Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 2 of 10 IN THE SUPERIOR COURT OF FULTON co~fju;q01~!1f~~ffl STATE OF GEORGIA SEAN LOUGHLIN, on behalf of himself and all others similarly situated, v. Plaintiff, AMERISA VB MORTGAGE CORPORATION, NOVO APPRAISAL MANAGEMENT CORPORATION, and PATRICK MARKERT, Defendants. CLASS ACTION COMPLAINT OEPUlY CLERK Sll FULTON co CIVIL ACTION FILE NO. ~ltf0vj.-5'131d7 JURy TRIAL DEMANDED COMES NOW Plaintiff Sean Loughlin, on behalf of himself and all others similarly situated, and hereby flies this Class Action Complaint against Defendants Amerisave Mortgage X Corporation (" Amerisave'', Novo Appraisal Management Corporation ("Novo", and Patrick Markert ("Markert", alleging as follows: PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Mr. Loughlin is an adult citizen who currently resides at 2162 Tourney Drive, Marietta, GA 30068. He is the owner of the residence at 2162 Tourney Drive ("the residence" and recently financed the purchase of his' home through Amerisave. 2. The Class of Currently Unnamed Plaintiffs are those customers of Amerisave and Novo that have been victims of the business practices of Amerisave, Novo, and Markert, which ; :;\. violate the Real Estate Settlement Procedures Act, 12 U.S.C. 2607 ("RESP A''. It is anticipated that many potential members of the class will be revealed through the discovery. process. OR COURT. GA
Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 3 of 10 3. Defendant Amerisave is a domestic, for-profit corporation that has been authorized to do business in the State of Georgia. Amerisave's principal place of business is One Capital City Plaza, 3350 Peachtree Road NE, Suite 1000, Atlanta, GA 30326. Amerlsave may be served with process via its registered agent, Patrick Markert, at said address. 4. Defendant Novo is a foreign, for-profit corporation that has been authorized to do business in the State of Georgia. Novo's principal place of business is 3525 Piedmont Road NE, Building S, Suite 505, Atlanta" Georgia 30305. Novo may be served with process via its registered agent, Martin Wilhelm;::at said address. 5. Defendant Markert is a resident of the State of Georgia. Markert may be served with process at 3350 Peachtree Road NE, Suite 1000, Atlanta, GA 30326. 6. This Court has jurisdiction because Amerisave and Novo are registered to do business in the State of Georgia, and in fact are doing business in the State of Georgia and in Fulton County. Venue is also proper pursuant to O.C.G.A. l4-2-510(b(i. 7. All conditions precedent to this cause of action have been performed, exercised, or otherwise satisfied. 1 '';STATEMENT OF FACTS 8. Amerisave is a mortgage lender that operates primarily online through its website at www.amerisave.com. 9. Novo is an appraisal management entity that provides lenders with a network of appraisers throughout the country. 10. Novo is Amerisave's affiliate and provides appraisal management services throughout the United States for Amerlsave. 2
Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 4 of 10 11. Markert has an indirect beneficial ownership interest in both Amerisave and Novo through trusts for himself and members of his family. 12. Since at least Jan~ 2011, Amerisave has generally required its customers to use Novo for their home appraisal services, referring over 99% of its appraisal business to Novo. 13. Amerisave does not allow consumers like Mr. Loughlin to choose their own appraiser or appraisal management company. 14. Amerisave did not disclose its affiliated relationship with Novo and Markert to consumers like Mr. Loughlin. 15. Novo receives appraisal referrals from Amerisave, and then retains a real estate appraiser to conduct the appraisal and prepare the appraisal report. Once the appraisal is complete, Novo forwards the app~' report to Amerisave. 16. Markert established trusts for himself and members of his family that indirectly are the beneficial owners of both Novo and Amerisave. Markert set the price Novo charged Amerisave for appraisals and the base amount that Novo paid appraisers. Markert received shareholder distributions from Novo during 2011, 2012, and 2013, most of which came from profits Novo generated from referrals from Amerisave. 17. Section 8(a ofrespa, 12 U.S.C. 2607(a, provides: No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a r;jii} est3te settlement service involving a federally related mortgage loan shall be referred to any person. 18. Section 8(c of RESPA, 12 U.S.C. 2607(c, contains a narrow exception to Section 8(a's prohibition. It provides, in relevant part: Nothing in this section shall be construed as prohibiting... (4 affiliated business arrangements so long as (A a disclosure is made of the existence of such an arrangement to the person being referred and, in connection with such referral, 3
Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 5 of 10 _ such person is provided a written estimate of the charge or range of charges generally made by the provider to which the person is referred (iii in the case of referral by a lender _.. at the time the estimates required under section s(c [GFE] are provided... (B -such person is not required to use any particular provider of settlement services, and (C the only thing of value that is received from the arrangement, other than the payments permitted under this subsection, is a return on the ownership interest or franchise relationship... For purposes of the preceding sentence, the following shall not be cousidered a violation of (4(B: (i any arrangement that requires a buyer, borrower, or seller to pay for the services of an attorney, credit reporting agency, or real estate appraiser chosen by the lender to represent thc;tlender's interest in a real estate transaction... ',; 19. Amerisave, Novo, and Markert each qualify as a "person" for purposes of RESPA, 12 U.S.C. 2602(5. 20. Amerisave, Novo, and Markert have an affiliated business arrangement for purposes ofrespa, 12 U.S.C. 2602(7. 21. Novo, Amerisave, and Markert are not subject to the exception set forth in Section 8(c(4 ofrespa. 22. Novo has given, a.nd Markert has accepted, a thing of value, in the form of profit distributions from Novo, pursuarlt; to the agreement or understanding that appraisal management services involving federally related mortgage loans of Amerisave consumers would be referred to Novo, in violation of Section 8(a ofrespa. 23. In connection with the servicing of Mr. Loughlin's loan, Amerisave, Novo, and Markert, in violation of RESP A, failed to disclose their affiliated business arrangement prior to Mr. Loughlin paying $425 for an appraisal with Novo in order to obtain a loan from Amerisave. This appraisal fee would have been lower if appraisal services had been open to competitive bidding on the open market. Moreover, the proportion of profit siphoned from Novo to Markert or to Amerisave or its affiliat~: sh~tild rightly have been deducted from the cost of Mr. Loughlin's appraisal. 4
. Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 6 of 10 CLASS ALLEGATIONS, 24. Plaintiff brings tliis action on behalf of himself and all current and fonner customers of Amerisave and Novo who have been hanned by the corporate practices of Amerisave and Novo referenced above. 25. The class at issue is so numerous that the joinder of all members by name in one action is impracticable. 26. Important questions of law and fact exist which are common to the class and predominate over any questions that may affect individual class members in that Amerisave, Novo, and Markert have acted on grounds generally applicable to the entire class. All claims li., arise from Amerisave, Novo, and"'markert's violations ofrespa. 27. A detennination of whether Amerisave, Novo, and Markert violated RESPA with regard to each class member will be made in the same manner. Such violations can be readily detennined from records, such as disclosures (or lack thereof, closing statements, and other loan closing documents provided to each class member as required under RESPA. Such documents are also retained by Defendants. 28. The claims of the class representative, Mr. Loughlin, are typical of the claims of the class.. Specifically, Defendants' conduct with respect to Mr. Loughlin's loan was not compliant with RESPA. 29. Mr. Loughlin's statutory recovery as a result of Defendants' conduct will be calculated in the same manner for all the class members Mr. Loughlin seeks to represent. Although the amounts paid for appraisals may differ, and therefore damages may vary, the methodology for detennination of the recovery is the same. 5
Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 7 of 10 30. Mr. Loughlin will fully and adequately represent and protect the interests of the class because of the common injuries and interests of the class members and the conduct of Amerisave and Novo applicable to all class members. Mr. Loughlin has retained counsel competent and experienced in the prosecution of complex and class action litigation. Mr. Loughlin has no interests that are contrary to or in conflict with those of the class he seeks to "., ~~. represent. 31. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Since the amount of each individual class member's claim is small relative to the complexity of the litigation, and due to the fmancial resources of Amerisave, Novo, and Markertt, no class member could afford to seek. legal redress individually for the claims alleged herein. Therefore, absent a class action, Defendants' misconduct alleged herein may nilt be rectified. 32. Even if class m~bers. themselves could afford such individual litigation, the court system could not. Given the legal and filctuai issues involved, individualized litigation would significantly increase the delay and expeuse to all parties and to the Court. Individualized litigation would also create the potential for inconsistent or contradictory rulings. By contrast, a class action presents fur fewer management difficulties, allows claims to be heard which might otherwise go unheard because of the relative expense of bringing individual lawsuits, and provides the benefits of adjudication, economies of scale, and comprehensive supervision by a single court. 6
. Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 8 of 10 COUNT ONE Violation ofrespa 8. 12 U.S.C. 2607(a 33. Plaintiff incorporates by reference the allegations in Paragraphs I through 32 above as if set forth verbatim herein. 34. As established above, RESPA 8(a, 12 U.S.C. 2607(a, prohibits a person from giving and accepting a "fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person." " 35. Amerisave, Novo, and Markert each qualify as a ''person'' for purposes of RESPA, 12 U.S.C. 2602(5, and have an affiliated business arrangement for purposes of RESPA, 12 U.S.C. 2602(7. 36. Novo, Amerisave, and Markert are not subject to the exception set forth in RESPA 8(c(4. 37. Novo has given, and Markert has accepted, a thing of value, in the form of profit distributions from Novo, pursuant to the agreement or understanding that appraisal management services involving federally related mortgage loans of Amerisave consumers would be referred " to Novo, in violation ofrespa S(a. 38, In connection with the servicing of Mr, Loughlin's loan, Amerisave, Novo, and Markert, in violation of RESP A, failed to disclose their affiliated business arrangement prior to Mr. Loughlin paying $425 for an appraisal with Novo in order to obtain a loan from Amerisave. 39, 12 U.S.C. 2607(d(2 provides as that: Any person or persons wllo violate the prohibitions or limitations of this section shall be jointly and severally liable to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge pai4,for such settlement service.,e.. 7
Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 9 of 10 I 40. Defendants' conduct with respect to Mr. Loughlin's loan and the loans of the putative class members violated RESP A. 41. Mr. Loughlin and the class members are therefore entitled to recover the damages " provided for in 12 U.S.C. 2607{d(2, as well as their reasonable attorneys' fees and expenses. See 12 U.S.C. 2607(d(5. WHEREFORE, Plaintiff Sean Loughlin prays: (1 For certification of this matter as a class action lawsuit to proceed on behalf of the class of all currently unnamed Plaintiffs as defined after suitable discovery has been completed; (2 (3 (4 the class; (5 (6 For restitution; For an award of such damages as are authorized by law; For an award of all reasonable costs and attorneys' fees incurred by Plaintiff and.~.. For trial by jury of all matters; and For such other and further relief as the Court may deem just and equitable. 8
. \. Case 1:14-cv-03497-ODE-LTW Document 1-1 Filed 10/30/14 Page 10 of 10 :C', " DATED ti1is 10th day of September, 2014....,.j, BY: Respectfully submitted, WEBB, KLAS,E & L]MOND, LLC ~CtrVjUcv E. Adam Webb Georgia State Bar No. 743910 G. Franklin Lemond, Jr. Georgia State Bar No. 141315 1900 The Exchange, S.E, Suite 480 Atlanta, Georgia 30339 (770 444-0773 (770 217-9950 (fax AdaIiJ.@WebbLLC,com Franklin@WebbLLC.com Attorneys for Plaintiff and the Class of Currently Unnamed Plaintiffs, c 9