10.  This action arises from the misapplication of mortgage payments by Ocwen.    11.  Ocwen regularly enters into agreements with mortgage lenders for servicing of  residential home mortgages.    13.  Because interest is calculated by multiplying the agreed upon interest rate by the  remaining loan balance, a borrower paying any monies early and in excess of the scheduled  monthly payment should realize a reduction in principal, and accordingly a reduction in the  amount of interest paid, each time the excess payment is made.    14.  This fundamental payment practice is recognized in the GMAC Mortgage, and in  fact in all standard Fannie Mae/Freddie Mac uniform mortgage agreements.  Lenders and  servicers are required to apply amounts paid by the borrower in excess of the original scheduled  monthly payments to the principal loan balance.  See Ex. A at 4, Section 2 (“Any remaining  amounts shall be applied first to late charges, second to any other amounts due under this  Security Instrument, and then to reduce the principal balance of the Note.”)    15.  Ocwen administers and services many mortgages in the State of Florida and  throughout the United States where the borrower has chosen to pay on accelerated schedule.   16.  For borrowers paying on an accelerated schedule, Ocwen has purposefully and  deliberately failed or refused to apply excess payments to the principal loan balance.   17.  Rather than applying excess payments to a borrower’s loan balance, Ocwen  applies only one cent (¢.01) to principal and holds the remaining amount in “suspense” until  additional funds are received to equal a full monthly mortgage payment regardless of whether the  barrower is ahead of the original payment schedule.    18.  Ocwen pays the borrower no interest on the funds held in “suspense.”   20.  Ocwen’s practices and procedures deprive borrowers of the reduction in principal  and interest at the time of the excess payment, thereby causing more funds than required to be  applied to interest on each future payment.    21.  Ocwen’s practices and procedures of holding excess payments in “suspense”  further deprives the borrower of interest each day on the excess funds held in a suspense account.   22.  Upon information and belief, the excess payments that Ocwen receives mid- month, the payments that amount to less than a full monthly mortgage payment that are  designated as “Suspense Payments,” are moved into an interest-bearing account for which  Ocwen retains the proceeds and profits.    Plaintiffs Robert and Carrie Begley   23.     On May 12, 2006, Robert and Carrie Begley entered into a mortgage agreement  with Lender Primary Residential Mortgage Inc., as the security instrument for the purchase of a  their home at 1254 Greenview Lane in Gulf Breeze, Florida 32563.  Plaintiffs also executed a  Note. See Exhibits A and B.     24.  Immediately, Plaintiffs’ Mortgage was assigned to GMAC Mortgage Corporation  (“GMAC”) for administration and servicing.  See Ex. A at 23 and 37.     26.  In 2012, Plaintiffs received a solicitation from GMAC offering, among other  things, a bi-weekly accelerated mortgage payoff program.  See Purchase Power Mortgage  Program, attached hereto as Exhibit. C. 1   27.  Among other things, the program offered to debit one-half of Plaintiffs’ monthly  mortgage payment bi-weekly, thereby effectuating twenty-six (26) bi-weekly payments per year,  resulting in thirteen (13) full monthly payments in per year.  The plan promised that doing so  would “reduce the time it takes to pay off your mortgage, resulting in interest savings over the  life of the loan.”  Id.     28.  The purpose of the program was to reduce the principal balance of the loan at an  accelerated rate, thereby reducing the amount of interest paid by Plaintiffs and to pay off the loan  in its entirety years earlier than scheduled.    29.  GMAC provided Plaintiffs an amortization schedule that compared their one-time  monthly payment schedule with the anticipated bi-weekly payment schedule, illustrating the  reduction of principal and resulting savings in interest with the bi-weekly payment schedule.  See  GMAC Amortization Schedule, attached as Ex. C.    30.  Plaintiffs started making payment bi-weekly in accordance with the program  beginning on October 19, 2012.  Accordingly, the Plaintiffs’ bank account was debited one-half  of their monthly mortgage payment, in the amount of $1,686.36 every two weeks, from that day  forward.  Thereafter, Plaintiffs’ bank account has been debited $1,686.36 bi-weekly.    32.  Following the transfer, Ocwen has purposefully and deliberately failed or refused  to apply Plaintiffs’ excess payments to the principal loan balance.   33.  Rather than applying the Plaintiffs’ excess payments directly to the loan principal  balance, Ocwen has applied only one cent (¢.01) to principal and holds the remaining amount in  “suspense” until additional funds are received to equal a full monthly payment.    34.  Ocwen pays the borrower no interest on the funds held in “suspense.”    35.  Once the Plaintiffs were paid up and ahead of the monthly amount due and owing  on the mortgage, Ocwen did not apply additional, early payments directly to principal as required  under the Mortgage.  Instead, Ocwen applies the additional, early payment as a new monthly  payment for the following month, which had the effect of paying Ocwen early but did not reduce  principal in an accelerated manner.  As a direct result, Ocwen was paid more interest than it  should have been paid based on the contract and when the payments were received.        36.  Ocwen’s practices and procedures deprived Plaintiffs of the reduction in principal  and interest at the time of the excess payment, thereby causing more funds than required to be  applied to interest on each future payment.   37.  Upon information and belief, the excess payments that Ocwen receives from the  Plaintiffs mid-month, the payments that amount to less than a full monthly mortgage payment  that are designated as “Suspense Payments,” are moved into an interest-bearing account for  which Ocwen retains the proceeds and profits.    38.  Plaintiffs bring this action against Defendant pursuant to Rule 23 of the Federal  Rules of Civil Procedure on behalf of themselves and all other persons similarly situated.  Plaintiffs seek to represent the following classes:   Nationwide class:  All borrowers in good standing who made mortgage payments to Ocwen  in excess of their monthly scheduled payment.  Excluded from this class  are Defendants, their affiliates, subsidiaries, agents, board members,  directors, officers, and/or employees, class counsel in this matter and the  Court personnel in this matter.  Florida Subclass as to Count V - Florida Deceptive and Unfair Trade Practices Act:  All Florida borrowers in good standing who made mortgage payments to  Ocwen in excess of their monthly scheduled payment.  Excluded from this  class are Defendants, their affiliates, subsidiaries, agents, board members,  directors, officers, and/or employees, class counsel in this matter and the  Court personnel in this matter.   39.  Plaintiffs reserve the right to modify or amend the definitions of the proposed  classes before the Court determines whether certification is appropriate.   4.  40.  Defendant subjected Plaintiffs and the respective Class Members to the same  unfair, unlawful, and deceptive practices and harmed them in the same manner.  B.  Numerosity   42.  There are questions of law and fact that are common to Plaintiffs and Class  Members’ claims.  These common questions predominate over any questions that go particularly  to any individual member of the Class.  Among such common questions of law and fact are the  following:  a.  Whether Ocwen failed or refused to apply excess payments made by borrowers to  their loan principal balance as required by law or the borrowers’ mortgage agreements;  b.  Whether Ocwen breached the mortgage contracts with Plaintiffs and the Class by  failing or refusing to apply excess payments made by borrowers to their loan principal balance as  required by law or the borrowers’ mortgage agreements;  c.  Whether Ocwen placed excess mortgage payments in an interest-bearing account  and retained the interest earned;  d.  Whether Ocwen was negligent in failing or refusing to apply excess payments  made by borrowers to their loan principal balance as required by law or the borrowers’ mortgage  agreements  e. Whether an objective consumer would be deceived by Ocwen’s excess mortgage  payment practices as well as material mis-statements and omissions made to consumers  regarding the impact of how Ocwen applied excess payments to the mortgage balance, thereby  violating FDUTPA;  f.  Whether Ocwen intentionally and unjustifiably interfered with Plaintiffs’ and the  Classes’ rights under the mortgage contracts by requiring borrowers to pay more interest on their  mortgage than they should have and also profiting from interest on funds held in “suspense”; and  g.  Whether Plaintiffs and the Class Members are entitled to damages and/or  injunctive relief as a result of Defendant’s conduct.  D.  Typicality   44.  Plaintiffs are adequate representatives of the classes they seek to represent and  will fairly and adequately protect the interests of the classes.  Plaintiffs are committed to the  vigorous prosecution of this action and have retained competent counsel, experienced in  litigation of this nature, to represent them.  There is no hostility between Plaintiffs and the  unnamed class members.  Plaintiffs anticipate no difficulty in the management of this litigation  as a class action.   45.  To prosecute this case, Plaintiffs have chosen the undersigned law firms, which  are very experienced in class action litigation and have the financial and legal resources to meet  the substantial costs and legal issues associated with this type of litigation.  F.  Requirements of Fed. R. Civ. P. 23(b)(3)   45.  The questions of law or fact common to Plaintiffs and each Class Member’s  claims predominate over any questions of law or fact affecting only individual members of the  classes.  All claims by Plaintiffs and the unnamed class members are based on the misapplication  of excess mortgage payments.   46.  Common issues predominate when, as here, liability can be determined on a class- wide basis, even if there will be some individualized damage determinations.   48.  A class action is superior to individual actions in part because of the non- exhaustive factors listed below:  (a) Joinder of all class members would create extreme hardship and inconvenience for the  affected customers as they reside all across the states;  (b) Individual claims by class members are impractical because the costs to pursue  individual claims may exceed the value of what any one class member has at stake.  As a result,  individual class members may have no interest in prosecuting and controlling separate actions;  (c) There are no known individual class members who are interested in individually  controlling the prosecution of separate actions;  (d) The interests of justice will be well served by resolving the common disputes of  potential class members in one forum;  (e) Individual suits would not be cost effective or economically maintainable as  individual actions; and  (f) The action is manageable as a class action.  H.  Requirements of Fed. R. Civ. P. 23(b)(1) & (2)   49.  Prosecuting separate actions by or against individual class members would create  a risk of inconsistent or varying adjudications with respect to individual class members that  would establish incompatible standards of conduct for the party opposing the class.   50.  Defendant has acted or failed to act in a manner generally applicable to the  entirety of the class or classes, thereby making appropriate final injunctive relief or  corresponding declaratory relief with respect to the classes as a whole.  51.  Plaintiffs, on behalf of themselves and the Class Members, re-allege and  incorporate every paragraph of this Complaint and further allege:   53.  Plaintiffs and these Class Members’ mortgages are written on uniform mortgage  forms and contain the same or substantially similar provisions regarding the application of  excess mortgage payments.  See Ex. A at 4, sec. 2.    54.  After applied to other amounts due, Plaintiffs’ mortgage requires Ocwen to apply  excess mortgage payments to “reduce the principal balance” of the loan.  Id.    55.  Similarly, Plaintiffs and these Class Members were issued Mortgage Notes which  are uniform forms and contain the same or substantially similar provisions regarding the  application of excess mortgage payments.  See Ex. B.   56.  The Note includes the following language:   62.  Plaintiffs, on behalf of themselves and the Class Members, re-allege and  incorporate every paragraph of this Complaint and further allege:   63.  A covenant of good faith and fair dealing is implied in every contract and imposes  upon each party a duty of good faith and fair dealing in its performance.  Common law calls for  substantial compliance with the spirit, not just the letter, of a contract in its performance.   64.  Plaintiffs’ and the Class Members’ mortgage contracts require Ocwen to apply  excess mortgage payments to “reduce the principal balance” of the loan.    65.  Ocwen breached the implied covenant of good faith and fair dealing by, among  other things, failing or refusing to apply excess payments to a borrower’s principal loan balance,  applying only one cent ($¢.01) to principal and holding the remaining amount in “suspense” until  additional funds are received to equal a full monthly payment, and holding excess payments in a  “suspense account” for which it retains interest proceeds for its own profits.   66.  As a direct, proximate, and legal result of the aforementioned breaches of the  covenant of good faith and fair dealing, Plaintiffs and the Class have suffered damages.  67.  Plaintiffs, on behalf of themselves and the Class Members, re-allege and  incorporate every paragraph of this Complaint and further allege:   68.  Ocwen and/or its affiliates received from Plaintiffs and Class Members benefits,  in the form of funds earned on interest it has held and continues to hold in “suspense”.    69.  Further, Ocwen received financial benefits in the form of increased interest  income due to its own deliberate and purposeful failure or refusal to apply excess payments by  Plaintiffs and the Class to the mortgage principal loan balances.    70.  As a result, Plaintiffs and the Class have conferred a benefit on Ocwen.   71.  Ocwen had knowledge of this benefit and voluntarily accepted and retained the  benefit conferred on it.   72.  Ocwen will be unjustly enriched if it is allowed to retain the aforementioned  benefits, and each Class Member is entitled to recover the amount by which Ocwen was unjustly  enriched at his or her expense.  73.  Plaintiffs, on behalf of themselves and the Class Members, re-allege and  incorporate every paragraph of this Complaint and further allege:   74.  Plaintiffs’ mortgage requires Ocwen to apply excess mortgage payments to  “reduce the principal balance” of the loan.    76.  After Plaintiffs complained to Ocwen that their principal had not been reduced by  their excess payments, Ocwen admitted to negligence in a letter dated December 3, 2013 to  Plaintiffs, indicating it had “experienced system issues,” and there was no “error” on the part of  the Plaintiffs.  See December 3, 2013 letter from Ocwen attached hereto as Exhibit D.    77.  Subsequently, Ocwen has failed or refused to correct the “system issue” and  Plaintiffs and the Class have and continue to suffer damages a result of Ocwen’s negligence.    78.  Ocwen’s refusal to apply excess mortgage payments to Plaintiffs’ and the Class  Members’ mortgages constitutes negligence.   79.  Plaintiffs and the Class members have suffered damages as a result of Ocwen’s  negligence.  80.  Plaintiffs, on behalf of themselves and the Florida Class Members, re-allege and  incorporate every paragraph of this Complaint and further allege:   81.  FDUTPA, section 501.201, et seq., Florida Statutes, prohibits “unfair methods of  competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the  conduct of any trade or commerce.” § 501.204, Fla. Stat.   82.  Plaintiffs and the Florida Subclass are “consumers” as that term is defined in  section 501.203(7), Florida Statutes.   84.  In failing to do so, Ocwen has engaged in, and continues to engage in,  unconscionable acts or practices and has engaged in unfair or deceptive acts in the conduct of its  trade and/or commerce in the State of Florida.  Ocwen’s actions result in material  misrepresentations and omissions to the Plaintiffs and class members.   85.  The policies, acts, and practices alleged herein were intended to result and did  result in the excessive payment of interest to Ocwen not allowed or contemplated by the  mortgage agreements it is bound by and that it has with Plaintiffs and the Florida Subclass.     86.  The policies, acts, and practices alleged herein were intended to result and did  result in unlawful or unfair compensation for Ocwen.   87.  Ocwen’ s conduct of purposefully and deliberately failing or refusal to apply  excess payments by Plaintiffs and the Class to the mortgage loan balance violates FDUTPA and  was conceived, devised, planned, implemented, approved and executed within the State of  Florida, which has an interest in prohibiting violations of FDUTPA.   88.  Ocwen is not a bank or savings and loan association regulated by the Florida  Office of Financial Regulation of the Financial Services Commission.  Further, it is not a bank or  savings and loan association regulated by federal agencies.   89.  Plaintiffs and the Florida Subclass have sustained damages as a direct and  proximate result of Ocwen’s unfair and unconscionable practices.  Section 501.211(2), Florida  Statutes, provides Plaintiffs and the Florida Subclass a private right of action against the  Defendant and entitles them to recover their actual damages, plus attorneys’ fees and costs.   BREACH OF CONTRACT   BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING   Misapplication of Mortgage Payments by Ocwen   NEGLIGENCE   VIOLATION OF THE FLORIDA DECEPTIVE  AND UNFAIR TRADE PRACTICES ACT  