IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

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1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO American Mortgage Company Case No Plaintiff Judge Janet R. Brown v. DEFENDANT S ANSWER COUNTERCLAIM AND THIRD PARTY COMPLAINT Vicki Smith, et. al. Defendant/Third Party Plaintiff v. GL National Mortgage Company 444 West Main Street Cleveland, OH and Nick Sawyer 555 West Main Street Cleveland, OH Now comes Defendant, Vicki Smith, by and through counsel and for her Answer, states: 1. As to Paragraphs 1,1, 2 and 3 of Plaintiff s complaint, Defendant admits that she executed a promissory note and mortgage. However, she denies for want of knowledge whether the note and mortgage attached to Plaintiff s complaint are that note and mortgage. Defendant denies being in default under the terms of the note and mortgage, that the balance was rightfully and correctly accelerated, as well as all other allegations in Paragraph s 1, 1, 2 and 3 not specifically admitted, herein. 2. Defendant states that she is, and was, unmarried for all relevant times, herein. Further,

2 Defendant denies all other allegations not specifically admitted, herein. AFFIRMATIVE DEFENSES 3. Plaintiff s claims are barred by the applicable statute of limitations. 4. Plaintiff s claims are barred by laches. 5. Plaintiff s claims are barred by estoppel. 6. Plaintiff s claims are barred by the doctrine of unclean hands. 7. Plaintiff s claims are barred by waiver. 8. Plaintiff s claims are barred by its own negligence. 9. Plaintiff is not the real party in interest. 10. Plaintiff has not joined all parties that are necessary to this litigation. 11. Plaintiff has failed to state a claim upon which relief can be granted. 12. Plaintiff s claims are barred by the wrongful acts of its employees or agents. 11. Plaintiff has failed to comply with the terms of the note and mortgage, when accelerating the balance due, as prayed for in the complaint. COUNTERCLAIMS COUNT I (HOEPA DISCLOSURES 12. Paragraphs 1 through 11 are hereby realleged and reasserted as if fully rewritten, herein. 13. Defendant, Ms. Vicki Smith ( Smith executed a note and mortgage in favor of American Mortgage Company ( American on or about December 17, 2002 ( The Loan. 14. Because American is a creditor and Smith is a consumer, as defined by 15 U.S.C (f and (h, respectively, The Loan is covered by The Truth-In-Lending Act, 15 U.S.C et. seq. ( TILA. 15. The Loan is contemplated by 15 U.S.C (aa(1(b(i, because the total points and

3 fees payable by Smith at closing exceeded 8% of the total loan amount. As such, The Loan was subject to the requirements of 15 U.S.C (Which requirements were added to TILA, as part of an amendment entitled the Home Ownership Equity and Protection Act, or HOEPA 16. Because the prepaid finance charges in the loan were, more than 8% of the amount financed, American was required to submit certain disclosures to Smith. Specifically, American was required to provide, in conspicuous type size the following language: You are not required to complete this agreement merely because you have signed a loan application. And If you obtain this loan, the lender will have a mortgage on your home. You could lose your home, and any money you have put in to it, if you do not meet your obligations under the loan (15 U.S.C (a 17. Although these disclosures were required to be given to the borrower, not less than three days prior to the closing of the transaction (15 U.S.C (b(1, they were not. 18. Because the disclosures mentioned in Para 16, above, were not given to Smith in a timely fashion, (or, as in this case, not at all she has the right to formally rescind the transaction pursuant to 15 U.S.C (15 U.S.C (j. (Which she has done, concurrent with the filing of this Answer. (Rescission letter attached hereto as exhibit A. 19. Because American did not comply with the requirements of TILA enumerated above, Smith is entitled to formally rescind the transaction, to statutory damages, actual damages, the return of all finance charges and fees paid by the consumer, the return of all monthly payments under the loan and reasonable attorney fees, according to 15 U.S.C COUNT II (MISCALCULATION TOLERANCE ECLIPSED 20. Paragraphs 1 through 19 are hereby realleged and reasserted as if fully rewritten, herein. 21. Once a loan is determined to be contemplated by TILA, the lender is forbidden from understating the prepaid finance charges by predetermined amounts.

4 22. American understated the applicable prepaid finance charges in the loan by more than the allowable amount. 23. Because of the miscalculation mentioned in Para 18, above, Defendant is entitled to formally rescind the transaction, to statutory damages, actual damages and reasonable attorney fees. THIRD-PARTY COMPLAINT (BACKGROUND FACTS 24. Paragraphs 1 through 23 are hereby realleged and reasserted as if fully rewritten, herein. 25. Nick Sawyer is a mortgage broker who regularly transacts business as a mortgage broker in Cuyahoga County, Ohio. 26. Sawyer was involved in the loan, on behalf of Defendant Smith, as a mortgage broker, while working for GL National Mortgage Company. 27. Sawyer convinced Smith to refinance her house and enter into the loan, promising, among other things, a lower interest rate than the one she was currently obligated for. 28. Sawyer convince Smith to enter into the loan, merely to benefit himself in the form of broker fees and other compensation that was to arise from Smith entering into the loan. 29. The closing of the loan took place in Sawyer s office, rather than the title company address that is indicated on the loan documents. 30. Sawyer, who is intimate with the characteristics, requirements and workings of the consumer lending industry and who has knowledge superior to Defendant Smith in matters of the type that is the subject of Plaintiff s complaint, used his position as a broker, previous acquaintance and then current part-time employer of Smith, to convince her to execute the documents that comprise The Loan. 31. At the loan closing, Smith indicated that she could not afford to make the monthly

5 payments that were called for in the loan. 32. In response to the allegation cited in paragraph 29, above, Sawyer pressured and intimidated Smith into signing the loan papers, by trivializing her concern about the payment amount by assuring her that her part-time employment for The GL National Mortgage Company ( GL would soon become full-time employment, yielding enough to substantiate the increased payment amount, and by making certain statements that amounted to duress. 33. Sawyer made the statements above for the purpose of convincing Smith to execute The Loan, so that he could obtain the various types of compensation that would be due to him as a result of the loan. 34. The loan contained an interest rate that was higher than the interest rate that Smith was obligated to pay on her current note, in contravention to Sawyer s promise that the interest rate would be lower. 35. Prior to the date Smith was to sign the loan, Sawyer advised her to refrain from paying her, then, current mortgage payment, to her detriment. 36. Upon information and belief, Nick Sawyer is an officer, part owner and/or principal of GL. 37. Upon information and belief, Sawyer stood to be compensated for the business that was done by GL, in addition to any compensation that he was to receive as a mortgage broker, whether monetary or otherwise, when the Smith loan closed. COUNT III (OHIO MORTGAGE BROKER ACT 38. Paragraphs 1 through 37 are hereby realleged and reasserted as if fully rewritten, herein. 39. Sawyer is a loan officer, as defined by O.R.C (E. 40. Sawyer made false or misleading statements to Smith, when he threatened her and made statements that were designed to pressure her into signing the loan, when he told her that she

6 would receive a lower interest rate than the one that she was currently paying, in order to convince her to enter into a refinance loan with GL, and when he assured her that her part-time employment would blossom and remunerated her in an amount that would enable her to make the objectionable monthly payments, in violation of O.R.C (A, as he never intended to fulfill these promises, or made them with the knowledge that they were untrue. 41. Sawyer engaged in conduct that constitute[d] improper, fraudulent, or dishonest deallings, when he misrepresented the actual interest rate in order to induce Smith to apply for a refinance loan with GL when he threatened and pressured Smith to sign for the loan at closing, and when he assured her that her part-time employment grow (as depicted above even though she was expressing her unwillingness to do so, in violation of O.R.C (C. 42. At all times, Sawyer acted with a conscious, willful and malicious disregard for the rights and safety of Vicki Smith, knowing that there was a great probability that his acts would cause harm to Smith. 43. Sawyer is liable to Smith in the amount of statutory, actual and punitive damages, pursuant to O.R.C , as well as attorney fees. COUNT IV (BREACH OF FIDUCIARY DUTY 44. Paragraphs 1 through 43 are hereby realleged and reasserted as if fully rewritten, herein. 45. Sawyer, as Smith s mortgage broker was acting as her paid fiduciary and owed her the typical duties of care that a fiduciary owes to his customer. 46. Because Sawyer acted as Smith s fiduciary, he owed her the duty of good faith and loyalty, which prohibits self-dealing, which includes preclusion from making personal profit out of any transaction in which the fiduciary acts on behalf of his principal.

7 47. Sawyer breached the aforementioned duty by misrepresenting the amount of the interest rate that Smith qualified for, by threatening her and making other statements that were intended to induce Smith to sign the loan documents after she indicated her unwillingness to do so, by obtaining a loan for Smith that contained terms that were patently worse than the terms of The Loan under which Smith was the currently, obligated to pay, so he could benefit himself by obtaining the compensation that he was to receive as the mortgage broker and as a principal of GL. 48. Because of the aforementioned breach of fiduciary duty, Sawyer is liable to Smith in an amount to be determined by this court. COUNT V (FRAUD 49. Paragraphs 1 through 48 are hereby realleged and reasserted as if fully rewritten, herein. 50. When Sawyer made the statements outlined above, he had a duty to be truthful with her about the consequences and circumstances of The Loan, by virtue of his position as a loan officer in the state of Ohio and by virtue of his position as a fiduciary. 51. The facts that Vasquez concealed, and the misrepresentations that were made were material to the transaction at hand. 52. Said omissions and misrepresentations were made with the knowledge of their falsity, or with such utter disregard and recklessness as to whether they were true or false and with the intent of misleading Palmer into relying upon them. 53. The reliance of Smith on the statements and omissions that were made by Sawyer was justifiable, given the circumstances, and said reliance resulted in injury to Smith, as the instant lawsuit will attest.

8 54. At all times, Sawyer acted with a conscious, willful and malicious disregard for the rights and safety of Vicki Smith, knowing that there was a great probability that his acts would cause harm to Smith. 55. Because of the actions and omissions outlined above, Sawyer has committed Fraud upon Smith, and is liable to her in an amount to be determined by this court. COUNT VII (DETRIMENTAL RELIANCE 56. Paragraphs 1 through 55 are hereby realleged and reasserted as if fully rewritten, herein 57. At the time that the loan was to close, Smith expressed her concern that the monthly payments on The Loan were too much for her to pay, in light of her monthly income. 58. When confronted with the concerns that were raised by Palmer in Para 57, above, Sawyer misrepresented to Smith that her part-time job (which at the time was working for Sawyer at GL would become full-time and provide her enough money to meet the obligation for which she was about to sign and made other statements, which were designed to pressure her into signing the documents, against her will. 59. The statements, above, were made by Sawyer to Smith at the time of the closing of The Loan in order to induce her to sign for a loan that she was unable to afford. 60. Sawyer used his position as a prior acquaintance and current employer, his superior knowledge as a long-time member of the consumer lending industry, his position as a mortgage broker and the statements enumerated above to induce Smith to sign for The Loan. 61. Given Smith s relationship with Sawyer, as a past customer and current employee, it was reasonable for her to rely on the promises made by Sawyer. Furthermore, she relied on those promises to her detriment.

9 62. As a result of the reliance mentioned above, Smith was damaged, and Sawyer is liable to her in an amount to be determined at trial. COUNT VIII (RESPONDEAT SUPERIOR 63. Paragraphs 1 through 62 are hereby realleged and reasserted as if fully rewritten, herein. 64. At all times relevant, herein, Sawyer was an employee of GL, all actions taken by him were in the course and scope of his employment and with the knowledge of GL. 65. Pursuant to the doctrine of Respondeat Superior, GL is liable for the wrongs committed by it s employee, herein. 66. Defendant Smith hereby reasserts all claims made against Sawyer, against GL. 67. GL is, therefore liable to Smith for all claims that she has made against Sawyer, herein, as well as all damages that she has suffered as a result of Sawyer s wrongdoing. WHEREFORE, As to her counterclaims, Defendant Respectfully request the following relief: 1. That Plaintiff s complaint be dismissed with prejudice 2. That this court find that Plaintiff has no right to foreclose on Defendant Smith s residence 3. That Plaintiff s security interest in Defendant Smith s property is void as the result of the valid rescission of the note and mortgage performed by Smith. 4. That Plaintiff is responsible to pay for the costs of the within action, pursuant to 15 U.S.C That Plaintiff is responsible to pay for the reasonable attorney fees that Defendant Smith has had to incur as the result of the within action, pursuant to 15 U.S.C That Plaintiff is liable to Defendant Smith for statutory, and actual damages in an amount to exceed Twenty-Five Thousand Dollars ($25, , pursuant to 15 U.S.C Such other relief that this court deems to be appropriate. WHEREFORE, As to her Third-party Complaint, Defendant/Third-Party Plaintiff requests the following relief: 1. That if any judgment is to be rendered against, Defendant/Third-Party Plaintiff that such judgment is the result of the violations and acts of Third party Defendants, Sawyer and GL, and

10 that Third party Defendants Sawyer and GL are liable to indemnify Defendant/Third-Party Plaintiff Smith in an amount equal to any monetary judgment that is rendered. 2. That Third party Defendants Sawyer and GL are responsible to pay for the costs of the within action, pursuant to O.R.C That, as a result of Third party Defendant Sawyer s and GL fraud and breach of fiduciary duty, Defendant/Third-Party Plaintiff Smith has been damaged in an amount to exceed Twenty- Five Thousand Dollars ($25, , plus punitive damages. 4. That Third party Defendants Sawyer and GL are liable to Defendant/Third-Party Plaintiff Smith as a result of Defendant/Third-Party Plaintiff Smith s detrimental reliance in an amount to exceed Twenty-Five Thousand Dollars ($25, , plus punitive damages. 5. That Third party Defendants Sawyer and GL are liable to Defendant/Third-Party Plaintiff Smith for her attorney fees pursuant to O.R.C (A(2. 6. That Third party Defendants Sawyer and GL are liable to Defendant/Third-Party Plaintiff Smith for statutory and punitive damages pursuant to O.R.C Such other relief as the court deems appropriate. Attorney for the Plaintiff