Received and E-Filed for Record

9/5/2019 11:43 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Jeff Fiore

19-09-12087
CAUSE NO. ______________

JENNIFER AND MICHAEL DEERING § IN THE DISTRICT COURT OF

Plaintiffs, §
§
V. § MONTGOMERY COUNTY, TEXAS
§ Montgomery County - 284th Judicial District Court
BANK OF AMERICA, N.A. §
Defendants. § _______JUDICIAL DISTRICT

PLAINTIFFS’ ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Jennifer and Michael Deering, (collectively “Plaintiffs”), and files this

Original Petition complaining of Defendant Bank of America, N.A. (“Defendant”) and would

respectfully show the following:

I. DISCOVERY CONTROL PLAN

1. Discovery is to be conducted in this case according to Level 2.

II. PARTIES

2. Plaintiffs Jennifer and Michael Deering are individuals who reside in Montgomery

County, Texas.

3. Bank of America, N.A. (“Bank of America”, “BOA” or “the Bank”) is a foreign

corporation with a principal place of business in Dallas, Dallas County, Texas. Bank of America

can be served with process by serving its registered agent, CT Corporation System at 1999 Bryan

Street, Suite 900, Dallas, Texas 75201-3136.

III. JURISDICTION

4. The Court has jurisdiction over the Bank because the Bank does substantial

business in Texas such that it has more than minimum contacts with Texas. Specifically, with

respect to this suit, Bank of America provided mortgages to consumers in Texas and attempted to

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collect debts from Texas consumers. This Court also has personal jurisdiction over Bank of

America under the Texas long-arm statute. Tex. Civ. Prac. & Rem. Code §§ 17.041-.042. By virtue

of its business dealings and other significant contacts in Texas, Bank of America should reasonably

anticipate that it is subject to the jurisdiction of Texas and her courts. The Bank has purposefully

availed itself of the rights and privileges of doing business in Texas.

5. Pursuant to Tex. R. Civ. P. 47, Plaintiffs state that in this suit they seek monetary

relief over $200,000 but not more than $1,000,000 as of the time of filing. Plaintiffs reserve the

right to amend this amount as discovery progresses.

IV. VENUE

6. Venue is proper in Montgomery County, Texas, on the grounds that all or a

substantial part of the events or omissions giving rise to the claims asserted herein occurred in

Montgomery County, Texas. This case is brought under Texas state law, including the Texas Debt

Collection Practices Act and the Texas Deceptive Trade Practices Act. The amount in controversy

exceeds the minimum jurisdictional limits of this Court.

V. FACTS

7. In late August 2017, Hurricane Harvey ravaged the Texas Gulf Coast. The storm

caused more damage than any storm in Texas history. Among the victims were Jennifer and

Michael Deering whose home and yard on Lake Conroe sustained many thousands of dollars in

damages.

8. Where most saw tragedy, Bank of America saw opportunity. Shortly after the

storm, the Bank contacted the Deerings to offer them a deferral of the mortgage payments on their

home. Bank of America told the Deerings they could skip their regular mortgage payments for up

to a year and that the skipped payments would be tacked on to the end of the mortgage term. This

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came as wonderful news to the Deerings who needed the extra money to make repairs to their

home.

9. The deferral proved to be a bait-and-switch by Bank of America. Shortly after the

Deerings agreed to the loan deferral and before they had completed the necessary repairs to their

home, Bank of America changed the terms. In fact, in November of 2017 just two months into the

one-year deferral, Bank of America told the Deerings that if they did not resume their mortgage

payments and make all the deferred payments in a lump sum, Bank of America would foreclose

on the house and take the Deering’s home.

10. During the first three months of forbearance, Bank of America sent the Deerings a

Notice of Default with Intent to Accelerate. This notice claimed that the Deerings had defaulted

on their mortgage by not making the September, October, and November mortgage payments. But

these payments, of course, were the very payments that were excused by the “Special Disaster

Forbearance” and that the Bank, in no-uncertain terms had expressly agreed that the Deerings

could skip. The Bank informed the Deerings of its decision to break its promise and foreclose on

the Deerings’ home the day after Thanksgiving.

11. Almost immediately Michael Deering was hospitalized with panic attacks, anxiety,

high blood pressure, and depression. This was the first time Michael had displayed such symptoms

and it is clear that they were caused by Bank of America’s threats to take his family’s home.

12. Over the months that followed, Bank of America’s communications were riddled

with misrepresentations about the status of the Deerings’ home loan and their ability to continue

the Special Disaster Forbearance. Bank of America frequently sent written communications stating

one thing only to have its representatives contradict that writing during calls with the Deerings.

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 13. At one point, Bank of America tried to force the Deerings into a loan modification.

The Deerings never wanted a modification and, had Bank of America disclosed this intent at the

outset of the talks, the Deerings never would have agreed to the forbearance. At other times, Bank

of America’s written communications directly contradicted one another. This dizzying back-and-

forth all began, of course, when the Deerings received a Notice of Default while they were in

Special Disaster Forbearance.

14. With Bank of America’s continued lies, Michael Deering’s stress level mounted

and his health worsened. He now takes expensive prescription medication to manage his anxiety,

depression, and cardiac conditions – all brought on by the Bank’s carelessness, intent and malice.

15. After a year of constant worry over whether Bank of America would keep its

promises or break them, the Deerings learned that the Bank was in fact going to take their house.

Bank of America proceeded with the foreclosure in spite of the fact that their Notice of Default

and Intent to Accelerate – a condition precedent to foreclosure – was totally inadequate and false.

Unable to stop Bank of America, the Deerings signed lease on a new place, packed up their things,

and moved out.

VI. CLAIMS

A. Texas Debt Collection Act

16. Plaintiffs incorporate by reference all of the forgoing paragraphs as though set forth

fully herein. Plaintiffs satisfied all notice provisions and conditions precedent prior to filing suit.

17. Plaintiffs are each a “consumer” as defined by Texas Finance Code 392.001(1).

“Consumer” means an individual who has a consumer debt.

18. Bank of America is a “debt collector” as defined by Texas Finance Code

392.001(6). “Debt collector” means a person who directly or indirectly engages in debt collection

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and includes a person who sells or offers to sell forms represented to be a collection system, device,

or scheme intended to be used to collect consumer debts.

19. Bank of America violated the Texas Debt Collection Act in at least these ways:

(a) By threatening that nonpayment of a consumer debt would result in sale of

the person’s property without proper court proceedings;

(b) By threatening to take actions prohibited by law;

(c) By making false representations about the status of the Deering’s consumer
debt; and

(d) By using fraudulent, deceptive, and misleading representations about the

character, extent, and amount of the consumer debt, including but not
limited to claiming that the Deerings were in default for not making
payments that were deferred pursuant to Bank of America’s program.

20. The terms of the Special Disaster Forbearance did not permit Bank of America to

accelerate during the forbearance. The Deerings complied with the terms of the forbearance and

yet Bank of America represented that the Deerings owed money they did not owe and then

accelerated on that basis.

21. As a result of Defendants’ alleged violations. Plaintiff has suffered damages,

including economic damages, lost wages, mental anguish and extreme emotional distress and are

entitled to recover actual damages. Further, as these violations were in violation of the Texas

Finance Code, Plaintiffs are entitled to not less than $100 for each violation in addition to the

damages described above.

22. All prerequisites to suit have occurred or have been waived by Defendant’s

knowing conduct.

23. Plaintiffs should be awarded exemplary damages against Defendants. Morante v.

American General Financial Center, 157 F. 3d 1006 (5th Cir. 1998). Exemplary damages are

available under the Texas Debt Collection Act.

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B. Texas Deceptive Trade Practices Act

24. Plaintiffs incorporate by reference all of the forgoing paragraphs as though set forth

fully herein. Plaintiffs satisfied all notice provisions and conditions precedent prior to filing suit.

25. Plaintiffs are “consumers” as that term is used in the Texas Deceptive Trade

Practices Act. See Tex. Bus. & Com. Code § 17.45(4). The money from the mortgage held by

Bank of America was used to purchase their family home.

26. Bank of America is a proper defendant under the Deceptive Trade Practices Act

because it is a corporation and, thereby, a “person” as defined by Tex. Bus. & Com. Code §

17.45(3).

27. Bank of America engaged in false, misleading, and deceptive practices in at least

the following ways:

(a) By representing and expressly warranting that Bank of America would not
begin foreclosure proceedings on the Deerings’ property while the
Forbearance Plan was in effect;

(b) By representing terms of the forbearance agreement that were not true
and/or that Bank of America had no intent to adhere to;

(c) By representing that the Deerings’ mortgage payments would be suspended

during the forbearance period(s);

(d) By representing that the payments delayed during the forbearance period
would be added to the end of the loan;

(e) By threatening to accelerate and foreclose on the loan during the

forbearance period in an attempt to force the Deerings into a loan
modification with a higher monthly payment;

(f) By representing that the Deerings could extend their forbearance period for
up to a year.

28. Moreover, Bank of America’s actions toward Plaintiff’s were unconscionable

because they took advantage of the Plaintiffs’ lack of knowledge, ability, experience, or capacity

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to a grossly unfair degree – all to Plaintiffs’ detriment. Such unconscionable actions included the

following:

(a) By taking advantage of Hurricane Harvey’s damage to the Deerings’ – as

well as their vulnerable position – to financially profit;

(b) By stringing the Deerings along for a year promising that the intention to
accelerate and foreclose was a mistake;

(c) By baiting the Deerings into a forbearance only to demand thousands of

dollars immediately so that Bank of America could try and force the
Deerings into an unwanted loan modification.

29. These misrepresentations were the producing and proximate cause of the Deerings

injuries and damages and were made knowingly and intentionally by the Bank. As such, the

Deerings are entitled to and plead for actual damages (including but not limited to the loss of their

home and equity), statutory penalties, trebled damages (economic and mental anguish), attorney’s

fees, costs of suit and all other damages to which they show themselves entitled.

30. All conditions precedent were satisfied prior to the filing of this suit.

VII. JURY DEMAND

31. Plaintiffs request a trial by jury and tender with this petition the appropriate fees.

VIII. DISCOVERY

32. Plaintiffs hereby request Defendant to provide disclosures pursuant to Tex. R. Civ.

P. 194. Plaintiff Jennifer Deering also has attached Requests for Production, Interrogatories and

Admissions to be served with this Petition.

IX. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that they have judgment

against Bank of America, for the following:

(a) Actual damages within the jurisdictional limits of the court;

(b) Exemplary damages;

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 (c) Prejudgment and post-judgment interest as allowed by law;

(d) Attorney’s fees;

(e) Costs of suit; and

(f) Such other and further relief to which Plaintiffs are entitled.

Respectfully submitted,

HEARD LAW FIRM, PLLC

Denman Heard
State Bar No. 00784235
[email protected]
Derek Merman
State Bar No. 24040110
[email protected]
C.J. Baker
State Bar No. 24086719
[email protected]
2925 Richmond Ave., Suite 1550
Houston, Texas, 77098
713.665.1100 Voice
713.481.7082 Facsimile
ATTORNEYS FOR PLAINTIFFS
Dated: September 5, 2019

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 CAUSE NO. ______________

JENNIFER AND MICHAEL DEERING § IN THE DISTRICT COURT OF

Plaintiffs, §
§
V. § MONTGOMERY COUNTY, TEXAS
§
BANK OF AMERICA, N.A. §
Defendants. § _______JUDICIAL DISTRICT

PLAINTIFF JENNIFER DEERING’S FIRST REQUEST

FOR PRODUCTION OF DOCUMENTS, FIRST REQUEST FOR
INTERROGATORIES AND FIRST REQUEST FOR ADMISSIONS TO DEFENDANT

TO: Bank of America N.A. by and through its registered agent, CT Corporation System at 1999
Bryan Street, Suite 900, Dallas, Texas 75201-3136.

COMES NOW Plaintiff Jennifer Deering, pursuant to Rules 196, 197 and 198 of the Texas

Rules of Civil Procedure and makes this First Request for Production of Documents, First Request

for Interrogatories and First Request for Admissions. Defendant is requested to produce the items

identified in these Requests to the offices of Heard Law Firm as prescribed within fifty (50) days

of service.

These Requests for Production and Interrogatories are continuing requests and any

additional documents discovered or identified by Defendant subsequent to the date of said

response, up to and including the time of trial, shall be promptly furnished to Plaintiff through the

Heard Law Firm located at 2925 Richmond Ave., Suite 1550, Houston, Texas 77098.

These requests are intended to cover all documents in the possession of Defendant or

subject to Defendant’s custody or control either directly or through attorneys, representative or

other agents of Defendant.

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 Respectfully submitted,

HEARD LAW FIRM, PLLC

Denman Heard
State Bar No. 00784235
[email protected]
Derek Merman – Attorney in Charge
State Bar No. 24040110
[email protected]
C.J. Baker
State Bar No. 24086719
[email protected]
2925 Richmond Ave., Suite 1550
Houston, Texas, 77098
713.665.1100 Voice
713.481.7082 Facsimile
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

This is to certify that this instrument was served with Plaintiff’s Original Petition.

______________________________
Derek Merman

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 Definitions and Instructions

Each of the following definitions shall apply to these requests for production unless
indicated otherwise:

1. The conjunctions “and” and “or” shall each be individually interpreted in every instance as
meaning “and/or” and shall not be interpreted disjunctively to exclude any information
otherwise within the scope of its specification.

2. The singular form of any word includes the plural form of that word and the plural form of
any word includes the singular form of that word.

3. The terms “Plaintiff,” “Plaintiffs,” and “the Deerings” mean Jennifer and Michael Deering,
Plaintiffs in this lawsuit.

4. The terms “you,” “your” and “BOA” means Bank of America, N.A. its agents,
representatives and custodian of records.

5. The term “the forbearance agreement” means the Forbearance Plan for account no.
124228652 that was approved by Bank of America on or about September 2017 as alleged
in Plaintiffs’ Original Petition.

6. The term “forbearance program” and “forbearance plan” means the program, of which the
forbearance agreement was a part, provided or alleged to have been provided by BOA to
its mortgage holders that were affected by Hurricane Harvey.

7. The terms “document” and “documents” include, but are not limited to, the original and
non-identical copies (regardless of origin and whether or not including additional writing
thereon or attached thereto) of e-mails, agreements, contracts, corporate documents,
memoranda, reports, books, manuals, instructions, financial reports, working papers,
records, notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets,
magazines, newspapers, prospectus, inter-office and intra-office communications, e-mail,
cables, telexes, notations, memoranda, any sort of conversation, telephone calls, meetings,
communications, bulletins, printed matter, computer printouts, teletypes, invoices,
transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates,
projects, statements, certificates, federal and state income tax returns, state franchise tax
returns, reviews, opinions, offers, studies and investigations, questionnaires, surveys, work
sheets (and all drafts, preliminary versions, alterations, modifications, revisions, changes
and amendments of the foregoing), graphic or oral records or representations of any kind
(including, without limitation, photographs, charts, graphs, microfiche, microfilm,
videotape, recordings and motion pictures), electronic, mechanical, and electrical records
or representations of any kind (including, but without limitation, tapes, cassettes, discs, and
recordings), and other written, printed, typed or other graphic recorded matter of any kind
or nature, however produced or reproduced, and whether preserved in writing, disc, phono
record, film, tape, video tape, or other media.

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8. The terms “person” and “persons” mean individuals, boards or committees, corporations,
S-corporations, companies, entities, law firms, partnerships, limited partnerships, limited
liability partnerships, joint ventures, and other legal or taxable entities, whether public or
private.

9. If any document requested herein has been lost or destroyed, you are requested to identify
the last person who had possession or control of the document and to describe in detail the
circumstances of and reasons for such destruction or loss and to produce all documents
which relate to either the circumstances of or the reasons for such destruction.

10. If any document requested herein is withheld under claim of privilege, or is not produced
for whatever reason, you are requested (1) to state with specificity the claim of privilege or
other reason used to withhold production and (2) to identify such document by date, author,
and subject matter, in a manner sufficient to allow it to be described to the court for ruling
on the privilege or other reason asserted. You are further requested to produce those
portions of any such document which are not subject to a claim of privilege or other reason
for nonproduction by excising or otherwise protecting the portions for which a privilege is
asserted, if such a technique does not result in a disclosing the contents of the portions for
which some privilege is asserted.

11. Unless otherwise stated, the relevant time frame for these requests is January 1, 2007 to
the present.

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 PLAINTIFF JENNIFER DEERING’S FIRST REQUEST FOR PRODUCTION TO DEFENDANT

Please produce the following:

1. All records and documents related to the forbearance agreement.

2. All internal memorandum related to the forbearance plan, specifically but not limited to
correspondence and documents related to repayment terms for consumers.

3. All training manuals, video, training system course and policies used by BOA related to
the forbearance plan.

4. All training manuals, video, training system course and policies provided by BOA to any
third parties related to the forbearance plan.

5. Your policies and procedures related to the forbearance plan.

6. Your policies, procedures and training related to notices of intent to accelerate payments.

7. Your policies, procedures and training related to foreclosure.

8. All internal communications that reference customers claiming that BOA failed to
postpone payments pursuant to the forbearance plan.

9. All documents and communications related to customers of BOA claiming that BOA
instituted foreclosure proceedings during an approved forbearance period.

10. All complaints, notice letters, petitions and court filings claiming that BOA violated any
debt collection law or rule related to mortgage forbearance.

11. All agreements and communications with any municipal, state or federal governmental
entity related to the forbearance plan, disaster relief for Hurricane Harvey, incentives for
the forbearance program and/or benefits sought and/or received by BOA related to the
forbearance plan.

12. All documents that show or relate to the Deerings’ approval for the forbearance agreement.

13. All documents that reference or relate to representations by BOA to the Deerings that they
could add the payments subject to the forbearance agreement to the end of their mortgage.
This request seeks both communications with the Deerings and any internal documents that
relate to allowing consumers an option to add deferred payments to the end of their
mortgage.

14. All correspondence and communications exchanged between you and the Deerings.

15. The minutes of any meeting related to the forbearance plan.

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16. All publications, press releases and/or marketing related to the forbearance plan.

17. All documents related to the account, including but not limited to mortgage payments made
by the Deerings, for the property address 254 Wedgewood Dr., Montgomery, TX 77356.

18. All documents related to the acceleration of the note related to 254 Wedgewood Dr.,
Montgomery, TX 77356.

19. All documents related to the foreclosure initiated by you on 254 Wedgewood Dr.,
Montgomery, TX 77356.

20. All complaints by consumers related to the forbearance plan.

21. All documents related to the Deerings, the forbearance agreement and/or the foreclosure
proceedings related to 254 Wedgewood Dr., Montgomery, TX 77356.

22. Your policies and procedures for handling complaints from mortgage consumers.

23. Your file related to the Deering’s property located at 254 Wedgewood Dr., Montgomery,
TX 77356.

24. All communications related to foreclosure proceedings on 254 Wedgewood Dr.,

Montgomery, TX 77356.

25. All documents related to any modification to the loan held by the Deerings on 254
Wedgewood Dr., Montgomery, TX 77356.

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 PLAINTIFF JENNIFER DEERING’S FIRST SET OF INTERROGATORIES TO DEFENDANT

1. How many properties did you initiate foreclosure proceedings on that were at any time part
of the forbearance plan?

Answer:

2. Were the Deerings approved for forbearance? If so, please provide the dates of approved
forbearance and state whether, pursuant to the terms of the forbearance agreement, the
Deerings were not required to make payments on their home loan.

Answer:

3. If you contend you did not begin foreclosure proceedings on the Deerings’ home during an
approved period of forbearance, please explain the factual basis for your contention.

Answer:

4. On what date did you begin foreclosure proceedings on the Deerings’ home?

Answer:

5. Did you or anyone acting on your behalf ever tell Jennifer Deering that the payments that
were postponed under the forbearance agreement could be repaid by adding the payments
to the end of their mortgage?

Answer:

6. Please identify each person who spoke with either Jennifer Deering or Michael Deering
related to the forbearance agreement, the forbearance plan or the foreclosure proceedings
and provide their job title, last known address, date of each communication and brief
summary of the purpose of each communication.

Answer:

7. Do you contend that the Deerings had defaulted on their loan as of November 24th, 2017?
If so, please explain your contention and provide the dates that you contend they failed to
make a payment they were supposed to make.

Answer:

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8. If you contend that your Notice of Default and Intent to Accelerate complied with Chapter
51 of the Texas Property Code, please explain your contention and specifically explain
why you believe the amount of the debt stated in the Notice of Default and Intent to
Accelerate was correct given that the months for which nonpayment was claimed were
during a period of permitted forbearance.

Answer:

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 PLAINTIFF JENNIFER DEERING’S FIRST SET OF ADMISSIONS TO DEFENDANT

1. Admit that the Deerings were approved by you for a forbearance plan on their mortgage
following Hurricane Harvey.

Response:

2. Admit that the you agreed that the Deerings could defer certain mortgage payments
following Hurricane Harvey.

Response:

3. Admit that you agreed to allow the Deerings to defer their September 2017 mortgage
payment and make that payment at a later date.

Response:

4. Admit that you agreed to allow the Deerings to defer their October 2017 mortgage payment
and make that payment at a later date.

Response:

5. Admit that you agreed to allow the Deerings to defer their November 2017 mortgage
payment and make that payment at a later date.

Response:

6. Admit that you agreed to allow the Deerings to defer their December 2017 mortgage
payment and make that payment at a later date.

Response:

7. Admit that you agreed to allow the Deerings to defer their January 2018 mortgage payment
and make that payment at a later date.

Response:

8. Admit that you agreed to allow the Deerings to defer their February 2018 mortgage
payment and make that payment at a later date.

Response:

9. Admit that you initiated foreclosure proceedings on the Deerings’ residence during a period
of forbearance that you approved.

Response:

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10. Admit that you sent the Deerings a Notice of Default and Intent to Accelerate notice on
November 24, 2017.

Response:

11. Admit that the Notice of Default and Intent to Accelerate notice you sent to the Deerings
on November 24, 2017 was sent during a period of forbearance that you approved for the
Deerings.

Response:

12. Admit that the Notice of Default and Intent to Accelerate you sent the Deerings on
November 24, 2017 was ineffective as a matter of law because it was sent during a period
of agreed forbearance.

Response:

13. Admit that the Notice of Default and Intent to Accelerate you sent the Deerings on
November 24, 2017 was the only Notice of Default and Intent to Accelerate that you sent
the Deerings.

Response:

14. Admit that your foreclosure on the Deerings’ home was wrongful by virtue of your sending
an ineffective Notice of Default and Intent to Accelerate.

Response:

15. Admit that you represented to the Deerings that the payments deferred under the
forbearance agreement could be added to the end of the Deerings’ mortgage payments.

Response:

16. Admit that the Deerings had not defaulted on their home loan as of November 24, 2017.

Response:

17. Admit that you did not send any Notice of Default prior to approving the Deerings for
forbearance.

Response:

18. Admit that you did not send any Notice of Intent to Accelerate prior to approving the
Deerings for forbearance.

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Response:

19. Admit that your representation to the Deerings that you would not begin foreclosure
proceedings during a period of approved forbearance was false.

Response:

20. Admit that you offered to allow the Deerings to extend the forbearance of their mortgage
payments for up to one year.

Response:

21. Admit that you did not permit the Deerings to extend the forbearance of their mortgage
payments for one year.

Response:

22. Admit that your representation that the Deerings could extend the forbearance of their
mortgage payments for up to one year was false.

Response:

23. Admit that Jeremiah Rios instructed Mrs. Deering that she should not make the trial
modifications payments.

Response:

24. Admit that the trial modification offered to the Deerings contained accounting errors that
increased the monthly payments.

Response:

25. Admit that the amount of debt stated in the November 26, 2017 Notice of Default and
Intent to Accelerate was inaccurate because it contained payments that had been deferred
under the forbearance agreement.

Response:

26. Admit that the amounts claimed as debt in the November 26, 2017 Notice of Default and
Intent to Accelerate you sent the Deerings were not due to BOA by the Deerings at the time
the Notice of Default and Intent to Accelerate was sent by BOA.

Response:

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