Complaint filed by LENOX FINANCIAL vs. THE MORTGAGE INSIDER MEDIA, LLC and ROB K. BLAKE and TERRI EWING personally -- Filed August 4, 2010 in the Georgia Northern District Court -- Nature of Suit: Intellectual Property - Trademark -- Jury trial demanded.

1. UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LENOX FINANCIAL 1
MORTGAGE. LLC
d/b/a Lenox ~inancial
Mortgage 1
and JON SHIBLEY, 1
1
Plaintiffs,
" ,S
U,
vs.
ROB K. BLAKE ) TRIAL BY JURY DEMANDED
and TERW EWING, personally, 1
and THE MORTGAGE INSlDER )
MEDIA, LLC 1
1
Defendants. 1
COMES NOW, LENOX FINANCIAL MORTGAGE, LLC d/b/a Lenox
Financial Mortgage ("Lenox Financial") and Mr. JON SHTBLEY ("Mr. Shibley"),
or collectively "Plaintiffs", and bring this federal civil action against Mr. ROB K.
BLAKE ("'Mr. Blake") and Ms. Terri Ewing ("'Ms. Ewing"), personally and
individually, and THE MORTGAGE INSIDER MEDIA, LLC ("Defendant
Mortgage Insider LLC"), collectively "Defendants", showing this Honorable Court
as follows:

2. INTRODUCTORY STATEMENT
Lenox Financial is a successful mortgage company founded, organized and
headquartered in the State of Georgia. Over the past fifteen years, Lenox Financial
has grown into an industry leader licensed in over 36 states but has maintained its
principal business operations in Atlanta, Georgia. Lenox Financial presently has
approximately 75 employees here in Atlanta. Mr. Shibley is the President and
CEO and resides in Fulton County, Georgia. As such, the Plaintiffs are all
residents of Georgia. The Defendants are competitors of Lenox Financial in the
national mortgage marketplace and evidently, among other activities in the
mortgage industry, recruit prospective mortgage consumers from their website
known as "The Mortgage Insider" and sell the information acquired ftom these
prospective customers as "leads", including leads from the State of Georgia, to
competing mortgage companies. The Defendants are all residents of Colorado. It
is alleged that Defendants have made knowingly false and disparaging statements
about Lenox Financial and Mr. Shibley on this website and have engaged in a
scheme and conspiracy to disparage and discredit Plaintiffs for financial gain. It is
alleged that, in violation of the Lanham Act, the Defendants have embedded the
Plaintiffs' trademarked business name as invisible "meta tags" within their website
so that consumers, when searching for Lenox Financial, are drawn to Defendants'
website and the false and disparaging statements contained therein. Plaintiffs seek
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3. preliminary and permanent injunctive relief against, and damages resulting from,
the unlawful acts and an unlawful plan by Defendants to malign, defame, and
discredit Plaintiffs. This Complaint seeks damages for unfair competition, false
advertising and dilution through tarnishment of Plaintiffs' marks, as well as
damages for malicious injury to Plaintiffs' business reputation and for professional
defamation, due to Defendants' statements that repeatedly, intentionally and
maliciously seek to portray both Lenox Financial and Mr. Shibley as unethical and
dishonest in business dealings, which is utterly and flatly untrue, and for tortious
interference with Lenox Financial's present and prospective business relationships.
In addition, Defendants, and potentially other co-conspirators, through these acts,
have violated a number of state statutes including the Georgia Deceptive Trade
Practices Act, the Georgia Fair Business Practices Act, and the Georgia False
I
Advertising Act and have maliciously sought to injure Plaintiffs by seeking to
obstruct and divert Lenox Financial's sales by use of this wrongful and unlawkl
scheme to disparage and discredit. Both Lenox Financial and Mr. Shibley have
been significantly damages by these u n l a f i l actions, and these damages have
been suffered most tangibly here in the State of Georgia where Lenox Financial is
located and where Mr. Shibley resides.

4. Plaintiff Lenox Financial Mortgage, LLC ("Lenox Financial") is a Georgia
corporation with its principal place of business located at 6 Piedmont Center, Suite
500, 3525 Piedmont Road, Atlanta, Georgia 30305. Lenox Financial maintains its
I
principal offices and houses its employees in Atlanta, Georgia and does not
maintain any significant office presence outside the State of Georgia.
Lenox Financial Mortgage, LLC commonly does business under the name
"Lenox Financial Mortgage" and is the successor entity to Lenox Financial
Mortgage Corp., which also did business under the name "Lenox Financial
Mortgage".
Plaintiff Mr. Jon Shibley is a resident of the State of Georgia, County of
Fulton.
4.

5. Defendant Mr. Rob K. Blake is a resident of the State of Colorado. He may
be served at his place of business located at 362 Central Avenue, Brighton, CO
80601.
Defendant Ms. Terri Ewing is a resident of the State of Colorado. She may
be served at her place of business located at 362 Central Avenue, Brighton, CO
80601.
Defendant The Mortgage Insider Media, LLC is a corporate entity properly
formed and organized under the laws of the State of Colorado. This is reasonably
believed to be the legal entity through which Defendants Blake and Ewing conduct
their various mortgage businesses, which is presumed to include mortgage
activities and business revenues derived from the web site known and referenced
as the "The Mortgage Insider", discussed below. The Mortgage Insider Media
LLC may be served by and through its registered agent Defendant Ewing.

6. This Court has subject matter jurisdiction principally under 28 U.S.C.
section 1332 (because all Defendants are citizens of states diverse from those of
Plaintiffs and the amount in controversy is in excess of $75,000, exclusive of
interests and costs) but also under 28 U.S.C. section 1331 (because several of the
claims alleged herein arise under the law of the United States and present a federal
question) and under 15 U.S.C. sections 1125 (original jurisdiction over the Lanham
Act claims). This Court has jurisdiction over the state law claims noted herein
principally under 28 U.S.C. section 1332 but also under 28 U.S.C. section 1367
and under 28 U.S.C. section 1338.
8.
This Court has personal jurisdiction over the Defendants because each of the
Defendants has, through its website and internet activity, activity which has been
purposefully directed at residents of the State of Georgia, in connection with the
factual allegations of this lawsuit (1) have transacted or have sought to transact
business in the State of Georgia through the selling of internet mortgage lead
involving Georgia property owners, (2) have committed tortious acts or omissions
in this state or have committed tortious injury in this state caused by acts or
omissions outside this state, and (3) have engaged in a persistent course of conduct
and has derived revenues from business transacted in the State of Georgia. This
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7. court has pendent personal jurisdiction over the Defendants as to the state law
claims noted herein.
Defendants are shown in this Complaint to have sufficient minimum
contacts with the State of Georgia by and through internet marketing purposefully
targeted at Georgia property owners, which marketing is alleged herein to have
wrongfully generated "leads", business, and profits for Defendants from Georgia
residents, such that the exercise of personal jurisdiction over the Defendants does
not offend due process or traditional notions of fair play and substantialjustice.
As these diverse defendants are subject to personal jurisdiction in this Court,
venue is fair and propekintbe~Northefi
District of GeorgiX No other District
Court in this State could provide a more appropriate forum.
, FACTUAL BACKGROUND
Background and Prover Business Practices of Lenox Financial
11.

8. Lenox Financial is a successful mortgage brokering company headquartered
in Georgia that does business in 36 states. Lenox Financial has been in the
mortgage business since 1994. The Lenox Financial name was marked in May of
2005.
To provide some idea of the scope of its success, skill and expertise, since
only 2004, in only the last five (5) years, Lenox Financial has brokered
approximately 45,000 mortgage transactions totaling over 10 billion dollars in
gross loan value. Lenox Financial has been in business for over ten (10) years.
Over the past ten years, Lenox Financial has spent millions of dollars
advertising its good name not only throughout the State of Georgia but also in
others states in which it does business.
Presently, Lenox Financial is an approved broker for numerous local and
national lenders, including the leading national lenders Bank of America and Wells
Fargo. Before the collapse of the mortgage lending market, Lenox Financial was
approved with nearly every significant national lender and enjoyed a close working
8

9. relationship with such respected national lenders as Chase Manhattan Mortgage
and CitiMortgage.
15.
Mr. Jon Shibley is the President and CEO of Lenox Financial. Mr. Shibley
first started working in the mortgage business in 1994.
16.
Starting in 1994, Mr. Shibley recognized a market and prospective benefit to
mortgage consumers for "no closing cost" mortgage products as a financial
for those who wished to refmance loans or purchase property but who did not wish
to pay thousands of dollars in closing costs as either an out of pocket expense or as
financed in a higher loan amount or as financed in a higher purchase price for the
Of course, "no closing cost" products carry a marginally higher annual
interest and a marginally higher corresponding monthly payment than 'Yradition"
or "par priced" mortgages.' However, Plaintiffs have always clearly, repeatedly
'"Traditional" or "par price" mortgages are those whose rate is established by the daily fluctuation of the
mortgage and bond markets and which rate is the lowest possible on that day the loan is locked without
the customer having to "pay down" the rate with what is known in the industry as a "discount point" or
9

10. and conspicuously disclosed this pricing differential to their customers as a choice
as compared with the traditional "full cost" mortgage product with a marginally
lower rate.
To ensure this option and choice is property presented on each and every
transaction, Mr. Shibley has developed sophisticated, proprietary technology and
has implements procedures to ensure both options are presented clearly to each and
every cu~tomer.~
As a matter of company policy, on every transaction in which Lenox
Financial is involved, this choice between the "traditional mortgage" with full
closings costs but amarginally lower rate and the "no closing cost" mortgage with
a marginally higher rate but with significant transactional costs savings is clearly
"discount fee". Although the rate is attractive, these products require the customer to pay "points" or
"origination fees", closing costs to the mortgage broker for his or her compensation, offen 1% ofthe loan
amount or more, as well as appraisal, lender, title or attorney fees, title insurance premiums, recording
fees and recording taxes, which all can amount to thousands of dollars in expense.
'n most cases, customers balance time in home, equity levels, project rate increases or decreases, and
I
closing costs previously invested before making a decision.

11. and repeatedly made to the cons~mer.~ customer is given the informed option
The
of which product to chose, the traditional mortgage or the "no closing cost".
Because of its size, and its corresponding negotiating power with its lenders,
Lenox Financial has a decided competitive advantage on the pricing of "no cost"
products over smaller, competing mortgage brokers and can offer its customers "no
closing cost" mortgage products at rates that compare favorably with "traditional"
or "par priced" mortgage products offered by smaller, competing brokers.
In addition, unlike any other mortgage broker known to Plaintiffs, Lenox
Financial accepts a fiduciary duty to its customers to operate with the highest
degree of integrity possible in the mortgage industry.
Lenox Financial enjoys a quality and valuable reputation with its customers
and has many customers who have used their services on numerous repeated
On the "no closing cost" product, LenoxFinancial is paid a yield spread premium by the lender, with
which Lenox is able to pay all the closing costs on behalf of the customer and sill make a reasonable
profit for its services. This is disclosed both on the Good Faith Estimate and on the HUD-I Closing
Statement on each and every transaction.

12. occasions. Lenox Financial also enjoys a quality and valuable reputation in the
greater community of Atlanta, Georgia and in the greater communities of the out of
state markets that it serves.
To promote and grow its business, Lenox financial has been heavily
involved in radio advertising but also relies on its website -
www.LenoxFinancial.com - to provide credible information about its business and
business practices to consumers.
To protect its business name, on or about March 30,2004, Mr. Shibley filed
for trademark protection for the name Lenox Financial. A mark was issued for
"Lenox Financial Mortgage Corp." on or about may 3 la,2005 and for the "Lenox"
on or about February 19,2008. These marks serve to protect against the improper
use any part of the mark and serve to fully protect the name "Lenox Financial" in
any and all respects.
Plaintiffs have not authorized any other individual or entity to make use of
any of their valid marks.

13. Defendants' False and Disparaging Claims and Statements about Lenox Financial
26.
Defendants Mr. Blake and Ms. Ewing, own and operate a web site called
The Mortgage Insider. The URl, for this site is http://themortgapeinsider.net. This
website is referenced herein and below as "this or the Website", "the Defendants'
Website" or "The Mortgage Insider" Website.
On this Website, Mr. Blake holds himself out as an objective "mortgage
insider" who purports to have the "truth" and intimates he has inside information
about or special insight into other mortgage companies, including Plaintiffs.
28.
However, Defendants have never made any credible investigation of Lenox
Financial and have never inquired of or spoken to Mr. Shibley about his company
or his business practices.
Although it is unclear whether Mr. Blake or Ms. Ewing have any direct
interest in any competing mortgage company, which they may, it is clear that they
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14. directly compete against Lenox Financial for mortgage customers and that they
seek to generate mortgage customer prospects or "leads" from those who visit this
Website.
It is alleged that Defendants have sold mortgage customer prospects or
"leads" generated from this Website, including leads generated from the State of
Georgia, to direct competitors of Lenox Financial for profit.
It is expressly alleged that Defendants have intentionally solicited mortgage
customers and "leads" through this Website for mortgage customers and
prospective mortgage customers living in and for loans to be originated in the State
of Georgia.
In addition, and more broadly, it is alleged that the Defendants compete with
Plaintiffs in the national information marketplace for mortgage consumers, using
both radio and internet mediums, a marketplace where credibility is of the utmost
importance.

15. On numerous occasions, Defendants, acting with malice and with the
malicious intent to discredit Lenox Financial and drive customers away from their
organization, have announced, written and published utterly false and disparaging
statements about Plaintiffs on this Website. These include the following (the
underlined portion has been added for emphasis in this Complaint):
a) On January 8,2007, Defendants published an article an article styled
'Wo Cost Mortgage Advertisers prey on Unsophisticated Borrowers"
Mr. Blake, presumptively with the approval of Ms. Ewing, expressly
says ''the no cost mortcraae is a scam requiring great salesmanship,
some misdirection, and an unsophisticated client." Mr. Ewing then
goes on to reference the "unethical behavior" of Lenox Financial
management, obviously directed at Mr. Shibley, and claims that
Lenox Management is&"
&b to its loan officers and using the loan
officers to "l&"to the consumers. As of the time of the filing of this
Complaint, these false, disparaging statements continue to be
announced and published.
b) On July 15'2007, Defendants published an article styled "Home
.
Mortgage Advertisers Lie . . Especially about Closing Costs". Mr.
15

16. Blake, presumptive with the approval of Ms. Ewing, expressly says
"mortgage companies who advertise on radio and TV about "no
closing costs" ... are simplv lying." This article expressly identifies
Lenox Financial as one of these "liars". It goes on to quote from the
Lenox Financial web site and states "the lie continues." Later in the
article, Mr. Blake makes reference to Lenox - presumptively Mr.
Shibley - as a "&' accusing him and Lenox of "deceptive
advertising': of delivering "su~er
inflated rates", of makiig huge
undisclosed vrofits, and he claims that "in many cases, it is not
disclosed to the borrower". In concluding, Mr. Blake writes "I hope
this helps you separate the honest form the dishonest" -again clearly
referring to Plaintiffs. As of the time of the filing of this Complaint,
these false, disparaging statements continue to be announced and
published.
c) On Monday November 12,2007, Defendants published an article
titled "The Mortgage Insider Interviewed for Article Critical of No
Cost Mortgage Advertisers" where Defendants reference a purported
article published in the Atlanta Journal and Constitution and state "the
premier perpetrator - referring to Lenox Financial - of this

17. deceptive advertising is sitting in his own back yard of Atlanta." The
article goes on to recommend that consumers find an "ethical", clearly
intimating that Plaintiffs are "unethical", mortgage provider and then
promotes his "mortgage shopping system." As of the time of the
filing of this Complaint, these false, disparaging statements continue
to be announced and published.
d) On Wednesday December 12', 2007, Defendants published an article
titled "No Cost Refinance Fantasyy'where they stated 'Wo Cost
Refinance Loans are a Myth" and "anyone attempting to get your
business claiming the opposite is playing word games and by
definition, &liar." This article was clearly referring to Plaintiffs.
As of the date of the filing of this Complaint, these false, disparaging
statements continue to be announced and published.
e) On January 14,2008, Defendants purported to conduct an objective
"review" of Lenox Financial" styled "Lenox Financial Mortgage
Review". Under this ostensibly fair review, Defendants published
links to the aforementioned false, disparaging, and defamatory
articles, namely "T%eMortgage Insider Interviewed for Article
Critical of No Cost Mortgage Advertisers", 'No Cost Mortgage
17

18. Advertisers Prey On Unsophisticated Borrowers"; "Home Mortgage
Advertisers Lie ... Especially about Closing Costs"; ' T o Cost
Refinance Fantasy" ; "Mortgage Help Lacking from CPAs"
f) On October 10,2008, Mr. Blake, on a blog portion of his site, makes
reference to Mr. Shibley as a "dork".
As of the time of the filing of the Complaint, Defendants continue to
announce and publish these false, disparaging statements regarding both Plaintiffs
on their Website. It is alleged that thousands of individuals both in the State of
Georgia and in other states have read or otherwise been exposed to these false and.
disparaging statements just in the last year.
The aforementioned published statements wrongfully and falsely make
reference to or otherwise create the wrongful and false impression that Plaintiff
Lenox Financial is an unethical organization that routinely lies to and deceives it
customers and own loan officers.

19. The aforementioned published statements wrongfully and falsely attack Mr.
Shibley in reference to his trade and profession and falsely accuse Mr. Shibley of
being or otherwise create the wrongful and false impression that Mr. Shibley is an
unethical business owner, a crook, and a liar.
It is reasonably believed that Defendants have made further false and
defamato~y
statements about Plaintiffs in writing, on their radio program, and to
other persons directly.
Prior to making these wrongful, false, and disparaging statements and
accusations, Defendants did not conduct any credible investigation or diligence of
Lenox Financial, of its internal workings or business practices, of its disclosure
practices, of its investor or lender relationships, of its customer relationships, of its
internal quality control mechanism, or of its proprietary internet based internal
management and interface programs.
All these statements were made either knowing that they were false or were
made with a reckless disregard for their accuracy.
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20. Defendants have made these statements with the malicious intent to discredit
Lenox Financial as an organization and to discredit Mr. Shibley personally in his
trade and profession and with the malicious intent to profit off this denigration.
Further, in order to obtain commercial advantage and financial gain,
Defendants did deliberately make such misrepresentations in an attempt to
discourage customers from using or engaging Lenox Financial and to divert
prospective customers away from Lenox Financial's website and to Defendants'
Website and its web based "mortgage shopping system" operated within the
Defendants' Website, which is alleged to be a "lead" and profit generator.
To accomplish this scheme to discredit Plaintiffs, and drive internet traffic
and prospective customers away from Lenox Financial and into Defendants'
!'mortgage shopping system", it is alleged that Defendants, and potentially others
working in conjunction with Defendants, have embedded Lenox Financial's
marked and trademarked business and trade name as "meta tags" within the
computer code in their Website. The meta tags are not visible to a typical
20

21. computer user but cause search engines looking for "Lenox Financial" to list
Defendants' Website with the aforementioned disparaging and defamatory
"review" in the search results.
As a consequence, when prospective Lenox Financial customers are
searching for information on "Lenox Financial" on Google the disparaging and
defamatory "review" of Lenox Financial by Defendants appears on the same page
as the main Lenox Financial web site referenced above. This "review" contains
links to all of the aforementioned disparaging articles noted in paragraph 33 above.
It is expressly alleged that Defendants have purposefully directed these
wrongful efforts at residents and property owners in the State of Georgia and have
in fact derived profits from business dealings with residents and property owners in
the State of Georgia by and through their Website.
It is expressly alleged that these false and disparaging statements have been
read and reviewed by potentially thousands of residents of Georgia, residents of
Georgia who are former customers or clients of Lenox Financial, current customers
21

22. or clients of Lenox Financial, or who are prospective customers or clients of Lenox
Financial, as well as by residents of Georgia who may simply desire to have more
information about Lenox Financial. It is further alleged that these false and
disparaging statements have been read and reviewed by potentially thousands of
residents of other states, residents who may be former customers, current
customers, or prospective customers of Lenox Financial.
In truth, Lenox Financial is a highly ethical organization that tangibly
demonstrates its commitment to integrity by voluntarily undertaking a fiduciary
obligation to its customers. The aforementioned false statements that expressly
state or otherwise create the impression that Lenox Financial is an unethical
organization are utterly and unequivocally untrue.
In truth, Mr. Shibley is highly ethical in his business and professional
dealings. He has never knowingly made any false statement to a customer, has
never deceived any customer into selecting a "no closing cost" mortgage product,
has never authorized any loan officer to do so, nor has he ever tolerated any such
conduct from any loan officer or representative of Lenox Financial. The

23. aforementioned false statements that expressly state or otherwise create the
impression that Mr. Shibley is unethical in his business dealings are utterly and
unequivocally untrue.
In truth, as a matter of company policy, the comparative benefits of "no
closing cost" products as compared to "traditional" products are fully disclosed to
each and every consumer. As a matter of corporate policy, the details of every
transaction are klly disclosed by each loan officer verbally, on every Good Faith
Estimate, and at every closing. Additionally, Lenox Financial makes use of
proprietary, state of the art technology to ensure that each loan officer has the most
up to date market information with which to inform the customer.
It is alleged that every Georgia resident and every person who has read or
otherwise been exposed to these false, disparaging statements has been confused,
negatively impacted, and lead astray as to the true nature, characteristics and
qualities of the business practices and commercial activity of Lenox Financial and
as to the integrity of the services and products offered by Lenox Financial.

24. As a direct consequence, some who have read or otherwise been exposed to
these false, disparaging statements have chosen not to do business with Lenox
Financial, thereby depriving Lenox Financial of sales and revenues, and some have
been wrongfully enticed to do business with Defendants.
It is alleged that, as a result of these false and disparaging statements,
Plaintiffs' good name and reputation has been tarnished and Plaintiffs' have been
financially damaged in an amount greatly in excess of seventy five thousand
dollars ($75,000.00) and that, in addition, Defendants have derived wrongful
profits from residents of and property owners in the State of Georgia as well as in
other states in which Plaintiffs do business.
COUNT I: TRADEMARK INFRINGEMENT UNDER LANHAM ACT
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 5 1 above.

25. The name Lenox Financial Mortgage is the subject of a valid and subsisting
trademark registration, U.S. Registration No. 2,957,239. This mark was registered
on May 3 1,2005. Although the full reading of the trademark is "Lenox Financial
Mortgage Corp.", it is clearly encompasses the name "Lenox Financial Mortgage",
and selves to protect variations of the entities operating with this name, including
Plaintiff Lenox Financial Mortgage, LLC.
Further, name "Lenox" is the subject of a valid and subsisting trademark
registration, U.S. Registration No. 3,384,161. This mark was registered on
February 19,2008. Likewise, this mark serves to protect the entities operating
with this name, including Plaintiff Lenox Financial Mortgage, LLC.
Without permission, Defendants' have used, and continue to use, this mark
in commerce as "meta tags" within the Defendants' Website.
Defendants' use of Plaintiffs registered marks as meta tags on its Website
was intentional and was for the purpose of misleading and confusing consumers
and for the purpose of discrediting Lenox Financial and wrongfully diverting
25

26. customers seeking information on Lenox Financial into Defendant's "mortgage
shopping system", a sub-system within Defendant's Website designed to generate
mortgage leads which are reasonably believed to have been sold to competing
mortgage companies.
Defendants' use of these registered trademarks as meta tags in its Website
constitutes infringement of Lenox Financial's trademark in violation of the
Lanham Act, 15 U.S.C. sections 1114.
As a result of Defendants' infringement, consumers have been and continue
to be confused and mistaken as to the integrity of Lenox Financial, it's products,
it's owner, and it's operations, and in particular confused and mistaken with the
comparison made to companies, products or individual "mortgage experts"
promoted by Defendants.
Plaintiffs have been damaged by fie aforementioned acts in an amount to be
determined a trial but unquestionably in excess of seventy five ($75,000.00).
Defendant's use of Lenox Financial's registered marks and trademark as meta tags
26

27. was undertaken by Defendants intentionally, maliciously and in bad faith.
Therefore, Plaintiffs are entitled to recover, in addition to actual damages, treble
damages as authorized by the Lanham Act, exemplary damages and attorney's
fees.
In addition, Defendant's conduct, if it continues unchecked, will result in
irreparable harm to Plaintiffs and, specifically, to the goodwill associated with
Lenox Financial's registered marks. Therefore, this court should temporarily,
preliminary and permanent enjoin Defendant from using any of Plaintiffs
registered marks as meta tags in their Website.
COUNT 1 : FALSE PROMOTION AND ADVERTISING UNDER
1
THE LAM-IAM ACT
61.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 60 above.
In furtherance of their plan to promote and advertise their own services and
businesses, Defendants have made utterly false, disparaging and defamatory
statements about Plaintiffs, statements which misrepresent the nature,
27

28. characteristics and qualities of Plaintiffs' services, with the malicious intent to
discredit Plaintiffs and drive internet traffic into their lead generator.
While so doing, Defendants have mislead and deceived consumers by
making these false and disparaging statements about Plaintiffs and, furfher, by
holding themselves out as presumptively objective "truth" seekers and "insiders"
when, in fact, they have made no credible investigation of Plaintiffs, have no
"inside" information or perspective on Lenox Financial, and have no intention of
providing objective information, but rather seek to disparage and discredit
Plaintiffs, confuse consumers, engender mistake so as to generate profits from this
deception by wrongfully luring consumers to their Website.
The false andmisleading statements made about Plaintiffs are intentionally
used to persuade customers and potential customers of Lenox Financial not to trust
or associate with LenoxFinancial and wrongfully entice them, instead, to trust and
associate with Defendants and utilize the "mortgage shopping system" promoted
on their Website.

29. Defendants' false and misleading descriptions and misrepresentations
constitute false advertising in violation of the Lanham Act 15 U.S.C. section
1i25(a)(l)(b) as they misrepresent the nature, characteristics and qualities of the
services offered by and commercial activities of Plaintiffs.
Defendants have caused their false and deceptive promotional scheme to
enter into interstate commerce in the State of Georgia and this District, as well as
in other states, which has had a material effect on the purchasing decisions of
mortgage consumers in the State of Georgia and this District, as well as in other
states, which, in turn, has affected interstate commerce.
It is understood and believed that Plaintiffs have been damaged by the
reliance of mortgage consumers and prospective consumers in the State of Georgia
and elsewhere upon Defendants' false, misleading and disparaging statements and
false advertising and promotions noted herein.
It is understood and believed that Plaintiffs have also been damaged because
they have lost sales, suffered a loss of goodwill, and have been required to spend
29

30. resources to address and counter these misstatements and false advertisements.
Further, Defendants have presumptively reaped unjustified profits by their
misstatements and false advertisements.
Defendants' false advertising, if allowed to go unchecked, will irreparably
damage Plaintiffs. Therefore, in additional to causing damages and lost profits,
this Court should temporarily, preliminarily, and permanently enjoin Defendants
from false advertising and continuing its campaign to seek to profit from
wrongfully disparaging Plaintiffs.
COUNT 1 1 TRADEMARK DILUTION BY TARNISHMENT UNDER
1:
FEDERAL TRADEMARK DILUTION ACT
70.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 69 above.
Given the success and reach of Lenox Financial, in particular in the State of
Georgia and the Northern District, the trade name and mark "Lenox Financial"
may properly be considered a "famous mark" under the Lanham Act, 15 U.S.C.
section 1125(c)(2)(a).
30

31. The disparaging and defamatory statements noted herein serves to dilute by
tamishment the "famous mark" under the Lanham Act 15 U.S.C. section
1125(c)(2)(c) and serve to erode and lessen the power of the famous mark to
provide assurances to customers of the quality and integrity they should expect in
dealing with Lenox Financial.
Due to the unlawful acts of Defendants, there has been actual injury to the
economic value of Plaintiffs' famous mark.
Plaintiffs are entitled to such injunctive relief and, due to the fact that
Defendants have willfully and maliciously intended to cause dilution by and
through their campaign of disparagement, damages as authorized by the Lanham
Act for the tarnishment to Plaintiffs' famous mark.
COUNT IV:COMMON LAW INFRINGEMENT
75.

32. Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 74 above.
In addition to the formal registered marks noted above, Plaintiffs have
common law interests and intellectual property rights in their business and trade
names and the variations used.
Without permission, Defendants' have used, and continue to use, Plaintiffs'
business name and trade names in commerce as meta tags in Defendants' Website,
which constitutes common law infringement of Plaintiffs' interests and intellectual
property rights as well as other potential infringements.
Plaintiffs have been damaged by this common law infringement in an
amount to be determined a trial but certainly in excess of seventy five thousand
dollars ($75,000.00). Defendants' use of Plaintiffs' business and trade names as
meta tags in this Website was undertaken by Defendants intentionally, maliciously
and in bad faith. Therefore, Plaintiffs are entitled to recover, in addition to actual
damages, exemplary damages and attorney's fees.
32

33. COUNT V: DEFAMATION BY DEFENDANTS AGAINST PLAINTIFF
MR. SHIBLEY
Plaintiffs incorporate and re-allege as if filly set forth herein paragraphs 1
through 78 above.
In connection with their competition against Plaintiffs, and in furtherance of
Defendants' business and with the intent to secure a commercial advantage and
financial gain, Defendants have, without privilege, intentionally made and
published false statements and charges concerning Mr. Shibley in reference to his
trade, office and profession, statements and charges calculated to injure him
therein.
These false statements noted herein and potentially others have been made
and published and, up to the date and time of the fining of this Complaint, continue
to be made and published by Defendants without privilege and with malice
calculated to injure.

34. These false statements concerning Plaintiffs made and published by
Defendants were and are defamatory as to Mr. Shibley, were and are directly
defamatory as to the commercial reputation and standing of Plaintiffs in their
business, and further cast Plaintiffs in a negative and false light to their customers
and others.
Because Defendants have attacked Mr. Shibley in reference to his trade,
office or profession, under O.C.G.A. section 51-5-4, damage is inferred and proof
of special damages is not required to support this claim.
Nonetheless, as a direct and proximate result of these false and malicious
statements by Defendants, Mr. Shibley has in fact suffered damages to his
professional reputation and has suffered damages relative to his interest in Lenox
Financial.
85.
The conduct of Defendants is willful, wanton, malicious and taken in
reckless disregard of Plaintiffs' rights, as well as in disregard of the harm it is

35. causing and is foreseeably likely to cause hlr. Shibley, so that punitive damages
should be imposed on Defendants.
COUNT VI: TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
86.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 85 above.
Plaintiffs have originated loans and handled mortgage transactions for
thousands of customers in the State of Georgia and in other states.
Plaintiffs maintain advantageous business relations with these former
customers and clients.
Plaintiffs' business relations are ongoing relationships wherein Plaintiffs
will often engaging in subsequent transactions, sometimes several subsequent
transactions, with these customers and clients with whom Plaintiffs have done
business.

36. Plaintiffs fudher have contact with thousands of prospective customers and
clients who are reached by Plaintiffs' advertising in Georgia and various other
states, who search for Lenox Financial on Google or various other search engines,
who visit Plaintiffs' web site, and who contact and consider contacting Lenox
Financial here in Georgia for information and assistance with potential business
transactions.
Acting improperly and without privilege, and purposely and with malice
with the intent to injure, the Defendants have wrongfully interfered with these
relationships and have induced third parties, namely prospective mortgage
customers, both in the State of Georgia and other states, not to enter into or
continue a business relationship with Lenox Financial.
Through their wrongfid acts of interference, Defendants have caused
financial injury to Plaintiffs.

37. Defendants' interference with Plaintiffs' business relationships and
prospective relationships has been willful, wanton, malicious and in reckless
disregard of Plaintiffs' rights, as well as in disregard of the harm that they have
caused and are foreseeably likely to cause Plaintiffs, so that punitive damages
should be imposed.
COUNT VII: DAMAGES FOR CIVIL CONSPIRACY TO TORTIOUSLY
INTERFERE WITH BUSINESS RELATIONS
94.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs I
through 93 above.
Defendants, acting in concert with each other and other persons and/or
entities, agreed to take collective action to interfere with Plaintiffs' ongoing and
prospective business relationships.
In furtherance of their conspiracy and scheme, Defendants, acting in concert
with each other and other persons and/or entities, and acting improperly and
without privilege, and purposely and with malice with intent to injure, have taken

38. overt and wrongful acts to interfere with, and have in fact interfere with, Plaintiffs'
ongoing and prospective business relationships.
97.
Defendants' conspiratorial acts are designed to maliciously disparage and
discredit Plaintiffs, are calculated to injure Plaintiffs' business, and allow
Defendants to compete unfairly with Plaintiffs' in the mortgage information
marketplace.
98.
Through their conspiratorial acts, Defendants have caused financial injury to
Plaintiffs.
99.
Defendants' conspiracy to interfere with Plaintiffs business relationships has
been carried out in a willful, wanton, malicious and reckless disregard of Plaintiffs'
rights, such that punitive damages should be imposed.
COUNT W I : MALICIOUS INJURY TO PLAINTIFFS' BUSINESS
100.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 99 above.
101.
38

39. Defendants made either knowing and intentional, or recklessly false
statements and representations of material fact regarding Plaintiffs' business and
business practices, and Defendants' wrongful conduct described above has been
made and undertaken with the knowledge of Plaintiffs' rights and interests and
with the malicious intent to discredit Plaintiffs and with the calculated intent to
drive customers who search for Lenox Financial online through Google or other
search engines away from Lenox Financial and into Defendants' "mortgage
shopping system".
102.
Defendants have acted with malice and without privilege. Defendants'
calculated disparagements, described above, were known to be false when made or
were made with a reckless disregard for their truth, were intended to be relied
upon, and were made without reasonable justification, and have been relied upon
by Plaintiffs' customers and prospects to the detriment of Plaintiffs.
103.
As a direct and proximate result of Defendants' conducts, Plaintiffs are
entitled to and have suffered damages, including without limitation, loss of
goodwill, loss of revenue from customers and prospective customers, and the costs
associated with the litigation.
104.
39

40. Defendants' conduct has been motivated by spite, has been willful, wanton
and malicious has been conducted in reckless disregard of Plaintiffs' rights and
interests, as well as for the harm they have caused and were foreseeably likely to
cause Plaintiffs and, therefore, punitive damages should be imposed to deter such
conduct in the future.
COUNT IX: DAMAGES FOR CIVIL CONSPIRACY TO MALICIOUSLY
INJURE PLAINTIFF'S BUSINESS
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 104 above.
Defendants, acting in concert with each other and potentially other persons
andlor entities, agreed to take collective actions to malign, disparage and discredit
Plaintiffs and to drive internet traffic and current and prospective customers of
Lenox Financial away from Lenox Financial and into Defendants' "mortgage
shopping system", a lead and profit generator for Defendants, contained in their
Website.

41. In furtherance of their conspiracy and sLheme, Defendants, acting in concert
with each other and other persons andlor entities, have taken overt and wrongful
acts intended to malign, disparage and discredit Plaintiffs and to drive internet
traffic and current and prospective customers of Lenox Financial away from Lenox
Financial and into Defendants' "mortgage shopping system", a lead and profit
generator for Defendants, contained in their Website.
108.
Defendants' conspiratorial acts are designed to disparage and discredit
Plaintiffs, injure Plaintiffs' business, and allow them wrongfully to siphon
mortgage prospects who conduct internet research internet from Lenox Financial
for Defendants' financial gain.
109.
Through their conspiratorial acts, Defendants have proximately caused
injury to Plaintiffs.
110.
Defendants' conspiracy to disparage and discredit Plaintiffs and to profit
wrongfully therefrom has been carried out in a willful, wanton, malicious and
reckless disregard of Plaintiffs' rights and interests, such that punitive damages
should be imposed.

42. COUNT X: VIOLATION OF THE GEORGIA UNIFORM DECEPTIVE TRADE
PRACTICES ACT
111.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 110 above.
112.
Through wrongful use of Plaintiffs' trademarks and trade name, fkrther
through the wrongful and false statements noted above, Defendants have created a
likelihood of confbsion and misunderstanding regarding Plaintiffs and their
business practices. Among other actions, Defendants have engaged in deceptive
trade practices by disparaging the business, services, and business practices of
Plaintiffs by false and misleading misrepresentations of fact.
113.
As such, Defendants have violated the provision of O.C.G.A. section 10-1-
372(a)(8), among other provisions of the Uniform Deceptive Trade Practices Act.
114.
As a result of Defendants' ongoing deceptive trade practices, Plaintiffs are
entitled to injunctive relief to remedy these violations.
11s.

43. Plaintiffs are also entitled to recover their attorney's fees and costs incurred
in connection with this action and to any and all damages authorized by this
statute.
COUNT XI: VIOLATION OF THE GEORGIA FAIR BUSINESS PRACTICES
ACT OF 1975
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 115 above.
117,
Through wrongful use of Plaintiffs' trademarks and trade name, further
through the wrongful and false statements noted above, Defendants have created a
likelihood of confusion and misunderstanding regarding Plaintiffs and their
business practices. Among other actions, Defendants have engaged in unfair
business practices by disparaging the business, services, and business practices of
Plaintiffs by false and misleading misrepresentations of fact.
118.
As such, Defendants have violated the provision of O.C.G.A. section 10-1-
393(b)(8), among other provisions of the Georgia Fair Business Practices Act of
1975.

44. Defendants have further violated the provisions of O.C.G.A. section 10-1-
393.5 by engaging in internet activities that operate as a fraud and deceit upon
Plaintiffs and upon those customers, clients, and members of the general public
who are wrongfully influenced by Defendants' false and misleading
representations.
120.
As a result of Defendants' ongoing unfair practices, Plaintiffs are entitled to
those remedies authorized in O.C.G.A. section 10-1-399 including, without
limitation, injunctive relief, actual damages, treble damages, and attorney's fees.
COUNT XZT: VIOLATION OF THE GEORGIA F&SE ADVERTISING ACT
121.
Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 120 above.
122.
Defendants' advertisements and representations reference above contain
untrue statements of fact, either known by Defendants to be untrue, or made with a
reckless disregard as to their accuracy and integrity, that directly relate to the
qualities and characteristics of Defendants' services promoted.
123.

45. Defendants' actions constitute false advertising in violation of O.C.G.A.
section 10-1-421.
124.
As a result of Defendants' unlawful acts, Plaintiffs have suffered and
continue to suffer damages. In addition, Defendants have reaped unjustified profits
as a result of the conduct.
125.
Plaintiffs are also entitled to recover their attorney's fees and costs incurred
in connection with this action.
126.
Defendants' false advertising has caused, and will continue to cause,
irreparable harm to Plaintiffs unless enjoined. Hence in addition to charges and
profits, this Honorable Court should award temporary, preliminary and permanent
injunctive relief against Defendants and, in addition, should order the Defendants
to undertake corrective advertising.
COUNT XIII: UNFAIR COMPETITION AND COMMERCIAL
DISPARAGEMENT
127.
Plaintiffs incorporates and alleges as if fully set forth herein paragraphs 1
through 126 above.

46. 128.
Defendants actions complained of above constitute acts of unfair
competition and commercial disparagement in violation of the common law of the
State of Georgia and other states.
129.
Defendants either knew their above described false, disparaging, and
misleading statements were false or have made these with a reckless disregard for
their accuracy and integrity, intended for the above described statement and actions
to result in harm to the business and property interest of Plaintiffs, or should have
recognized that should reckless statements and actions would have this result.
130.
As a result of Defendants' wrongful acts and misrepresentations, Plaintiffs
have suffered and continue to suffer damages and Defendants have evidently
reaped unjustified profits.
Defendants' commercial disparagement has caused, and will continue to
cause harm to Plaintiffs unless enjoined. Hence, in addition to damages and profits
as authorized by statute, this Court should award temporary, preliminary, and
permanent injunctive relief against Defendants.
COUNT XIV: PUNITIVE DAMAGES
46

47. Plaintiffs incorporate and re-allege as if fully set forth herein paragraphs 1
through 131 above.
That Defendants will be shown to have engaged in tortious conduct which
amounts to willful misconduct, malice, wantonness, and that entire want of care
that raises the presumption of a conscious indifference to the consequences
according to O.C.G.A. section 51-12-5.1(b) and thereby justifying an award of
punitive damages in favor of Plaintiffs in an amount sufficient to penalize and
punish Defendants.
COUNT X V : ATTORNEY'S FEES
134.
The aforementioned paragraphs are hereby incorporated into this Count.
That Defendants have engaged in tortious conduct, have acted in bad faith,
have forced this action, and have forced Plaintiffs to incur attorney's fees and costs
of prosecuting his action in addition to unnecessary trouble and expense thereby

48. justifying an award of attorney's fees and costs of this action under O.C.G.A.
section 9-15-14.
COUNT XVI: IN THE ALTERNATIVE. NEGLIGENT
MISREPRESENTATION
136.
Plaintiffs hereby reference in this count paragraphs 1 through 5 1 and re-
alleges and re-asserts the factual assertions and averments made therein expressly
omitting, however, any reference to any knowing misstatement, bad faith motive,
malicious intent or reckless disregard on behalf of the Defendants, which has been
plead above in the first alternative.
In the second alternative, Plaintiffs plead that, if said false statements and
misrepresentations were not make knowingly, with malicious intent, or with a
reckless disregard as to their accuracy, which Plaintiffs assert in the first
alternative, then they were made with a negligent disregard as to their accuracy.
Notwithstanding, the statements are still utterly false and damaging.

49. Defendants owe Plaintiffs a duty of reasonable care not to publish careless,
false statements about Plaintiffs on their Website or to otherwise improperly or
negligently disparage or damage Plaintiffs.
Defendants have breached this duty by making the false statements noted
herein in a careless and negligent manner without first properly investigating the
business practices and integrity of Plaintiffs or otherwise securing sufficient
evidence to justify Defendants' outrageous public references to Plaintiffs as
professionally unethical and corrupt.
The Defendants motives notwithstanding, the Defendant have proximately
caused Plaintiffs significant damages, and the Defendants are still liable to
Plaintiffs for all damages derived from for these false statements, which damages
are well in excess of seventy five thousand dollars ($75,000.00), even if
Defendants did not act knowingly, in bad faith, or in reckless disregard of the
accuracy of their statements and the truth.
RELIEF REOUESTED

50. WHEREFORE, Plaintiffs humbly and respectfidly request the following
relief:
(a) pursuant to Rule 38, a trial by jury on all issues and matters upon which a
jury may render judgment;
(b) a temporary and preliminary injunction preventing and enjoining Defendants
from:
(1) using any of Plaintiffs' trademarks or trade names, or any part of
Plaintiffs' trademarks or trade names, as "meta tags" or as
any part of the "meta data" on Defendants' Website or on any of
website owned or operated by Defendants;
(2) making any false or wrongfully disparaging statements about
Plaintiffs' on any of Defendants' Website or on any of their other
publications;
(3) engaging in any acts of false advertising;
(4) violating the Georgia Uniform Deceptive Practices Act;
(5) violating the Georgia Fair Business Practices Act; and
(6) violating the Georgia False Advertising Act;
(c) granting judgment in favor of all Defendants as authorized by law and on
each and every court of the Complaint, as applicable, and awarding all actual,

51. consequential and/or compensatory damages as proved by Plaintiffs at trial in an
amount certainly to exceed $75,000.00;
(d) awarding treble damages as authorized by law in an amount certainly to
exceed $75,000.00;
(e) awarding punitive damages as authorized by law;
(f) awarding all costs of this action including reasonable attorney's fees;
(g) ordering an accounting of any and all profits derived from any wronghl
diversion of internet traffic away from Plaintiffs' website and into Defendants'
"mortgage shopping system";
(h) grant such other and further relief as this Honorable Court deems
appropriate, just and equitable.
This 4th day of August, 2010.
Respecply Submitted,
- -
Russell H. Hippe, I11
The Law Office of Russell H. Hippe, 11 LLC
1,
One Midtown Plaza
1360 Peachtree Street, Suite 1205
Atlanta, Georgia 30309
(404) 898-1246 -office
(404) 550-2942 - cell

53. LR 7.1D CERTIFICATION
In accordance with LR 7. ID, the undersigned counsel certifies that this
Complaint has been prepared with of the font and point selections approved by the
Court in said rule.
This 4th day of August, 2010.
. dd
Respectfu y Submitted,
k L 4
Russell H. Hivve, 1 1
- 1
A -
The Law Office of Russell H. Hippe, 1 1 LLC
1,
One Midtown Plaza
1360 Peachtree Street, Suite 1205
Atlanta, Georgia 30309
(404) 898-1246 - office
(404) 550-2942 - cell
(404) 898-1241 -fax
rhippe@,rh3law.com
-