BAC HOME LOANS SERVICING, LP and BANK OF AMERICA, NA,

Plaintiff,

v.

Defendants.

VERIFIED COMPLAINT

Comes now the Plaintiff, Linn B. Taylor (hereinafter referred to as "Plaintiff') by and through counsel, and files its cause(s) of action pursuant to T.C.A. 29-14-101 against BAC HOME LOANS SERVICING, LP. (hereinafter referred to individually as "BAC") and BANK OF AMERICA, NA (hereinafter referred to collectively as "Defendants") and states the following:

I. PARTIES

1. Plaintiff, Linn B. Taylor is a citizen of Davidson County, currently residing at 808

Bettie Dr., Old Hickory, TN 37138.

2. The subject property that the underlying dispute arises is located at 808 Bettie Dr.,

Old Hickory, TN 37138, in Davidson County.

3. Defendant, BAC Home Loan Servicing LP., principal offices are located at 6400

Legacy Drive Plano, TX 75024 USA.

4. Defendant, Bank of America, NA principal offices are located at 100 North

Tryon Street, Ste 220, Charlotte, NC 28202

II. VENUE

This Court has venue in that the issues under dispute regarding the subject property and damages have all transpired in Old Hickory, TN, County of Davidson, State of Tennessee.

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III. NOTICE TO DEFENDANT OF REQUEST FOR TEMPORARY - RESTRAINING ORDER AND INJUCTIVE RELIEF

A copy of this verified complaint, application and request for temporary restraining order was sent by Certified Mail Postage Pre-paid on January 18,2011; to Defendants' offices and their registered agent, CT Corporation System 800 S. Gay Street Suite 2021, Knoxville, TN 37929 USA.

IV. LEGAL DESCRIPTION OF PROPERTY

Being Lot. No. 42 on the Plan of Section III, The Knoll of record in Plat Book 2854, Page 110, Register's Office for Davidson County, Tennessee, to which Plan reference is hereby made for a more complete description of the property.

Being the same property conveyed to Larry Smith by Warranty Deed from Michael F. Montgomery, of record in Book 11651, Page 798, Register's Office for Davidson County, Tennessee dated September 1, 1999, and recorded September 7, 1999.

V. FACTS

1. Plaintiff, Mr. Linn Taylor purchased the above-referenced property on July 13, 2007, recorded in the Davidson County, Register of Deeds office in Tennessee, Instrument No. 20070723-0087205. See Warranty Deed, attached hereto as Exhibit No.1; See Taylor Affidavit, attached hereto as Exhibit No.2.

2. Plaintiff shares his home with his long-time companion, Ms. Etta J. Schuler who is 70 years old.

3. In December of 2008, Plaintiff was laid off from his employment at The Parkes Company where he had been employed for the prior four and a half years as a truck driver. See Exhibit No.2, Taylor Affidavit, '1\6. Shortly thereafter, Mr. Taylor sought a loan modification and was given a reduced payment of $316.82 during a trial period to begin the loan modification process on September 15, 2009. See Trial Period Offer dated 9115/09, attached hereto as Exhibit No.3.

4. On September 19, 2009, the reduced trial period payment was made by electronic check no. 201 to Bank of America. See Copy of Electronic Check, attached hereto as Exhibit No.4. Plaintiff was successful in completing the trial period.

5. On October 11, 2009, Plaintiff authorized Ms. Etta J. Schuler to act on his behalf as his personal representative and seek a loan modification with BAC Home Loans in an effort to save his home. See Correspondence to Bank Of America dated 10/11/09, attached hereto as Exhibit No.5; See Taylor Affidavit, '1\8.

6. Ms. Schuler spent a lot of time on the telephone with the Defendants attempting to resolve all outstanding issues and to secure a loan modification on Plaintiffs behalf only

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- to have the Defendants breachtheloaninodification agreement. See Affidavit of Ms. -Etta Jean Schuler, attached hereto as Exhibit No.6.

7. On April 6, 2010, Mr. Taylor received a loan modification offer from Defendants. See Loan Modification from Bank of America dated 4/6/2010 attached hereto as Exhibit No. 7.

8. On May 7,2010, Plaintiff received a second notification from Bank of America with an offer for a new loan modification which reduced Plaintiff s mortgage payment to Eight Hundred and Seventy-Two Dollars and Forty-Seven Cents ($872.47). See Loan Modification Agreement dated 5/7/1 0 attached hereto as Exhibit No.8. Plaintiff accepted that loan modification offer on May 14, 2010 and mailed an acceptance and a payment of Five Hundred and Thirty-Six Dollars and Eighteen Cents ($536.18) to BAC Home Loans. See Cashier's Check Receipt and Regions Bank documentation of 5/17/2010 attached hereto as Exhibit No.9. Plaintiff followed that payment with the escrow payment of approximately Three Hundred and Thirty-Six Dollars and TwentyNine Cents ($336.29). See Cashier's Check Receipt and Regions Bank documentation of 6/7/10 attached hereto as Exhibit No. 10.

9. The first payment under the new terms per the loan modification agreement was paid on July 1, 2010 in the amount of $872.47. That payment was accepted and cashed by Defendants. See Copy of Check No. 5193 in the amount of $872.47, attached hereto as Exhibit No. 11.

10. The second payment under the new terms per the loan modification agreement was made in August, 2010 in the amount of $872.47and was accepted and cashed by Defendants. See Copy of Check No. 5199 in the amount of $872.47, attached hereto as Exhibit No. 12.

11. The third payment was made in September, 2010 and was returned to Plaintiff. See Copy of Check No. 5203 in the amount of $872.47 and return information, attached hereto as Exhibit No. 13.

12. The fourth payment was made on October 24, 2010 and was returned to Plaintiff. See Check No. 5207 in the amount of $872.47 and return information, attached hereto as Exhibit No. 14.

13. Defendants' customer service representatives never provided a proper answer, response or solution regarding the initial acceptance of mortgage payments and the sudden rejection of those payments. Mr. Taylors' personal representative, Ms. Etta Schuler called on numerous occasions to inquire as to why checks were being returned and the Defendants' customer service representatives had no reasonable response to the inquiries. See Affidavit of Ms. Etta Jean Schuler, ~14.

14. Plaintiffs personal representative, Ms. Schuler, called Defendants' customer service representatives to inquire as to why the checks were being returned and they responded

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that they were not accepting the second modification agreement and were going to honor the first loan modification agreement (that Plaintiff never entered into). When they were asked why they had already honored the second loan modification and accepted the payments under the second loan modification, the customer service representative responded as follows: "we don't have to accept payments if we don't want to." The representative on the telephone responded further that "we never tum down a payment." See Schuler Affidavit, ~14.

15. On December 16, 2010, Defendants sent Plaintiff a letter which stated the following:

"Our records indicate that you recently became more than three months behind on your Home Affordable Modification Program CHAMP) payments. This means you are no longer in "good standing". As of December 16, 2010, your past due amount is $15573.62."

See Letter from Bank of America, dated 12116/2010, attached hereto as Exhibit No. 15. This statement was false as Plaintiff made his modification payments per the agreement. Plaintiff made the first modification payment of $872.47 in July, 2010. Additionally, Plaintiff made the second modification payment of $872.47 in August, 2010. Both of these payments were accepted, processed and cashed by Defendants. Subsequent payments under the modification agreement were rejected by Defendants after the modification was in place and payments had already been accepted. Plaintiff s September, 2010 payment was rejected and Plaintiffs October, 2010 payment was rejected.

16. On December 27, 2010, Plaintiff received a Notice of Trustee's Sale from Wilson & Associates, PLLC scheduling a foreclosure on his home for January 26, 2011 even after he had abided by the terms of the loan modification agreement with BAC Home Loans. See Foreclosure Notice dated 12/27/10, attached hereto as Exhibit No. 16.

17. Defendants' representatives have caused a great deal of confusion by their handling/mishandling of Plaintiff s loan which has caused Plaintiff a great deal of stress and anxiety. See Taylor Affidavit, ~19.

18. Initially, Defendants were willing to work with Plaintiff in an attempt to save his home but after payments had been accepted under the terms of the loan modification agreement, Defendants began rejecting the payments without proper explanation. See Taylor Affidavit, ~~14-15; See Schuler Affidavit, ~13.

19. Defendants actions could be the result of an accident and/or mistake.

20. Plaintiff has the ability to pay the mortgage amount that was agreed upon by the parties in the loan modification agreement and wants the opportunity to pay to keep his home. See

Taylor Affidavit, ~22.

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-Zf. - ForeclosinguponPlaintiff's home when Plaintiff has in good faith operated under an agreement with Defendants to pay a modified payment would result in a hardworking American citizen losing his piece of the American dream because of an accident or mistake on the part of Defendants that equity can cure and remedy.

VI. NATURE OF CAUSES OF ACTION

1. Declaratory RelieflRestraining Order: Pursuant to TCA § 29-14-101, et seq, Plaintiff

requests that this Honorable Court declare breach of the Loan Modification Agreement and grant

Plaintiff's request for Defendants BAC HOME LOANS SERVICING, LP. and BANK OF

AMERICA, NA, to be enjoined from seeking possession of the subject property based upon

provisions set forth in Held v. Tennessee, whereas the enforcement of a mortgage or trust deed

will be enjoined and set aside ... on application of the maker. ... (2) when there was has been a

total failure of consideration .... (3) when the complainant is not bound, by reason of some

accident, or mistake in its execution against Equity will relieve. 448 S.W. 2d 413. Plaintiff will

prove that Defendants, accidentally or mistakenly have scheduled a foreclosure on its property

without considering the payments made towards a loan modification agreement offered by

Defendants and accepted by Plaintiff. Based on the alleged accident or mistake of beginning

foreclosure proceedings on its property, Plaintiff respectfully requests this Honorable Court for a

temporary restraining order against Defendants for it to refrain from foreclosing on the subject

property and force Defendants to maintain the status quo until further resolution of this lawsuit

and further orders of this court.

Plaintiff will suffer irreparable harm if the pending foreclosure is allowed to go forward

because he will lose the home that he has worked his entire life to obtain. Plaintiff has acted in

good faith in relying upon the representations of Defendants and paying the modified loan

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amount. "Addirionally, Plaintiff has "detrimentally relied on those representations made by - Defendants in the loan modification process. See Taylor Affidavit, ~21.

2. Breach of Contract/Breach of Loan Modification Agreement: Defendants have breached the terms of the loan modification agreement and have acted in bad faith by proceeding with foreclosure. Further, Plaintiff will show that he complied with the terms of the loan modification agreement with Defendants and Defendants failed to honor its agreement by first accepting Plaintiffs payments and then rejecting Plaintiffs payments and subsequently scheduling his home for a foreclosure sale on January 26, 2011. Moreover, Plaintiff will show that Defendants failure to consider the payments made on the loan modification agreement, Defendants' rejection of some payments and its subsequent scheduled foreclosure of the subject property is a mistake or accident upon which equity has the power to relieve. Plaintiff will be irreparably harmed if the foreclosure is allowed to go forward without court intervention.

3. Violation of Tennessee Consumer Protection Act: Defendants' actions violate

the Tennessee Consumer Protection Act ("T.C.P.A.") pursuant to T.C.A. 47-18-101 et. seq. by their use of unfair and deceptive practices in their handling and/or mishandling of Plaintiffs loan modification and subsequent breach of the loan modification agreement. The T.C.P.A. applies to any "act or practice which is unfair or deceptive to the consumer or to any other person." Tenn.Code Ann. § 47-18-104(b)(27). The facts outlined above give rise to a claim under the T.C.P.A. because Defendants' actions have been grossly unfair and deceptive in that Plaintiff mistakenly believed that a loan modification was in place based upon Defendants' actions, communications and documents.

4. Monetary Judgment: Plaintiff seeks a judgment for damages in the amount of

$100,000.00 heretofore caused by Defendants, BAC HOME LOANS SERVICING, LP. and

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BANK OF AMERICA, NA including but not limited to reasonable attorney fees and punitive damages due to Defendants' actions described above.

s. Negligence: As a result of Defendants' lack of a duty of care, Plaintiff will

suffer the loss of his home through the scheduled foreclosure sale.

6. Punitive Damages: Due to Defendants' breach of the loan modification

agreement and its failure to apply the payments accurately to his mortgage, its negligence, and the scheduled foreclosure sale, Defendants, should be compelled to pay punitive damages for their actions and be ordered to stop the upcoming foreclosure sale of Plaintiffs property.

PRAYERS

WHEREFORE, Plaintiff prays:

a. pursuant to TCA Section 29-14-101, et seq, that this Honorable Court declare that

Defendants have breached the loan modification agreement and grant Plaintiffs request for Defendants to be enjoined and restrained from foreclosing, gaining possession, encumbering, selling, conveying or otherwise damaging the subject property until further resolution of this lawsuit and further orders of this court;

b. that upon entry of judgment that all temporary restraining orders or injunction be

made permanent;

c. that Defendants be enjoined from foreclosing on the subject property based upon

its accident or mistake in its breach of the loan modification agreement entered into between the

parties;

d. that Defendants be held liable to Plaintiff for violating the Tennessee Consumer

Protection Act;

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e. thatDefendants 'be subjecttopunitive damages under a bifurcated trial for breach ---

of the loan modification agreement and their failure to honor the agreement that has resulted in

Plaintiff s property being scheduled for foreclosure;

f. that a judgment be entered in favor of the Plaintiff against Defendants for all

causes of actions contained in this Verified Complaint in the amount of $100,000.00 including

but not limited to, reasonable attorney fees, and expenses incurred by the Plaintiff in

commencing this action;

g. for such other and general relief as to which the Court shall find Plaintiff entitled.

Respectfully submitted,

~Chal/;~#

BELL & KINSLOW, PLiC Rhonda Scott Kinslow, BPR# 019863 Rachel L. Bell, BPR# 024075

2109 Buena Vista Pike

Nashville, TN 37218

(615) 256-3353 office

(615) 256-3331 fax Rachel!albellkinslow.com Rhonda@bellkinslow.com

Attorneys for Plaintiff

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