1692

Federal Fair Debt Collection Practices Act (FDCPA) Counter-Plaintiff Kumar v All Counter-Defendants



52 Counter-Plaintiff Kumar is a consumer within the meaning of the FDCPA 15 USC

sect1692a(3)

53 Counter-Defendants Sand Canyon Wells Fargo Shapiro amp Fishman Gerald Shapiro

Barry Fishman Ronald Gache Jessica Conte and Natalie Curts are debt collectors within the

meaning of the FDCPA 15 USC sectl692a(6)




13



statements of materia 1 fact which were false when made and known by said counter-defendants


55 These Counter-Defendants and their agents violated 15 USC sect1692d by engaging in

conduct the natural consequence of which is to harass oppress or abuse any person and which

did harass oppress and abuse Mr Kumar by falsely representing the character amount or legal

status of the debt (15 USC sect1692e(2raquo by sale or transfer of an interest in the debt that caused

the consumer to lose any claim or defense to payment of the debt and in particular by

obfuscation of the true creditor (15 USC sect1692e(6raquo by communicating or threatening to

communicate to any person credit information which is known or which should be known to be

false including the failure to communicate that a disputed debt is disputed (15 USc sect 1692e

(8raquo by the use of any false representation or deceptive means to collect or attempt to collect any

debt or to obtain information concerning a consumer (15 USC sect1692e(10) by the collection

of any amount (including any interest fee charge or expense incidental to the principal

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

pern1itted by law (15 USC sect 1692f(1raquo by taking or threatening to unlawfully repossess or

disable the consumers property (15 USc sect 1 692f(6raquo by within five days after the initial

communication with counter-plaintiff in connection with the collection of any debt failing to

send counter-plaintiff a written notice containing a statement that unless the consumer within

thirty days after receipt of the notice disputes the validity of the debt or any portion thereof the

debt will be assumed to be valid by the debt collector a statement that if the consumer notifies

the debt collector in writing within the thirty-day period that the debt or any portion thereof is

disputed the debt collector will obtain verification of the debt or a copy of a judgment against

the consumer and a copy of such verification or judgment will be mailed to the consumer by the

debt collector and a statement that upon the consumers written request within the thirty-day

period the debt collector will provide the consumer with the name and address of the original

creditor if different from the current creditor (15 USc sect 1692g)

14

56 WHEREFORE Counter-Plaintiff Kumar demands judgment for damages against

Counter-Defendants Sand Canyon Wells Fargo Shapiro amp Fishman Gerald Shapiro Barry

Fishman Ronald Gache Jessica Conte and Natalie Curts for actual or statutory damages and

punitive damages attorneys DeS and costs pursuant to 15 DSC sect1 692k

COUNT V VIOLATION OF TRUTH IN LENDING ACT (TILA)

15 USC sect1641 Counter-Plaintiff Kumar v Counter-Defendant Wells Fargo



58 15 USc sect1641(g) requires (1) In general In addition to other disclosures required by this subchapter not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer includingshy(A) the identity addres telephone number of the new creditor (B) the date of transfer (C) how to reach an agent or party having authority to act on behalf of the new creditor (D) the location of the place where transfer of ownership of the debt is recorded and (E) any other relevant iufornlation regarding the new creditor

59 Counter-Defendants Wells Fargo failed to provide Mr Kumar with notice of an

assignment of the mortgage loan in violation of 15 USC sect1641(g)


Counter-Defendant Wells Fargo for damages fees and costs as provided by law pursuant to 15

USC sect1640(a)

COUNT VI REAL ESTATE SETTLEMENT

PROCEDURES ACT (RESPA) 24 CPR 350021(d)

15

Counter-Plaintiff Kumar v Counter-Defendants Wells Fargo and Sand Canyon



62 Counter-Defendant Sand Canyon represented that Counter-Defendant Sand Canyon

transferred the note and mortgage andlor the servicing of the note and mortgage to Countershy

Defendant Wells Fargo However neither of these Counter-Defendants ever sent and Mr

Kumar never received notice of transfer or assignment of the note and mortgage or of the

servicing of the note and mortgage

63 Counter-Defendants Wells Fargo and Sand Canyon failed to provide any notice to Mr

Kumar of a transfer in servicing in violation of 24 CFR sect 350021 (d) which requires

Notices of Transfer loan servicing (1) Requirement for notice (i) Except as provided in this paragraph (d) (1 )(i) or paragraph (d)(1 )(ii) of this section each transferor servicer and transferee servicer of any mortgage servicing loan shall deliver to the borrower a written Notice of Transfer containing the information described in paragraph (d)(3) of this section of any assignment sale or transfer of the servicing of the loan The following transfers are not considered an assignment sale or transfer of mortgage loan servicing for purposes of this requirement if there is no change in the payee address to which payment must be delivered account number or amount ofpayment due (A) Transfers between affiliates (B) Transfers resulting from mergers or acquisitions of servicers or subservicers and (C) Transfers between master servicers where the subservicer remains the same

(2) Time of notice (i) Except as provided in paragraph (d)(2)(ii) of this section (A) The transferor servicer shall deliver the Notice of Transfer to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan (B) The transferee servicer shall deliver the Notice of Transfer to the borrower not more than 15 days after the effective date of the transfer and (C) The transferor and transferee servicers may combine their notices into one notice which shall be delivered to the borrower not less than 15 days before the effective date of the transfer of the servicing of the mortgage servicing loan (ii) The Notice of Transfer shall be delivered to the borrower by the transferor servicer or the transferee servicer not more than 30 days after the effective date of the transfer of the servicing of the mortgage servicing loan in any ca3e in which the transfer of servicing is preceded by (A) Termination of the contract for servicing the loan for cause (B) Commencement of

16

proceedings for bankmptcy of the servicer or (C) Commencement ofproceedings by

the Federal Deposit Insurance


Counter-Defendants Wells Fargo and Sand Canyon for damages fees and costs as provided by

law

COUNT VII ABUSE OF PROCESS

Counter-Plaintiff Kumar v Counter-Defendant Wells Fargo Shapiro amp Fishman and Conte



66 Counter-Defendants Wells Fargo Shapiro amp Fishman and Conte made an illegal

improper or perverted use ofprocess

67 Counter-Defendants Wells Fargo Shapiro amp Fishman and Conte had an ulterior motive or

purpose in exercising the illegal improper or perverted process

68 Counter-Plaintiff was injured as a result of Counter-Defend ants actions

69 Counter-Defendants have no legal justification to bring an action to try to foreclose upon

his property

70 WHEREFORE Plaintiflprays for judgment against Counter-Defendants Wells Fargo

Shapiro amp Fishman and Conte as follows

I General Damages II Consequential Damages III Actual Damages IV Costs

V Attorneys fees if and when an attorney is hired to represent Plaintiff and

17

VI Such other relief as this Court deems just and proper I

Char

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing is being furnished by US mail on the 9th day of December 2011 to Ian Luthringer the law finn of Hinshaw amp Culbertson LLP 50 N Laura St Ste 2200 Jacksonville Florida 32202-3625 for WELLS FARGO BANK NA and to Jessica Conte of Shapiro Fishman amp Gache LLP 4630 Woodland Corporate Blvd Suite 100 Tampa FL 33614 for WELLS FARGO BANK NA INC SAND CANYON CORPORATION j1ka OPTION ONE MORTGAGE CORP SHAPIRO FISHMAN amp GACHE LLP GERALD SHAPIRO BARRY FISHMAN RONALD GACHE JESSICA CONTE and NATALIE CURTS

~s~

18

TIJRlSDICTION

3 This is an action for damages brought for damages above the jurisdictional limit of this

court for violations of

1 Common Law Fraud II Conspiracy to Defraud III Florida Statutes seetion 55972 IV 15 USC l692k(d) (federal fair debt collection practices) V 15 USC 1641 (TILA) for which jurisdiction is conferred by 1640(e) VI 24 CFR 350021 RESPA) jurisdiction conferred by 12 USC 2614 VII Abuse of process

VENUE

4 Venue is proper in the County of Seminole because that is where the cause of action

accrued and that is also where the subject property is located pursuant to Florida Statutes section

47011

PARTIES Counter-Plaintiffs 5 Counter-Plaintiff CHARAN G KUMAR (hereafter Kumar) is a resident of the State

of Florida County of Seminole and he owns the property that is the subject of the complaint

Counter-Defendants 6 Counter-Defendant WELLS FARGO BANK NA (Wells Fargo) is an unknown

type of business entity doing business in the State of Florida Wells Fargo is also the plaintiff in

this action and has sued the counter-plaintiff for foreclosure of the subject property

7 Counter-Defendant SAND CANYON CORPORATION flkla OPTION ONE

MORTGAGE (Sand Canyon) is a Florida foreign registered corporation with its principal

place of business in California It has owned andor serviced thousands of mortgages that

originated in the State of Florida

2























3


excused


























4







(Exhibit A)



















5


Canyon


























6










mortgage loan

















7



























8
















misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











12















sect1692a(3)







13





























14














USC sect1640(a)



15













16





law











his property





17


Char



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18























3


excused


























4







(Exhibit A)



















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Canyon


























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mortgage loan

















7



























8
















misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







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14














USC sect1640(a)



15













16





law











his property





17


Char



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18


excused


























4







(Exhibit A)



















5


Canyon


























6










mortgage loan

















7



























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misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







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14














USC sect1640(a)



15













16





law











his property





17


Char



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(Exhibit A)



















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Canyon


























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mortgage loan

















7



























8
















misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







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14














USC sect1640(a)



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16





law











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17


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6










mortgage loan

















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misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







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14














USC sect1640(a)



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16





law











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17


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mortgage loan

















7



























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misstatements








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501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











12















sect1692a(3)







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14














USC sect1640(a)



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16





law











his property





17


Char



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18



























8
















misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







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14














USC sect1640(a)



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16





law











his property





17


Char



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18
















misstatements








9


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






contract



11













shall











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sect1692a(3)







13





























14














USC sect1640(a)



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16





law











his property





17


Char



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18


501 (Fla 2d DCA 1966)






















Defendants

10
















misstatements






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11













shall











12















sect1692a(3)







13





























14














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counter claim complaint based on securitization audit

Documents

financially devastating error

sand canyon corporation

defendant sand canyon

times material hereto

employee attorney working

defendant wells fargo

wells fargo bank

defendants sand canyon