Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

ADA WILSON and

THE ESTATE OF JOSEPH WILSON
Plaintiffs
vs.
BEL FURY INVESTMENTS GROUP,
LLC (A Nebraska Limited Liability
Company) and SCOTT W. BLOEMER
Defendants

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action 8:04CV640

Judge Laurie Smith Camp

Mag. Judge. F.A. Gossett

AMENDED COMPLAINT
JURY DEMANDED

JURISDICTION
1.
Plaintiffs institute this action for actual damages, statutory damages and
the costs of the action, including attorneys fees, pursuant to the Truth in Lending Act, 15
U.S.C. 1601 et seq, (the TILA) as amended by the Home Ownership and Equity
Protections Act 15 U.S.C. 1639 et seq (the HOEPA) and Federal Reserve Board
Regulation Z, 12 C.F.R. 226 et seq promulgated pursuant thereto.
2.
This Court has jurisdiction over the action pursuant to 15 U.S.C. 1640,
28 U.S.C. 1331 and 28 U.S.C. 1367.
3.
Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because
the defendants reside in this district and the actions complained of occurred in this
district.
4.
Nebraska.

Plaintiffs request that this matter be heard before a jury in Omaha,

PARTIES
5.
The Plaintiff Ada Wilson is a natural person residing at 6225 Elm Street,
Omaha, NE 68106.
6.
The Plaintiff Joseph Wilson was a natural person who resided at 6225 Elm
Street, Omaha, NE 68106 at the time of his death. This action is instituted on behalf of
his estate.
7.
Defendant Scott Bloemer is a natural person with his principal place of
business at 3035 Harney Street, Omaha, NE 68131

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 2 of 11

8.
Defendant Bel Fury Investments Group L.L.C., is a domestic limited
liability company organized under the laws of the State of Nebraska with it principal
place of business located in Omaha, Nebraska.
9.
Defendant Scott W. Bloemer is a managing member of Bel Fury
Investments Group L.L.C.
10.
Defendants Bloemer and Bel Fury Investment Group L.L.C. are
creditors as that term is defined by 15 U.S.C.1602.
FACTS
11.

Plaintiff Ada Wilson is a resident of Omaha, Nebraska.

12.
Prior to his death in August 2004, Joseph Wilson was a resident of
Omaha, Nebraska.
13.
In July 1995, the Plaintiffs purchased a home at 6225 Elm Street, Omaha,
NE for approximately $75,000. (the Wilson Home) The Plaintiffs lived at the Wilson
Home continuously after that date with their family. Plaintiff Ada Wilson currently lives
at the home with her eight-year-old grandson, whom she has adopted.
14.
In July 1995 Commercial Federal Bank loaned $75,000 to the Plaintiffs to
purchase the Wilson Home. This loan was secured by a promissory note and deed of
trust held against the property.
15.
During the summer months of 2003, the Plaintiffs experienced financial
difficulties resulting in several late payments on the Commercial Federal Bank loan.
By October 2003, the Plaintiffs had accrued a deficiency on the
16.
Commercial Federal Bank loan from four missed payments.
17.
Due to the late payments, on or about October 5, 2003 Commercial
Federal Bank notified Mr. and Mrs. Wilson of its intent to proceed with a trustees sale
on December 30, 2003.
18.
Upon information and belief, in October 2003 the Plaintiffs had accrued
approximately $20,000 in equity in the Wilson Home.
In October 2003, and during all other times relevant to these proceedings,
19.
the only lien against the Wilson Home was that held by Commercial Federal Bank.
20.
On or about the first week of November 2003, and in any event after
notice of the trustees sale was published by Commercial Federal Bank, Defendant Scott

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 3 of 11

Bloemer approached the Plaintiffs at their home without any prior contact by the
Plaintiff.
When defendant Scott Bloemer first contacted the Plaintiffs at their home,
21.
he represented himself as a real estate appraiser retained by Commercial Federal Bank
for the purpose of appraising the value of the Wilson for purposes of the trustees sale
that was scheduled for December 30, 2003.
22.
Based upon information and belief, the Plaintiffs aver that Commercial
Federal did not employ Defendant Bloemer at any time relevant to these proceedings.
23.
Based upon information and belief, the Plaintiffs aver that Defendant
Bloemer is not a licensed real estate appraiser in the State of Nebraska and was not a
licensed appraiser in the State of Nebraska in November and December 2003.
24.
Based upon Defendant Bloemers representing himself as a real estate
appraiser, Defendant Bloemer gained access to the Plaintiffs home for the purpose of
assessing its condition and value.
25.
Based upon Defendant Bloemers representation that he was employed by
or on behalf of Commercial Federal, the Plaintiffs provided financial and personal
information to Defendant Bloemer that they otherwise would not have provided.
26.
On or about the first week of November 2003, while presenting himself as
a representative or agent of Commercial Federal Bank, Defendant Bloemer repeatedly
represented to the Plaintiffs that he could stop the scheduled trustees sale by refinancing
the loan secured by the Wilson Home.
27.
On several separate occasions during November and December 2003,
Defendant Bloemer made telephone calls to the Plaintiffs home to discuss refinancing the
Commercial Federal Loan. During these telephone conversations, Defendant Bloemer
represented to the Plaintiffs that he could stop the scheduled trustees sale by refinancing
the loan secured by the Wilson Home.
On several occasions during November and December 2003, Defendant
28.
Bloemer represented to the Plaintiffs that he was affiliated with Defendant Bel Fury
Investments Group L.L.C. and that Bel Fury Investments Group L.L.C. would provide
financing to pay-off the principle owed to Commercial Federal Bank as well as any
accrued and unpaid interest, penalties and fees.
29.
Upon information and belief, Defendant Bloemer and Bel Fury Investment
Group L.L.C. are engaged on a regular basis in the business of extending credit to
consumers with such credit secured by the consumers home.
30.
Upon information and belief, the Defendants manipulated the timing of
the transaction to create unfair benefits that accrued to the Defendants. Defendant

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 4 of 11

Bloemer was aware of the scheduled trustees sale and took advantage of the timing of
this sale to create a heightened urgency in the transaction.
On December 29, 2003, Defendant Bloemer met with Mr. and Mrs.
31.
Wilson at the offices of Bel Fury Investment Group L.L.C.. During this meeting
Defendant Bloemer presented the Plaintiffs with various transaction documents.
32.
Prior to the December 29, 2003 meeting at the Bel Fury Investment Group
offices, the Plaintiffs understood that Bel Fury would provide financing to refinance the
Commercial Federal Bank loan and such understanding was consistent with and
supported by the Defendants representations and actions.
33.
On December 29, 2003, Defendant Bloemer presented Mr. and Mrs.
Wilson with documentation to affect a transfer of the deed to the Wilson Home. These
documents included:
a.
b.
c.
d.
e.
f.
g.
h.

Purchase Agreement (A copy of which is attached as Exhibit A).

Addendum to Purchase Agreement (A copy of which is attached as
Exhibit B)
Addendum #2 to Uniform Purchase Agreement (A copy of which
is attached as Exhibit C).
Addendum #3 to Purchase Agreement (A copy of which is
attached as Exhibit D).
Warranty Deed (A copy of which is attached as Exhibit E).
Residential Affidavit (A copy of which is attached as Exhibit F).
Nebraska Real Estate Commission Seller Property Condition
Disclosure Statement (A copy of which is attached as Exhibit G).
Rental Agreement (A copy of which is attached as Exhibit H).

34.
Although the transaction between the Plaintiffs and the Defendants was a
credit transaction, the Defendants failed to disclose the terms of the credit, including the
amount financed and the interest rate charged.
The Plaintiffs executed the documents presented by the Defendants at the
35.
December 29, 2003 meeting.
36.
Pursuant to the terms of the Purchase Agreement, the Plaintiffs retain a
Right to Repurchase the Wilson Home at the end of each rental term. The price for
exercising this option increases by $3,000 at the end of each year and has no limit or
ceiling, for example, on December 28, 2004 the repurchase price is $82,500.00, on
December 28, 2005 $85,500.
37.
Since December 29, 2003, the Plaintiffs have retained possession of the
Wilson Home and have made regular monthly payments to Defendant Bel Fury
Investment Group L.L.C. under the terms of the Rental Agreement.

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 5 of 11

38.
Mrs. Wilson has made each payment owed to the Defendants in a timely
manner. Despite making regular payments to the Defendants, the amount owed to the
Defendants will increase over time, as described in Addendum Number 3 to the Purchase
Agreement, Exhibit D.
39.
Upon information and belief, the Defendants failed to refinance the
Commercial Federal Bank loan as promised and Plaintiff Wilson remained the debtor on
this loan from December 29, 2003 through at least October 1, 2004.
FIRST CAUSE OF ACTION:
TRUTH IN LENDING ACT 15 U.S.C. 1601 et seq.
40.
The Plaintiffs hereby reincorporate all the allegations contained in all
paragraphs above as if fully set forth herein.
41.
The transaction between the Plaintiffs and the Defendants was a consumer
loan transaction wherein the Defendants extended credit to the Plaintiffs and such credit
was secured by an interest held by the Defendants in the Plaintiffs residence.
42.
Elements of the transaction establishing this to be a loan secured by the
Plaintiffs property include, but are not limited to, the fact that the negotiations on the
amount of money advanced by the Defendants to the Plaintiffs concerned the Plaintiffs
need for cash rather than the fair market value of the Plaintiffs property and the amount
of money accepted by the Plaintiffs was far less than their propertys fair market value.
43.
The transaction between the Plaintiffs and the Defendants was subject to
the statutory requirements contained in the TILA and HOEPA.
44.
As a consumer credit transaction, the Defendants were required to provide
to the Plaintiffs mandatory Truth-in-Lending disclosure statements to disclose to
Plaintiffs the amount financed, finance charge, and annual percentage rate as required by
TILA and the regulation promulgated thereto, 12 C.F.R. 226.1 et seq. (Regulation Z).
45.
The Defendants failed to provide any disclosure statements, as required by
Truth-in-Lending, disclosing the financing terms of the consumer credit transaction, in
violation of the requirements of the Truth in Lending Act and Regulation Z in the
following and other respects:
a.

By failing to provide the required disclosures prior to consummation of

the transaction in violation of 15 U.S.C. 1638(b) and Regulation Z
226.17(b) and Regulation Z 226.33(c)(1).

b.

By failing to make required disclosures clearly and conspicuously in

writing in violation of 15 U.S.C. 1632(a) and Regulation Z 226.17(a).

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 6 of 11

c.

By failing to disclose as part of the finance charge certain charges imposed

by Defendants payable by Plaintiffs incident to the extension of credit as
required by 15 U.S.C. 1605 and Regulation Z 226.4, thus failing to
properly disclose the finance charge in violation of 15 U.S.C. 1638(a)(3)
and Regulation Z 226.18(d).

d.

By failing to disclose the annual percentage rate (APR) based upon

properly calculated and disclosed finance charges and amounts financed,
as mandated by 15 U.S.C. 1606, Regulation Z 226.22, and in violation
of 15 U.S.C. 1638(a)(4) and Regulation Z 226.18(c) and Regulation Z
226.32(c).

46.
By reason of the aforesaid violations of TILA and Regulation Z, the
Defendants are liable to Plaintiffs in the amount of twice the finance charge, actual
damages to be established at trial, and costs in accordance with 15 U.S.C. 1640(a).
47.
The Defendants conduct has been intentional, willful, and taken in
disregard to the rights of others.
48.
By reason of the Defendants actions, the Plaintiffs are entitled to
rescission and statutory damages pursuant to 15 U.S.C. 1640(a)(2)(B).
SECOND CAUSE OF ACTION:
HOME OWNERSHIP AND EQUITY PROTECTION ACT 15 U.S.C. 1602(aa)
49.
The Plaintiffs hereby reincorporate all the allegations contained in all
paragraphs above as if fully set forth herein.
50.
The above mentioned consumer credit transaction was a high rate
mortgage within the meaning of HOEPA, 15 U.S.C. 1602(aa)(1)(B).
51.
Defendants, upon information and belief, have engaged in a pattern or
practice of extending credit to consumers under high rate mortgages, as defined by 15
U.S.C. 1602(aa), based on the consumers collateral without regard to the consumers
repayment ability, including their current or expected income, current obligations and
employment, in violation of 15 U.S.C. 1639(h).
52.
Because the transaction described herein met the HOEPA definition of a
high rate mortgage, the transaction was subject to additional disclosure requirements that
must be provided three days in advance of the consummation of the transaction. See 15
U.S.C. 1639(b).
53.
The Defendants failed to furnish the disclosures required under HOEPA to
the Plaintiffs three days prior to the settlement of the transaction described herein, in
violation of 15 U.S.C. 1639(b).

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 7 of 11

54.
Because the transaction described herein met the HOEPA definition of a
high rate mortgage, the transaction was prohibited from including a negative
amortization, i.e. a payment schedule with regular periodic payments that cause the
principal balance to increase. 15 U.S.C. 1639(f).
55.
The loan consummated between Defendants and Plaintiffs includes a
negative amortization that will result in the principal balance of the loan increasing over
its term even if Plaintiff makes all regularly scheduled payments, in violation of 15
U.S.C. 1639(f); Regulation Z 226.32(d)(2).
56.
By reason of Defendants actions, the Defendants are liable to Plaintiffs
pursuant to 15 U.S.C. 1640 (a)(2)(A) in the amount of twice the finance charge, actual
damages to be established at trial, and costs.
57.
By reason of Defendants actions, the Plaintiffs are entitled to rescission
and statutory damages pursuant to 15 U.S.C. 1640 (a)(2)(B)

THIRD CAUSE OF ACTION:

RESCISSION UNDER THE TRUTH IN LENDING ACT:
58.
The Plaintiffs hereby reincorporate all the allegations contained in all
paragraphs above as if fully set forth herein.
59.
The consumer credit transaction between Plaintiffs and Defendants was
subject to the right of rescission as described in 15 U.S.C. 1635 of the Truth in Lending
Act and 226.23 of Regulation Z, 12 C.F.R.226.23.
60.
Defendants failed to deliver all material disclosures required by TILA,
HOEPA and Regulation Z. The disclosure violations include, but are not limited to:

a.

Failing to properly and accurately disclose the amount financed,

15 U.S.C. 1638(a)(2)(A) and Regulation Z 226.18(b).

b.

Failing to clearly and accurately disclose the finance charge, 15

U.S.C. 1638(a)(3) and Regulation Z 226.4 and 226.18(d).

c.

Failing to clearly and accurately disclose the annual percentage

rate, 15 U.S.C. 1638(a)(4) and Regulation Z 226.18(e).

61.
Plaintiffs have a continuing right to rescind the transaction until receipt of
all material disclosures described above, pursuant to 15 U.S.C. 1635(a) and
Regulation Z 226.23(a)(4).

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 8 of 11

62.
Plaintiffs rescinded the transaction on December 27, 2004 by delivering to
Defendant, by facsimile transmission, a written notice of rescission.
63.
Defendants have failed to take the necessary and appropriate action to
reflect the termination of any security interest created under the transaction, as required
by 15 U.S.C. 1635(b) and Regulation Z 226.23(d)(2).
64.
As a result of the aforesaid violations of TILA and Regulation Z, pursuant
to 15 U.S.C. 1635(a) and 1640(a), the Defendants are liable to the Plaintiffs for:
a.

Rescission of the transaction, including a declaration that the

Plaintiffs are not liable for any finance charges or other charges
imposed by the Defendants;

b.

Termination of any interest whatsoever in Plaintiffs property held

by the Defendants;

c.

Return of any money or property given by the Plaintiffs to anyone,

including the Defendants, in connection with the transaction;

d.

Statutory damages of $4,000 for each plaintiff (consisting of

$2,000 for the disclosure violation and $2,000 for the failure to
rescind);

e.

Forfeiture of return of any loan proceeds;

f.

Actual damages in an amount to be determined at trial; and

g.

Costs, including attorneys fees as allowed by TILA and HOEPA.

65.
As a result of Defendants conduct, Plaintiffs have suffered damage as
shall be shown at trial.
FOURTH CAUSE OF ACTION
FRAUD:
66.
The Plaintiffs hereby reincorporate all the allegations contained in all
paragraphs above as if fully set forth herein.
67.
During November 2003 and December 2003, the Defendants made
fraudulent misrepresentations and omissions to Plaintiffs including specifically, inter
alia,
a.

Statements by Defendant Scott Bloemer to the effect that he was

retained by or associated with Commercial Federal Bank and had

Case: 8:04-cv-00640-LSC-FG3

b.
c.

d.

e.

f.

Document #: 57

Date Filed: 02/15/2006

Page 9 of 11

been engaged by Commercial Federal Bank to appraise Plaintiffs

home;
Statements and assurances by Defendant Scott Bloemer that he and
Defendant Bel Fury Investments Group would help Plaintiffs;
Statements by Defendant Scott Bloemer that he and Defendant Bel
Fury Investments Group could stop a pending trustees sale of their
home and provide for financing;
Statements describing the transaction which was consummated
between the parties on or about December 29, 2003, as a way for
Plaintiffs to keep their home;
Representations made by Defendant Scott Bloemer that payments
made to the Defendants by Plaintiffs would be used, in part, to
repay the Defendants for funds they advanced on Plaintiffs behalf;
and
Failing to reveal Defendants true intentions in the transaction,
which were to acquire Plaintiffs equity in their home.

68.
The Defendants misrepresentations and omissions were false, and when
they were made they were known to be false or made recklessly without knowledge of
their truth and the representations were made as a positive assertion.
69.
The Defendants made the representations and omissions with the intention
that Plaintiffs would rely upon them, and Plaintiffs reasonably did so rely.
70.
As a result of the Defendants misrepresentations and omissions, the
Plaintiffs suffered damage as set forth herein.
FIFTH CAUSE OF ACTION:
RECISSION
71.
The Plaintiffs hereby reincorporate all the allegations contained in all
paragraphs above as if fully set forth herein.
72.
forth herein.

The Defendants made fraudulent representations and omissions as set

73.
The Defendants representations were false. The Defendant omitted to
disclose to the Plaintiff his true intentions, which were to intentionally trick the Plaintiff
out of a property interest, equity in her home and/or money. Defendants
misrepresentations and omissions were material.
74.
The Plaintiffs believed the misrepresentations to be true, and therefore
relied and acted upon the misrepresentations and omissions.
75.
The Defendants misrepresentations and omissions tended to induce the
Plaintiff into action that otherwise would not have taken.

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 10 of 11

76.
As a direct and proximate cause of the Defendants misrepresentations and
omissions, the Plaintiffs suffered damages as more fully set forth herein.

SIXTH CAUSE OF ACTION:

PRELIMINARY INJUNCTION
77.
The Plaintiff hereby reincorporates all the allegations contained in all
paragraphs above as if fully set forth herein.
78.
Plaintiffs, by and through their counsel, move this Court, pursuant to Rule
65 of the Federal Rules of Civil Procedure, for a Preliminary Injunction against the
Defendants enjoining them from taking any action to transfer any interest putatively held
by the Defendants in the Wilson residence located at 6225 Elm Street, Omaha, NE or to
encumber the Plaintiffs interest in that property. In support of their Motion, the Plaintiffs
state as follows:
a.

The Plaintiffs will suffer immediate and irreparable harm if the Defendants should
transfer any interest in the Wilson property;

b.

Plaintiffs have no adequate remedy at law should the Defendants affect such a
transfer;

c.

Plaintiffs are likely to prevail on the merits of their claims;

d.

The balance of the hardships tips decidedly in favor of granting the requested
injunction, inasmuch as the cost to the Defendants of enjoining any such transfer
is negligible when compared to the potential harm the Plaintiffs face if they lose
their dwelling and property prior to these proceedings ending.

WHEREFORE, the Plaintiffs pray that the Court enter an order that:
1.
Declares that the Defendants conduct violates the Truth in Lending Act, as
amended by the Home Ownership and Equity Protection Act, 15 U.S.C. 1601;
2.
Enjoins the Defendants, their agents, employees, assigns, successors and
all other persons in active concern or participation with them, from taking any action to
transfer any interest in the Wilson residence while these proceedings are pending;
3.
Requires such action by Defendants as may be necessary to restore all
persons aggrieved by Defendants acts to the position they would have occupied but for
such conduct;

10

Case: 8:04-cv-00640-LSC-FG3

Document #: 57

Date Filed: 02/15/2006

Page 11 of 11

4.
Awards actual damages sustained by the Plaintiffs in accordance with 15
U.S.C. 1640(a)(1);
5.

Awards statutory damages in accordance with 15 U.S.C. 1640(a)(2);

6.
Rescinds the transaction described herein pursuant to 15 U.S.C. 1639 and
awards the costs of the action, together with attorneys fees in accordance with 15 U.S.C.
1640(a)(3); and
The Plaintiffs further pray for such other additional relief as the interest of justice may
require.

ADA WILSON and

THE ESTATE OF JOSEPH WILSON
Plaintiffs

By: /s/ Steven M. Virgil

Steven M. Virgil, No. 21430
Attorney for the Plaintiffs
Abrahams Legal Clinic
Creighton University Law School
2120 Cass Street, Suite 228
Omaha, NE 68178
(402) 280-3068
virgil@creighton.edu

11