~  1 117. Plaintiffs re-allege and hereby incorporate each and every allegation contained in Paragraphs 1 through 116 of this Complaint as though fully set forth 18 I I herein. 19 E~ 21 22 23 24 25 26 27 28 118. As detailed as BANA is in all its forms, disclosures and communications to its borrowers regarding the benefits of a loan modification, not once does BANA disclose to its current borrowers that if they obtain a loan modification from BANA, they wi11 lose thousands, if not tens of thousands, of dollars as a result of BANA's capitalization of the unpaid interest that has been incorporated into the "New Principal Balance" of the modified loan. 119. As alleged previously, BANA knowingly and intentionally concealed from plaintiffs and the other class members that a consequence of proceeding with their loan modifications would be that BANA would "convert" all deferred and unpaid interest into "principal" and that BANA would not report that interest on the -34- 84.  Plaintiffs bring this action on their own behalf and on behalf of classes of persons similarly situated pursuant to Rule 23(a) and 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. $5.  Plaintiffs seek to represent a damage class of: "all persons who: (1) had a BANA mortgage secured by real property in the United States (or in its territories and protectorates); (2) had their loan modified; (3) owed previously -26- DECLARATORY RELIEF 111. Plaintiffs re-allege. and hereby incorporate each and every allegation contained in Paragraphs 1 through 111 of this Complaint as though fully set forth herein. 112. An actual controversy has arisen and now exists between plaintiffs and BANA regarding the manner in which BANA accounts for payments of deferred and unpaid interest that existed on its borrowers' accounts as of the time they had their loans modified as alleged above. 113. Plaintiffs and the class members contend that BANA has maintained policies whereby it wrongfully concealed from class members that as part of their loan -33- VIOLATION OF 26 U.S.C. 6050H 127. Plaintiffs re-allege and hereby incorporate each and every allegation contained in Paragraphs 1 through 126 of this Complaint as though fully set forth herein. 128. Plaintiffs assert that there exists an implied private right of action to enforce the terms of 26 U.S.C. § 6050H under the test established in Cort v. Ash, 422