0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION

UNITED STATES et al. ex rel. SZYMONIAK,

Plaintiffs, Case No. 10-cv-1465

v. Judge Joseph F. Anderson, Jr.
AMERICAN HOME MORTGAGE
SERVICING, INC., et al.
Defendants.

DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED

COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

Defendants1 respectfully move the Court to dismiss Relator Szymoniak’s Second

Amended Complaint (“SAC”) with prejudice for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1).

As elaborated in the Memorandum of Law in Support of Defendants’ Motion to Dismiss

the Second Amended Complaint for lack of Subject Matter Jurisdiction, filed herewith, the SAC

should be dismissed with prejudice because Szymoniak cannot satisfy her burden of establishing

the Court’s jurisdiction over her claims. See U.S. ex rel. Black v. Health & Hosp. Corp. of

Marion Cnty., 494 F. App’x 285, 292 (4th Cir. 2012) (the relator has the burden of proving

subject matter jurisdiction). To overcome the jurisdiction-removing public disclosure bar in the

False Claims Act (“FCA”), Szymoniak is required to prove that her claims are not even partly

1
The Defendants joining this motion are: Bank of America Corp., The Bank of New York
Mellon Corporation, CitiMortgage, Inc., Citibank, N.A., Deutsche Bank National Trust
Company, Deutsche Bank Trust Company Americas, Homeward Residential, Inc. f/k/a
American Home Mortgage Servicing, Inc., HSBC Bank USA, N.A., JPMorgan Chase Bank,
N.A., Saxon Mortgage Servicing, Inc., U.S. Bank, N.A., Wells Fargo Bank, N.A., and Wells
Fargo Home Mortgage, d/b/a America’s Servicing Company (incorrectly named as a separate
entity from Wells Fargo Bank, N.A.) (collectively, “Defendants”).
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 2 of 7

“based upon” allegations or transactions that have been publicly disclosed, or, alternatively that

she is an “original source” of those allegations within the meaning of the statute. Id. at 294-96.

Szymoniak fails to do so because:

1. The allegations underlying her claims were publicly disclosed in qualifying public

disclosures before Szymoniak commenced this action;

2. Szymoniak’s claims are based either entirely or largely upon the qualifying public

disclosures; and

3. Szymoniak is not an original source of the information on which her allegations are

based because she lacks direct and independent knowledge of the information.2

Because the Court does not have subject matter jurisdiction over Szymoniak’s federal

claims, it also lacks jurisdiction over her state and local claims. See Stratton v. Mecklenburg

Cnty. Dep't of Soc. Servs., 521 F. App’x 278, 291 n.25 (4th Cir. 2013) (“When a district court

dismisse[s] federal claims for lack of subject matter jurisdiction,” the result is that “there was

never a valid claim to which the state claims could be considered supplemental, and dismissal of

the state claims is also required.”) (citation omitted). Even if the Court had supplemental

jurisdiction over the state and local claims, however, the claims would still fail because they

would be precluded by the public disclosure bar contained in each of the relevant statutes.

Defendants hereby request the opportunity to present oral argument in support of this

motion to dismiss.

DATED this 15 day of January, 2014.

2
Although inapplicable here, Szymoniak’s claims also would fail under the public disclosure bar
as amended in March 2010, because the underlying allegations are substantially similar to
allegations that were publicly disclosed in the news media and federal court proceedings, and her
allegations did not materially add to the information already in the public domain. Moreover,
Szymoniak is not an original source under the amended statute.

-2-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 3 of 7

Respectfully Submitted,

By: /s/ E. Bart Daniel By: /s/ Alice W. W. Parham

E. Bart Daniel (Fed. ID No. 9002) Alice W. W. Parham (Fed ID No. 9431)
([email protected]) ([email protected])
7 State Street J. Theodore Gentry (Fed. ID No. 5566)
Charleston, SC 29401 ([email protected])
Telephone: 843.722.2000 Matthew T. Richardson
Facsimile: 843.722.6254 (Fed. ID No. 7791)
([email protected])
-and- WYCHE, PA
 P.O. Box 12247
Douglas A. Axel (pro hac vice Columbia, SC 29211-2247
application pending) Telephone: 803.254.6542
([email protected]) Facsimile: 803.254.6544
Anand Singh (pro hac vice application
pending) -and-
([email protected])
SIDLEY AUSTIN LLP Matthew D. Ingber (pro hac vice)
555 West Fifth Street
Los Angeles, CA 90013 ([email protected])
Telephone: 213.896.6000 Christopher J. Houpt (pro hac vice)
Facsimile: 213.896.6600 ([email protected])
MAYER BROWN LLP
Attorneys for Defendant Bank of 1675 Broadway
America Corp. New York, NY 10019
Telephone: 212.506.2380
Facsimile: 212.849.5830

Attorneys for Defendant The Bank of New

York Mellon Corp.

-3-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 4 of 7

By: /s/ A. Mattison Bogan By: /s/ Alice W. W. Parham

A. Mattison Bogan (Fed. ID No. 9826) Alice W. W. Parham (Fed ID No. 9431)
([email protected]) ([email protected])
NELSON MULLINS RILEY & J. Theodore Gentry (Fed. ID No. 5566)
SCARGOROUGH LLP ([email protected])
Meridian, 17th Floor Matthew T. Richardson
1320 Main Street (Fed. ID No. 7791)
Columbia, SC 29201 ([email protected])
Telephone: 803.799.2000 WYCHE, PA
Facsimile: 803.256.7500 P.O. Box 12247
Columbia, SC 29211-2247
-and- Telephone: 803.254.6542
Facsimile: 803.254.6544
Maria T. Vullo (pro hac vice application
pending) -and-
([email protected])
PAUL, WEISS, RIFKIND, WHARTON Michael S. Kraut (pro hac vice
& GARRISON LLP application pending)
1285 Avenue of the Americas ([email protected])
New York, NY 10019 MORGAN, LEWIS & BOCKIUS LLP
Telephone: 212.373.3000 101 Park Avenue
Facsimile: 212.757.3990 New York, NY 10178
Telephone: 212.309.6000
Attorneys for Defendants CitiMortgage, Inc. Facsimile: 212.309.6001
and Citibank, N.A.
Attorneys for Defendants Deutsche Bank
National Trust Company and Deutsche
Bank Trust Company Americas

-4-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 5 of 7

By: /s/ Melissa J. Copeland By: /s/ B. Rush Smith III

Melissa J. Copeland (Fed. ID No. 6241) B. Rush Smith III (Fed. ID No. 5031)
([email protected]) ([email protected])
SCHMIDT & COPELAND, LLC NELSON MULLINS RILEY &
1201 Main Street, Suite 1100 SCARBOROUGH LLP
Columbia, SC 29201 1320 Main Street
Telephone: 803.748.1342 Columbia, SC 29201
Facsimile: 803.748.1210 Telephone: 803.799.2000
Facsimile: 803.256.7500
-and-
-and-
Gerard E. Wimberly, Jr. (pro hac vice)
([email protected]) Michael O. Ware (pro hac vice
David R. Dugas (pro hac vice) application pending)
([email protected]) ([email protected])
Daniel T. Plunkett (pro hac vice) Jennifer M. Rosa
([email protected]) ([email protected])
Gabriel A. Crowson (pro hac vice) MAYER BROWN LLP
([email protected]) 1675 Broadway
Melissa H. Harris (pro hac vice) New York, NY 10019
([email protected]) Telephone: 212.506.2500
MCGLINCHEY STAFFORD, PLLC Facsimile: 212.262.1910
601 Poydras Street, 12th Floor
New Orleans, LA 70130 Attorneys for HSBC Bank USA, N.A.
Telephone: 504.586.1200
Facsimile: 504.596.2800

Attorneys for Defendant Homeward

Residential, Inc., f/k/a American Home
Mortgage Servicing, Inc.

-5-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 6 of 7

By: /s/ Joseph P. Griffith, Jr. By: /s/ James K. Lehman

Joseph P. Griffith, Jr. (Fed. ID No. 2473) James K. Lehman (Fed. ID No. 5378)
([email protected]) ([email protected])
JOE GRIFFITH LAW FIRM, LLC Thad H. Westbrook (Fed. ID No. 7561)
Seven State Street ([email protected])
Charleston, SC 29401 NELSON MULLINS RILEY &
Telephone: 843.225.5563 SCARBOROUGH LLP
Facsimile: 843.722.6254 Meridian, 17th Floor
1320 Main Street
-and- Columbia, SC 29201
Telephone: 803.799.2000
Robert M. Brochin (pro hac vice Facsimile: 803.256.7500
application pending)
([email protected]) -and-
Brian M. Ercole, Esquire (pro hac vice
application pending) Mary Gail Gearns (pro hac vice
([email protected]) application forthcoming)
MORGAN LEWIS & BOCKIUS LLP ([email protected])
200 South Biscayne Blvd., Suite 5300 Colleen O’Loughlin (pro hac vice
Miami, FL 33131-2339 application forthcoming)
Telephone: 305.415.3000 ([email protected])
Facsimile: 305.415.3001 BINGHAM MCCUTCHEN LLP
399 Park Avenue
Attorneys for Defendant JPMorgan Chase New York, NY 10022
Bank, N.A. Telephone: 212.705.7000
Facsimile: 212.752.5378

Attorneys for Defendant Saxon Mortgage

Services, Inc.

-6-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234 Page 7 of 7

By: /s/ Jana B. Baker By: /s/ J. Walker Coleman, IV

Jana B. Baker (Fed. ID No. 9944) J. Walker Coleman, IV
([email protected]) (Fed. ID No. 6007)
John C. Hawk (Fed. ID No. 9853) ([email protected])
([email protected]) K&L GATES LLP
Kevin A. Hall (Fed. ID No. 5375) 134 Meeting Street, Suite 200
([email protected]) Charleston, SC 29401
WOMBLE CARLYLE SANDRIDGE & Telephone: 843.579.5600
RICE, LLP Facsimile: 843.579.5601
5 Exchange Street
Charleston, SC 29401 Attorney for Defendants Wells Fargo Bank,
Telephone: 843.722.3400 N.A. and Wells Fargo Home Mortgage,
Facsimile: 843.723.7398 d/b/a America’s Servicing Company
(incorrectly named as a separate entity)
-and-

Eric A. Dubelier (pro hac vice

application forthcoming)
([email protected])
Katherine J. Seikaly (pro hac vice
application forthcoming)
([email protected])
REED SMITH LLP
1301 K Street, NW
Suite 1100 East Tower
Washington, DC 20005
Telephone: 202.414.9200
Facsimile: 202.414.9299

Attorneys for Defendant U.S. Bank

National Association

-7-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 1 of 46

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION

UNITED STATES et al. ex rel. SZYMONIAK,

Plaintiffs,
Case No. 10-cv-1465
v.
Judge Joseph F. Anderson, Jr.
AMERICAN HOME MORTGAGE
SERVICING, INC., et al.
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’

MOTION TO DISMISS THE SECOND AMENDED
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 2 of 46

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................ 5
A. Szymoniak’s Motion To Dismiss Her Foreclosure Action ........................ 5
B. Other Public Disclosures of Foreclosure Documentation Issues
Before Szymoniak’s Investigation ............................................................. 7
C. Szymoniak’s Alleged Investigation and Findings of Foreclosure
Fraud ........................................................................................................ 10
D. Szymoniak’s Effort to Bootstrap a Qui Tam Action onto
Foreclosure Documentation Issues .......................................................... 11
E. The Government’s Investigation of DocX Was Triggered by
Someone Else ........................................................................................... 12
F. Further Media Coverage of Allegedly Fraudulent Assignments and
Foreclosure Mills ..................................................................................... 14
G. Szymoniak’s Testimony Admitting That Her “Findings” Are
Based on Assumptions and Not First-Hand Knowledge of Fraud ........... 15
ARGUMENT ............................................................................................................................... 17
I. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER
SZYMONIAK’S FCA CLAIMS ......................................................................... 17
A. Szymoniak’s Allegations Were Publicly Disclosed in Qualifying
Sources ..................................................................................................... 18
B. Szymoniak’s Claims Are “Based Upon” Qualifying Public
Disclosures ............................................................................................... 22
C. Szymoniak Is Not an “Original Source” of The Alleged Facts
Giving Rise to Her Claims ....................................................................... 27
II. THE STATE AND LOCAL CLAIMS ARE ALSO BARRED........................... 31
A. If the Federal Claims Are Dismissed, the Court Must Decline To
Exercise Supplemental Jurisdiction Over the State and Local
Claims ...................................................................................................... 31
B. The State and Local Claims Are Precluded by the Public
Disclosure Bar.......................................................................................... 31
1. All Claims (Except the New York Claim) Are Nearly
Identical to the Federal Claims and Fail for the Same
Reasons ........................................................................................ 31
2. The New York Claim Is Also Barred .......................................... 33
CONCLUSION ............................................................................................................................ 34

-i-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 3 of 46

TABLE OF AUTHORITIES
Page(s)
Cases

U.S. ex rel. Aflatooni v. Kitsap Physicians Servs.,

163 F.3d 516 (9th Cir. 1999) ...................................................................................................30

U.S. ex rel. Atkinson v. Pa. Shipbldg. Co.,

473 F.3d 506 (3d Cir. 2007).....................................................................................................28

Aurora Loan Services, LLC v. Sookoo,

941 N.Y.S.2d 503 (App. Div. 2012) ........................................................................................19

Bank of N.Y. v. Mulligan,

No. 07-29399, 2008 WL 2336993 (N.Y. Sup. Ct. June 3, 2008) ..............................................7

Bannon v. Edgewater Med. Ctr.,

406 F. Supp. 2d 907 (N.D. Ill. 2005) .......................................................................................33

U.S. ex rel. Barth v. Ridgedale Elec., Inc.,

44 F.3d 699 (8th Cir. 1995) .....................................................................................................28

U.S. ex rel. Beauchamp v. Academic Training Ctr., Inc.,

933 F. Supp. 2d 825 (E.D. Va. 2013) ..........................................................................21, 22, 30

U.S. ex rel. Black v. Health & Hosp. Corp. of Marion Cnty.,

No. 08-0390, 2011 WL 1161737 (D. Md. Mar. 28, 2011) ................................................27, 30

U.S. ex rel. Black v. Health & Hosp. Corp. of Marion Cnty.,

494 F. App’x 285 (4th Cir. 2012) .................................................................................... passim

U.S. ex rel. Carter v. Halliburton Co.,

No. 11-602, 2013 WL 5306645 (E.D. Va. Sept. 19, 2013) .....................................................21

U.S. ex rel. Colquitt v. Abbott Labs.,

864 F. Supp. 2d 499 (N.D. Tex. 2012) ....................................................................................32

Crosby v. City of Gastonia,

635 F.3d 634 (4th Cir. 2011) ...................................................................................................31

U.S. ex rel. Detrick v. Daniel F. Young, Inc.,

909 F. Supp. 1010 (E.D. Va. 1995) .........................................................................................30

Deutsche Bank National Trust Co. v. Castellanos,

No. 07-277, 2008 WL 123798 (N.Y. Sup. Ct. Jan. 14, 2008) .............................................6, 24

U.S. ex rel. Doe v. Staples, Inc.,

932 F. Supp. 2d 34 (D.D.C. 2013) ...........................................................................................21

-ii-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 4 of 46

TABLE OF AUTHORITIES (continued)

Page(s)
U.S. ex rel. Dugan v. ADT Sec. Servs.,
No. 03-3485, 2009 WL 3232080 (D. Md. Sept. 29, 2009) ......................................................27

U.S. ex rel. Gilligan v. Medtronic, Inc.,

403 F.3d 386 (6th Cir. 2005) ...................................................................................................21

Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,
130 S. Ct. 1396 (2010) .......................................................................................................17, 21

Grayson v. Adv. Mgmt. Tech.,

221 F.3d 580 (4th Cir. 2000) .............................................................................................28, 29

U.S. ex rel. Hafter v. Spectrum Emergency Care, Inc.,

190 F.3d 1156 (10th Cir. 1999) ...............................................................................................28

Harrison v. Westinghouse Savannah River Co.,

176 F.3d 776 (4th Cir. 1999) ...................................................................................................17

HSBC Bank USA, N.A. v. Taher,

962 N.Y.S.2d 301 (App. Div. 2013) ........................................................................................19

HSBC Bank USA, Nat’l Ass’n v. Antrobus,

No. 07-43299, 2008 WL 2928553 (N.Y. Sup. Ct. July 31, 2008) .............................................7

Indymac Bank, FSB v. Bethley,

No. 08-9615, 2009 WL 279304 (N.Y. Sup. Ct. Feb. 6, 2009)...................................................7

U.S. ex rel. Jones v. Collegiate Funding Servs.,

No. 07-290, 2011 WL 129842 (E.D. Va. Jan. 12, 2011) ...................................................21, 23

U.S. ex rel. Jones v. Collegiate Funding Servs.,

469 F. App’x 244 (4th Cir. 2012) ............................................................................................22

U.S. ex rel. Kraxberger v. Kansas City Power & Light Co.,

No. 11-0590, 2013 WL 4400434 (W.D. Mo. July 19, 2013)...................................................30

U.S. ex rel. Lopez v. Strayer Educ., Inc.,

698 F. Supp. 2d 633 (E.D. Va. 2010) ................................................................................21, 27

U.S. ex rel. May v. Purdue Pharma L.P.,

737 F.3d 908 (4th Cir. 2013) .......................................................................................18, 21, 22

U.S. ex rel. Oliver v. Philip Morris USA Inc.,

No. 08-0034, 2013 WL 2637032 (D.D.C. 2013) .....................................................................21

-iii-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 5 of 46

TABLE OF AUTHORITIES (continued)

Page(s)
Ping Chen ex rel. U.S. v. EMSL Analytical, Inc.,
No. 10-7504, 2013 WL 4441509 (S.D.N.Y. Aug. 16, 2013) ...................................................30

U.S. ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys.,

274 F. Supp. 2d 824 (S.D. Tex. 2003) .....................................................................................29

Rockwell Int’l Corp v. United States,

549 U.S. 457 (2007) .................................................................................................................29

U.S. ex rel. Rosner v. WB/Stellar IP Owner, L.L.C.,

739 F. Supp. 2d 396 (S.D.N.Y. 2010)......................................................................................21

U.S. ex rel. Siller v. Becton Dickinson & Co.,

21 F.3d 1339 (4th Cir. 1994) .............................................................................................21, 22

U.S. ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A., v. Prudential Ins. Co.,
944 F.2d 1149 (3rd Cir. 1991) .................................................................................................29

Stratton v. Mecklenburg Cnty. Dep't of Soc. Servs.,

521 F. App’x 278 (4th Cir. 2013) ...........................................................................................31

U.S. ex rel. Vuyyuru v. Jadhav,

555 F.3d 337 (4th Cir. 2009) ........................................................................................... passim

Wells Fargo Bank, N.A. v. Farmer,

No. 07-27296, 2008 WL 2309006 (N.Y. Sup. Ct. June 2008) ..................................................7

Wells Fargo Bank, N.A. v. Fisch,

959 N.Y.S.2d 260 (App. Div. 2013) ........................................................................................19

Whipple v. Chattanooga-Hamilton Cnty. Hosp. Auth.,

No. 3-11-0206, 2013 WL 4510801 (M.D. Tenn. Aug. 26, 2013)............................................33

U.S. ex rel. Wilson v. Graham Cnty. Soil & Water Conservation Dist.,
528 F.3d 292 (4th Cir. 2008) ...................................................................................................17

U.S. ex rel. Zizic v. Q2Adm’rs, LLC,

728 F.3d 228 (3d Cir. 2013).....................................................................................................28

Statutes

31 U.S.C. § 3730(e)(4)........................................................................................................... passim

740 ILCS 175/4(e)(4) .....................................................................................................................32

Cal. Gov’t Code § 12652(d)(3) ......................................................................................................32

-iv-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 6 of 46

TABLE OF AUTHORITIES (continued)

Page(s)
Chi. Mun. Code § 1-22-030(f) .......................................................................................................32

D.C. Code § 2-381.03(c-1)(2) ........................................................................................................32

Del. Code Ann. tit. 6, § 1206(c) .....................................................................................................32

Fla. Stat. Ann. § 68.087(3).............................................................................................................32

Haw. Rev. Stat. § 661-31 ...............................................................................................................32

Ind. Code Ann. § 5-11-5.5-7(f) ......................................................................................................32

Mass. Gen. Laws Ann. ch. 12, § 5G(c) ..........................................................................................32

Minn. Stat. Ann. §15C.01, Subdivision 4 ......................................................................................32

Minn. Stat. Ann. § 15C.05(f) .........................................................................................................32

Mont. Code Ann. § 17-8-403(6) ....................................................................................................32

N.C. Gen. Stat. Ann. § 1-611(d) ....................................................................................................32

N.H. Rev. Stat. Ann. § 167:61-e(III) .............................................................................................32

N.J. Stat. Ann. § 2A:32C-9(c)........................................................................................................32

N.M. Stat. Ann. § 27-14-10.C ........................................................................................................32

N.Y. State Fin. Law § 188(7) .........................................................................................................33

N.Y. State Fin. Law § 190(9) .........................................................................................................34

Nev. Rev. Stat. Ann. § 357.100 .....................................................................................................32

NYC Admin. Code § 7-804(d).......................................................................................................32

Pub. L. No. 111-148, 124 Stat. 901 (Mar. 23, 2010) .....................................................................18

R.I. Gen. Laws Ann. § 9-1.1-4(e)(4)(A) ........................................................................................32

Va. Code Ann. § 8.01-216.8 ..........................................................................................................32

Rules

Fed. R. Civ. P. 9(b) ..........................................................................................................................5

Fed. R. Civ. P. 12(b)(1)....................................................................................................................1

-v-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 7 of 46

TABLE OF AUTHORITIES (continued)

Page(s)
Fed. R. Civ. P. 12(b)(6)..............................................................................................................5, 31

Other Authorities

In re Amendments to the Fla. Rules of Civ. Procedure,

Fla. Admin. Order No. SC09-1460 ............................................................................................9

In re Task Force on Residential Mortg. Foreclosure Cases,

Fla. Admin Order No. AOSC09-8 .............................................................................................8

-vi-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 8 of 46

Defendants1 respectfully submit this memorandum of law in support of their motion to

dismiss the Second Amended Complaint (the “Complaint” or “SAC”) for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

PRELIMINARY STATEMENT

Relator Lynn Szymoniak filed this qui tam action under the federal False Claims Act

(“FCA”) on June 4, 2010. She subsequently amended her Complaint on March 9 and May 13,

2011, to add claims under certain state and local false claims statutes. Although her theories of

liability are muddled at best, Szymoniak appears to claim that federal, state and local

governments were misled into investing in mortgage-backed securities (“MBS”) because they

did not know, when making their investments, that certain mortgage assignments were not

delivered to the securitization trusts “at the inception of the trust[s],” thereby allegedly impairing

the value of the MBS. SAC ¶¶ 6, 216. Szymoniak claims that in order “to conceal [from the

government] the true, impaired value of the assets of each of the trusts,” Defendants “devised

and operated a scheme to replace the missing assignments with fraudulent, fabricated

assignments.” SAC ¶ 6. Szymoniak also appears to claim, without an iota of factual detail, that

the federal government was separately harmed in its capacity as an insurer of mortgage loans

“[e]ach time a Defendant lacking valid notes and mortgage assignments submitted a claim for

payment on such guarantee.” SAC ¶ 227.

1
The Defendants joining this memorandum are: Bank of America Corp., The Bank of New
York Mellon Corporation, CitiMortgage, Inc., Citibank, N.A., Deutsche Bank National Trust
Company, Deutsche Bank Trust Company Americas, Homeward Residential, Inc. f/k/a
American Home Mortgage Servicing, Inc., HSBC Bank USA, N.A., JPMorgan Chase Bank,
N.A., Saxon Mortgage Servicing, Inc., U.S. Bank, N.A., Wells Fargo Bank, N.A., and Wells
Fargo Home Mortgage, d/b/a America’s Servicing Company (incorrectly named as a separate
entity from Wells Fargo Bank, N.A.) (collectively, “Defendants”).

-1-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 9 of 46

To pursue these claims, Szymoniak must first overcome the FCA’s jurisdiction-removing

public disclosure bar. The bar divests courts of subject matter jurisdiction over claims made by

persons who cannot prove that their allegations are not based on public disclosures or,

alternatively, that they are an “original source” of the allegations because they have direct and

independent knowledge of the underlying facts. 31 U.S.C. § 3730(e)(4) (2009); see also U.S. ex

rel. Black v. Health & Hosp. Corp. of Marion Cnty., 494 F. App’x 285, 291 (4th Cir. 2012). The

purpose of the bar is to discourage opportunistic lawsuits by individuals seeking a financial

windfall based on allegations that are already in the public domain. Id.

Szymoniak is not an “insider.” She has never worked for any Defendant on which she

claims to “blow the whistle,” and she has never participated in a government purchase of MBS

or been involved in a government payment of a mortgage insurance claim. She similarly has no

direct experience in the securitization process, no personal knowledge of what documents are (or

have been) delivered to any securitization trusts, and no personal knowledge of the

circumstances surrounding the preparation of mortgage assignments. Indeed, her effort to

overcome the public disclosure bar rests exclusively on her assertion that she “conducted her

own investigations in furtherance of a False Claims Act qui tam action and found that the

Defendants pursued and continue to pursue foreclosure actions using false and fabricated

documents, particularly mortgage assignments.” SAC ¶ 6. As alleged by Szymoniak, the

findings of her investigation provide the sole factual basis for the essential allegations in the

Complaint. Id. ¶ 55. Szymoniak also asserts, despite her lack of involvement in any aspect of

the scheme alleged, that she has “direct and personal knowledge of the fraudulent scheme

described.” Id. ¶ 13.

-2-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 10 of 46

Szymoniak’s assertions fail to meet her burden of establishing the Court’s jurisdiction.

Allegations concerning the preparation and use of purportedly false or fraudulent mortgage

assignments were in the public domain well before December 2009, when Szymoniak alleges she

commenced her investigation. Indeed, Szymoniak commenced her investigation precisely

because she was aware of judicial opinions and news reports describing the same documentation

issues she now claims to have discovered on her own. It is Szymoniak’s burden to prove that the

allegations in her Complaint are not “based upon” these prior public disclosures. She cannot do

so. Not only are Szymoniak’s allegations substantially similar to allegations contained in prior

public disclosures, but Szymoniak herself cited to numerous public disclosures when reporting

her “findings” to the government in January 2010, many of which pre-date the alleged

commencement of Szymoniak’s investigation.

Szymoniak is similarly unable to carry her burden of proving her “direct and independent

knowledge” of Defendants’ so-called scheme to use allegedly fabricated mortgage documents to

conceal from the government the allegedly impaired value of MBS. For example, the instances

of foreclosure fraud she claims to have identified—including alleged instances of forged

signatures, the use of improper or unauthorized corporate titles, the backdating of effective dates

on mortgage assignments, and unlawful notarizations (see SAC ¶ 7)—all depend on her review

of publicly available documents, including the very mortgage assignments at issue. And

Szymoniak has acknowledged in deposition testimony that her method of identifying allegedly

fraudulent mortgage assignments depends on speculation and inference rather than first-hand

knowledge. Similarly, Szymoniak’s only information about the government’s purchases of

MBS, and of the statements made in the offering documents for those MBS, comes directly from

-3-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 11 of 46

prospectuses and other documents filed with the Securities and Exchange Commission (“SEC”),

media reports, and the government’s own press releases and reports.

This is precisely the type of qui tam action that the public disclosure bar was meant to

address. As Szymoniak’s own emails to another borrower (and client) reflect, her objective in

filing this lawsuit was to cash in on allegations already in the public domain—not to blow the

whistle on a government harm that she sought to redress. Indeed, it required both imagination

and open cynicism for Szymoniak to conjure a government harm that she could allege. Even

then, Szymoniak knew that her claims were “a real long-shot,” and she described them as such:

Here is the problem with the qui tam: the VICTIM must be the
government - as a plaintiff, you stand in the shoes of the
government that has been defrauded.

The government is a victim as it is frantically investing in these

over-valued securities - but we both know that the homeowners
are the real victims.

* * *

[I]f you want to try this too, let me know and we will file together
both knowing that this is a real long-shot. . . .

See Exhibit 1 (Szymoniak email to Figueroa, Feb. 17, 2010, available on Pacer) (emphasis

added). Szymoniak revisited this issue the following day, tasking her client with investigating on

her behalf:

For the possible qui tam, we need to show harm TO THE

GOVERNMENT (irony here is extreme of course).

I have many articles (from Bloomberg, etc.) that say the

government is busy buying $1.2 trillion in mortgage-backed
securities - but I need more specificity.

Would you see if you can find which securities—what Funds—the

government is buying?

Exhibit 2 (Szymoniak email to Figueroa, Feb. 18, 2010, available on Pacer) (emphasis added).

-4-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 12 of 46

For these reasons, discussed in greater detail below, the Court does not have subject

matter jurisdiction over this action, and the action should be dismissed with prejudice.

STATEMENT OF FACTS

The following summary of relevant facts is limited to the allegations and public

disclosures germane to the Court’s consideration of its subject matter jurisdiction over the

action.2 Because the Court may consider extrinsic evidence to determine its jurisdiction, this

factual summary includes publicly available evidence beyond the four corners of the Complaint.

See, e.g., U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009) (on a motion to

dismiss under the public disclosure bar, the court may consider materials outside the pleadings

that are publicly available and capable of accurate and ready determination).

A. Szymoniak’s Motion To Dismiss Her Foreclosure Action

Szymoniak is an attorney and resident of Palm Beach Gardens, Florida. SAC ¶ 13. She

was admitted to the Florida bar in 1980 and has practiced law in Palm Beach County for at least

31 years. Exhibit 3 (Szymoniak Aff., BAC Home Loans Servicing, L.P. v. Davis, Mar. 8, 2011)

at ¶ 2. She does not allege that she has worked for any Defendant and, thus, does not allege that

she observed any purported fraud first-hand in the course of her employment with any

Defendant.

As alleged in the Complaint, Szymoniak purchased a home in 1998 for $392,800, which

she financed with a mortgage loan in the amount of $314,200. SAC ¶ 35. When Szymoniak

refinanced the loan in 2006, she borrowed an additional approximately $465,000, resulting in a

mortgage loan with an outstanding principal balance at the time of $780,000. Id. ¶ 36. Two

2
Defendants respectfully refer the Court to their separately-filed motions to dismiss pursuant to
Rules 12(b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure for a more detailed and
complete description of the allegations in the Complaint.

-5-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 13 of 46

years later, Szymoniak defaulted on her loan, leading to the commencement of a foreclosure

action against her in July 2008 in the name of DBNTC, in its capacity as trustee for the

securitization trust that held her loan (the “Foreclosure Action”). Id. ¶ 42; see also Deutsche

Bank Nat’l Trust Co. v. Szymoniak, No. 50 2008 CA 022258 XXXMB (Fla. Cir. Ct. Palm Beach

County) (“Szymoniak I”).3

On September 12, 2008, Szymoniak filed a motion to dismiss the Foreclosure Action. In

support of her motion, she cited several judicial decisions dismissing foreclosure actions because

of missing documentation. Exhibit 4 (Motion to Dismiss, Szymoniak I, Sept. 12, 2008) at ¶¶ 12-

13 (citing cases). With respect to DBNTC in particular, Szymoniak asserted that the bank “has

repeatedly been identified as a bank that is attempting to take shortcuts in the foreclosure

process.” Id. As her basis for this assertion, Szymoniak cited a decision by New York State

Supreme Court Justice Arthur M. Schack, in Deutsche Bank National Trust Company v.

Castellanos, in which Judge Schack raised concerns about “fraud . . . or at least malfeasance”

because of the multiple titles used by the signatory of the mortgage assignment, as both assignor

and assignee, as well as anomalies with the notarization. Id.; see also Castellanos, No. 07-277,

2008 WL 123798, at *2 (N.Y. Sup. Ct. Jan. 14, 2008).

Szymoniak’s reliance on Judge Schack’s 2008 opinion (and the other decisions cited in

her motion to dismiss) reveals her—and, more importantly for this motion, public—awareness of

the documentation issues described in the Complaint more than a year before she undertook her

alleged investigation of the subject in December 2009.

3
In March 2010, Szymoniak was sued in a second foreclosure action after she defaulted on her
mortgage loan for another property of hers. U.S. Bank v. Szymoniak, No. 50 2010 CA 009104
XXXXMB (Fla. Cir. Ct. Palm Beach Co.) (“Szymoniak II”).

-6-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 14 of 46

B. Other Public Disclosures of Foreclosure Documentation Issues Before

Szymoniak’s Investigation

Courts continued to focus on foreclosure documentation issues in the context of MBS

throughout 2008 and 2009, periodically rejecting foreclosure actions on the basis of alleged

documentation defects similar to those asserted in the Complaint. See, e.g., Indymac Bank, FSB

v. Bethley, No. 08-9615, 2009 WL 279304 (N.Y. Sup. Ct. Feb. 6, 2009); HSBC Bank USA, Nat’l

Ass’n v. Antrobus, No. 07-43299, 2008 WL 2928553 (N.Y. Sup. Ct. July 31, 2008); Wells Fargo

Bank, N.A. v. Farmer, No. 07-27296, 2008 WL 2309006 (N.Y. Sup. Ct. June 2008); Bank of N.Y.

v. Mulligan, No. 07-29399, 2008 WL 2336993 (N.Y. Sup. Ct. June 3, 2008). These decisions,

and the documentation issues they describe, attracted significant media attention at both the

national and local level. For example:

x On July 26, 2008, The Wall Street Journal published an article describing
increased judicial scrutiny of mortgage assignments and judges’ discovery of
“flaws in documents that borrowers may be able to use to keep their homes.”
Exhibit 5 (Amir Efrati, Some Judges Stiffen Foreclosure Standards, Wall St. J.,
Jul. 26, 2008, at A3).

x On April 24, 2009, The New York Times published an article discussing, among
other things, the “recreation” of documents used in foreclosure actions and the
multiple job titles used by individuals signing those documents. The article
quotes another decision by Judge Schack, from February 2009, dismissing a
foreclosure action based on a mortgage assignment in which an employee of the
foreclosing bank had identified herself as a vice president of MERS. As reported
in the article, Judge Schack referred to the employee as “‘a milliner’s delight by
virtue of the number of hats she wears,’” and he questioned whether she was
“‘engaged in a subterfuge.’” Exhibit 6 (Mike McIntire, Murky Middleman, N.Y.
Times, Apr. 24, 2009, at B1).

x On May 3, 2009, the St. Petersburg Times published an article discussing, among
other things, the preparation of documentation that has appeared in foreclosure
cases. According to this article, employees at one services provider signed
documents as officers of multiple banks as part of what critics were describing as
“an assembly-line process designed to resolve a big problem: In the rush to ‘flip’
loans as fast as possible in order to make more money, the new loan holders often
failed to get the proper paperwork showing they owned the loan and had the right
to foreclose.” Exhibit 7 (Susan Taylor Martin, So, Who Owns Your Home Loan?,
St. Petersburg Times, May 3, 2009, at 1D).

-7-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 15 of 46

x On August 31, 2009, The New York Times published an article about Judge
Schack in which the Times noted the large number of foreclosure actions
dismissed by him because of documentation issues similar to those alleged in the
Complaint. The article describes how one bank representative signed an affidavit
as the vice president of two different banks and had his signature notarized in
Texas despite the fact that his office was located in Kansas City, Missouri.
According to the article, Judge Schack’s “often scathing decisions” had attracted
“the attention of judges and lawyers from Florida to Ohio to California,”
including at judicial conferences in Chicago and Arizona. Exhibit 8 (Michael
Powell, A ‘Little Judge’ Who Rejects Foreclosures, Brooklyn Style, N.Y. Times,
Aug. 31, 2009, at A1).

x On December 24, 2009, The Wall Street Journal published an article discussing
recent judicial opinions in Massachusetts, New York and Texas that “mark a new
phase in the judiciary’s battle to stem the rising tide of foreclosures by punishing
mortgage companies for paperwork mistakes and alleged mistreatment of
borrowers.” Exhibit 9 (Amir Efrati, Foreclosure Challenges Raise Questions
About Judicial Role, Wall St. J., Dec. 24, 2009, at A15).

Public interest ran so high that Judge Schack himself became the focus of media

attention, and he was interviewed on national television by CBS News. The interview, which

aired on September 12, 2009, was also posted on YouTube and included a discussion of the types

of documentation issues being encountered in foreclosure proceedings. N.Y. Judge Takes on

Foreclosures (CBS News television broadcast Sept. 12, 2009).4

Courts were prompted to issue new rules to address the foreclosure documentation issues

being identified by judges. For example, in March 2009, the Florida Supreme Court established

a Task Force on Residential Mortgage Foreclosure Cases “to recommend to the Supreme Court

policies, procedures, strategies, and methods for easing the backlog of pending residential

mortgage foreclosure cases while protecting the rights of parties.” In re Task Force on

Residential Mortg. Foreclosure Cases, Fla. Admin Order No. AOSC09-8, at 2 (Mar. 27, 2009).

After an expedited proposal and comment period, the Florida Supreme Court adopted new rules

4
The broadcast can be viewed at http://www.cbsnews.com/news/ny-judge-takes-on-
foreclosures.
-8-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 16 of 46

requiring the verification of foreclosure complaints to conserve judicial resources wasted on

allegedly “inappropriately pleaded ‘lost note’ counts and inconsistent allegations . . . and

[potential] harm to defendants resulting from suits brought by plaintiffs not entitled to enforce

the note.” In re Amendments to the Fla. Rules of Civ. Procedure, Fla. Admin. Order No. SC09-

1460, at 4 (Feb. 11, 2010). Szymoniak clearly knew about the Florida rule amendments when

she filed her Complaint in June 2010, because she highlighted the purpose for which they were

implemented in a motion to dismiss her second foreclosure proceeding on May 14, 2010. See

Exhibit 10 (Motion to Dismiss, Szymoniak II, May 14, 2010) at 3.

Others began to catalogue foreclosure documentation issues as well, including in

publicly-disclosed documents. In October 2009, for example, Marie McDonnell, a self-

described mortgage fraud and forensic analyst, submitted an affidavit in a bankruptcy action in

which she described “bogus” assignments executed by DocX employee Linda Green. The

affidavit described McDonnell’s review of public records to find examples of purportedly

fraudulent assignments and notarizations, and it identified examples substantially similar to the

ones alleged by Szymoniak in the Complaint. See Exhibit 11 (McDonnell Aff., Vo v. Twin-Vest,

LLC, Oct. 20, 2009) at 4.5

5
Also in October 2009, David Breidenbach, the individual credited with blowing the whistle on
improper document execution practices at Lender Processing Services (“LPS”) and DocX (see
infra at 13) posted an online message encouraging borrowers to question the authenticity of
signatures on the mortgage assignments used in their foreclosures:
look at your assignments of mortgage—who signed them?—look
at releases for signatures—the titles may be defended by showing
the docs werent [sic] signed following requirements—tell your
lawyers to look at the kansas supreme court and massachussets
[sic] cases . . .—look for proof of bad signatures . . . .
Exhibit 12 (Breidenbach blog post, Oct. 26, 2009) (emphasis added).

-9-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 17 of 46

C. Szymoniak’s Alleged Investigation and Findings of Foreclosure Fraud

Szymoniak alleges that she began her investigation into potential foreclosure fraud in

December 2009, after the previously missing note and mortgage assignment were filed in her

Foreclosure Action. SAC ¶ 48. Although the docket sheet in the Foreclosure Action indicates

that the documents were filed on December 28, 2009, Szymoniak has claimed in another

proceeding that the documents were filed on December 23. Compare Docket Entry No. 10 with

Motion for Sanctions, Szymoniak I, at ¶ 10. Regardless of which date is correct, Szymoniak

could not have begun her investigation until December 23 at the earliest, with just five business

days left in the year, including both Christmas Eve and New Year’s Eve.

The Complaint alleges that “[a]fter discovering the forged mortgage assignment in

Relator’s Foreclosure, Relator investigated approximately more than one thousand mortgage

assignments prepared by defendant DocX and found the same forged assignments in all of these

cases.” SAC ¶ 93. Then, also in the month of December, Szymoniak claims she “began

reporting her findings of widespread fabricated mortgage assignments used by mortgage-backed

securities trusts” to various government offices. SAC ¶ 58.

At the same time, Szymoniak indisputably continued to follow foreclosure-related

decisions by Judge Schack. On January 14, 2010, she published an article summarizing six of

Judge Schack’s decisions, each of which dismissed a foreclosure action on grounds that the

mortgage assignment bore what Judge Schack considered to be indicia of fraud. See Exhibit 13

(Lynn Szymoniak, An Officer of Too Many Banks, Fraud Digest, Jan. 14, 2010).

A few days later, Szymoniak submitted a letter to the Financial Crisis Inquiry

Commission (“FCIC”) expressing concern about “fabricated and forged mortgage-related

documents” prepared by DocX. See Exhibit 14 (Szymoniak letter to FCIC, Jan. 19, 2010).

-10-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 18 of 46

Although Szymoniak claims in the letter to have conducted her own investigation into the issue,

she directed the Commission to judicial decisions describing “questionable Assignments from

document mills,” and “especially” to the decisions of Judge Schack. She also tellingly supported

her letter by enclosing her January 14 article cataloguing numerous judicial decisions dismissing

foreclosure actions on the basis of documentation issues substantially similar to those alleged in

the Complaint. Id. Conspicuously absent from her letter is a single reference to a securitization

transaction, let alone any federal or state government investment or harm.

D. Szymoniak’s Effort to Bootstrap a Qui Tam Action onto Foreclosure

Documentation Issues

Although an essential element of a qui tam action is a fraud on the government,

Szymoniak had no direct or independent knowledge of any false claim or other harm to the

government when she allegedly began reporting her findings to the government in December

2009. Indeed, to this day, it appears that the only basis for her allegations of a false claim or

other harm to the government is information she obtained either in the course of her own

foreclosure proceeding or second- and third-hand from news reports and government press

releases and reports, many of which she cites in the Complaint. See SAC ¶¶ 203, 204, 206, 207,

209, 210, 215, 231-34.

Szymoniak has even been sued by her former client, Ignacio Figueroa, who claims that

he, not she, had the idea of filing a qui tam action based on alleged government harm. See

Exhibit 15 (Complaint, Figueroa v. Szymoniak). In support of his allegations, Figueroa attached

certain of his emails with Szymoniak to his complaint, including an email, dated February 17,

2010, in which Szymoniak advised Figueroa:

Here is the problem with the qui tam: the VICTIM must be the
government - as a plaintiff, you stand in the shoes of the
government that has been defrauded.

-11-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 19 of 46

The government is a victim as it is frantically investing in these

over-valued securities - but we both know that the homeowners
are the real victims.

Also, you must have information unknown to the general public to

be the ‘Relator.’

Qui Tams are filed under seal for the first 90 days.

I have one in the works - with ME as Relator - but I do not

expect much from it as everything I know is already in the public
domain as I have shared it with anyone who will listen.

But if you want to try this too, let me know and we will file
together both knowing that this is a real long-shot. . . .”

Exhibit 1 (Szymoniak email to Figueroa, Feb. 17, 2010, available on Pacer) (emphasis added).

Szymoniak sent an email the next day asking Figueroa to research any investments by the

government in RMBS:

For the possible qui tam, we need to show harm TO THE

GOVERNMENT (irony here is extreme of course).

I have many articles (from Bloomberg, etc.) that say the

government is busy buying $1.2 trillion in mortgage-backed
securities - but I need more specificity.

Would you see if you can find which securities—what Funds—the

government is buying?

Exhibit 2 (Szymoniak email to Figueroa, Feb. 18, 2010, available on Pacer) (emphasis added).

That same day, Figueroa began sending Szymoniak links to various federal government

websites, which he described as containing information regarding government investment in

RMBS. Exhibit 16 (Figueroa email to Szymoniak, Feb. 18, 2010, available on Pacer).

E. The Government’s Investigation of DocX Was Triggered by Someone Else

Although Szymoniak holds herself out as the person responsible for triggering the

government’s investigation of DocX, the publicly-available Non-Prosecution Agreement entered

into between the government (the putative plaintiff in this action) and LPS confirms that she was
-12-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 20 of 46

not. As stated therein, a man sent a letter to LPS’s external auditors in October 2009 (two

months before Szymoniak saw the mortgage assignment filed in her foreclosure action) “alleging

fraud and forgery in the execution of documents related to his mortgage by DocX.” See Exhibit

17 (LPS Non-Prosecution Agreement, Feb. 14, 2013) at Appendix A, ¶ 16. The auditors

forwarded the letter to LPS’s corporate headquarters, and corporate representatives confronted

Lorraine Brown, the then-President and founder of DocX, whose employment with DocX was

terminated shortly thereafter. Id. On February 9, 2010, Brown was interviewed by an agent with

the Federal Bureau of Investigation. Id. ¶ 17.

The man who blew the whistle on DocX is David Breidenbach. By letter dated October

27, 2009, Breidenbach notified LPS’s outside auditors of the creation of allegedly “faulty

[foreclosure] documentation” by employees at LPS and DocX. See Exhibit 18 (Breidenbach

letter to KPMG, Oct. 27, 2009). A few weeks later, in November 2009, Breidenbach delivered a

more expansive letter to the SEC, which he copied to U.S. Senator Sherrod Brown, in which he

described “potential forgers/forgeries en masse” at DocX. See Exhibit 19 (Breidenbach letter to

SEC, Nov. 23, 2009). Breidenbach’s SEC letter includes the kind of detail that is conspicuously

missing from Szymoniak’s letter to the FCIC, sent three months later. Id. It also voices concern

about a potential fraud on the government as a result of its purchases of MBS and possible

payment of mortgage insurance claims—the same concerns that Szymoniak failed to raise in her

letter to the FCIC. Id. But even Breidenbach admitted that his investigation had been triggered

by the publicly available decisions of Judge Schack, and he candidly conceded that his concerns

about potential fraud were based upon “speculation” rather than first-hand knowledge. Id.

(“Simply speculating, . . . . [t]his could be a fraud on securities investors . . . .”).

-13-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 21 of 46

LPS stopped executing foreclosure-related documents as of December 31, 2009. See

Exhibit 20. In its Form 10-K for the period ended December 31, 2009, filed with the SEC in

February 2010, LPS disclosed that it had conducted an internal review of its “document

solutions” subsidiary, DocX, which had uncovered a process that had resulted in erroneous

notarizations of foreclosure documents. See Exhibit 21 (Excerpt from LPS Annual Report (Form

10-K), Feb. 23, 2010) at 17. The 10-K also revealed an inquiry by a Georgia regulator and an

investigation by the U.S. Attorney’s Office for the Middle District of Florida into the DocX

fraud. Id.

On December 31, 2009, Breidenbach filed an amended answer and “counter-complaint”

in his own foreclosure action containing more than 200 pages of detailed allegations concerning

potential mortgage and foreclosure fraud. See Exhibit 22 (Excerpts from Second Amended

Answer and Third Amended Counter-Complaint, Bank of N.Y. v. Breidenbach). Included among

those allegations were specific examples of allegedly false or fraudulent mortgage assignments

executed by employees of LPS or DocX. Id. As alleged by Breidenbach, employees of LPS and

DocX routinely “created” mortgage assignments and other foreclosure-related documentation

using “unauthorized” or potentially forged signatures and “false notary attestations.” Id.

F. Further Media Coverage of Allegedly Fraudulent Assignments and

Foreclosure Mills

News media coverage of foreclosure documentation issues, including the fraudulent

document execution practices at DocX, continued after January 2010, when Szymoniak

submitted her letter to the FCIC. In April 2010, for example, The Wall Street Journal published

the following articles:

x On April 3, 2010: an article describing a criminal investigation into DocX, which

follows on the dismissal of numerous foreclosure cases in which judges across the
U.S. have found “that the materials banks had submitted [] to support their claims
were wrong.” The article notes that “[f]aulty bank paperwork has been an issue in
-14-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 22 of 46

foreclosure proceedings since the housing crisis took hold a few years ago.”
Exhibit 23 (Amir Efrati & Carrick Mollenkamp, U.S. Probes Foreclosure-Data
Provider, Wall St. J., Apr. 3, 2010, at B1).

x On April 17, 2010: an article describing questionable paperwork in foreclosure

actions. The article highlights the dismissal of a Florida foreclosure case due to
the faulty “assignment of mortgage” prepared by one of several “foreclosure
mills.” Exhibit 24 (Amir Efrati, Judge Bashes Bank in Foreclosure Case, Wall
St. J., Apr. 17, 2010, § Law).

These public disclosures, among others, were readily available to Szymoniak when she

was preparing her Complaint.

G. Szymoniak’s Testimony Admitting That Her “Findings” Are Based on

Assumptions and Not First-Hand Knowledge of Fraud

From at least the time of her first Foreclosure Action, Szymoniak has been an active

participant in a network of individuals who share information about alleged “foreclosure fraud.”

Thus, for example: Szymoniak launched a website with the domain name “Fraud Digest,” that

attracted many bloggers, and she kept abreast of what others were posting on similar blogs, such

as “4closurefraud.org.” See Exhibit 25 (Szymoniak Transcript Excerpts, Stepankovsky, May 24,

2011) at 65-66. Eventually, she solicited engagements as a self-styled expert witness on the

subject of “foreclosure fraud” and, as a result, has provided deposition testimony in other

proceedings. See, e.g., id.

Although Defendants do not have access to all of Szymoniak’s testimony on the subject,

it is clear from her deposition testimony in the Stepankovsky case that her “findings” from her

alleged investigation were based on surmise and conjecture derived from public information, not

eyewitness (or other first-hand) knowledge of fraud. This is clear because, more than a year after

completing her investigation, Szymoniak’s information about so-called foreclosure fraud was

limited to guesswork that anyone could have made:

Q: It’s really just your eyes, you’re able to see these

variances, correct?

-15-
0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 23 of 46

A: Not just my eyes. Other people are able to see significant

variations in the signatures of these individuals.

Q: But you’re testifying based on your own eyes, correct?

A: Yes.

Q: In this particular case, Stepankovsky, you have no idea

whether Linda Green or Tywanna Thomas actually
signed those assignments on exactly the day the mortgage
assignments say they were signed, right?

A: On those particular assignments, no, I don’t. Because

until I see an actual copy of the real Linda Green’s
signature and the real Tywanna Thomas’ signature,
which I have not seen, I would not be able to say that
these signatures are forgeries.

But I am familiar with the practice called surrogate signing.

That’s the name given to many different people signing the
same name in the Alpharetta office [of DocX] and that
there was [a government] investigation of surrogate
signing.

There was a disclosure by LPS to its clients that this went

on . . ..

Q: But you have no basis to tell the court that surrogate

signing is used, as you have described it, happened on the
assignments in this case, or that you’ve testified about for
this case?

* * *

A: I do not know that the actual—you’re right. I don’t know

that Linda Green and Tywanna Thomas didn’t actually
sign this document in front of these witnesses on that
particular day.

* * *

Q: And as you sit here today, you cannot testify that on or

about that date [when the securitization transaction
closed], the note and the mortgage for the Stepankovsky
loan were delivered to the trust?

A: That’s correct.

-16-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 24 of 46

* * *

Q: You can’t testify that neither Linda Green or Tywanna

Thomas have never been authorized as signing officer for
MERS, right?

A: That’s correct.

Exhibit 25 (Szymoniak Transcript Excerpts, Stepankovsky, May 24, 2011) at 54-56, 58-59

(emphasis added).

ARGUMENT

I. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER

SZYMONIAK’S FCA CLAIMS

The qui tam provisions of the FCA are designed to enlist the help of private citizens in

uncovering and combating fraud against the government, while simultaneously preventing

parasitic lawsuits based upon publicly disclosed allegations. Harrison v. Westinghouse

Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). To strike this balance, the FCA includes

a “public disclosure bar” that “deprives courts of jurisdiction over qui tam suits when the

relevant information has already entered the public domain through certain channels.” Graham

Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson (“Graham County”), 130 S. Ct.

1396, 1401 (2010).6

As applicable to this case, the public disclosure bar provides:

6
As further explained by the Fourth Circuit, the public disclosure bar furthers the “twin goals of
rejecting suits which the government is capable of pursuing itself, while promoting those which
the government is not equipped to bring on its own.” U.S. ex rel. Wilson v. Graham Cnty. Soil &
Water Conservation Dist., 528 F.3d 292, 306 (4th Cir. 2008), rev’d on other grounds, 130 S. Ct.
1396 (2010); see also U.S. ex rel. Black v. Health & Hosp. Corp. of Marion Cnty., 494 F. App’x
285, 291 (4th Cir. 2012) (where “the critical elements exposing the alleged fraud are already
placed in the public domain,” then the government “is already in a position to vindicate society’s
interests, and a qui tam action would serve no purpose”) (internal quotation marks and citations
omitted) (alteration in original).

-17-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 25 of 46

No court shall have jurisdiction over an action under this section

based upon the public disclosure of allegations or transactions in a
criminal, civil, or administrative hearing, in a congressional,
administrative, or Government Accounting Office report, hearing,
audit, or investigation, or from the news media, unless the action is
brought by the Attorney General or the person bringing the action
is an original source of the information.

31 U.S.C. § 3730(e)(4) (2009).7 Because the bar is jurisdictional, it is a relator’s burden to prove

that the bar does not deprive the court of jurisdiction. See Black, 494 F. App’x at 293; Vuyyuru,

555 F.3d at 347.

“In an FCA action, when subject matter jurisdiction is challenged under the public

disclosure bar, a court must engage in a three-pronged analysis to determine (1) if there was a

public disclosure, (2) if the relator’s allegations were ‘based upon’ the public disclosure, and, if

so, (3) whether the relator is nonetheless entitled to original source status as an individual who

has direct and independent knowledge of the information on which the allegations are based.”

Black, 494 F. App’x at 293 (citations and quotations omitted). Because Szymoniak cannot

satisfy her burden of proving that the bar does not apply, the court lacks subject matter

jurisdiction and the Complaint should be dismissed.

A. Szymoniak’s Allegations Were Publicly Disclosed in Qualifying Sources

This qui tam action is based upon Szymoniak’s allegations that:

x In numerous (unspecified) instances, mortgage assignments required to be

delivered to securitization trusts at the time of securitization were never delivered,
thereby impairing the value of the securities (see, e.g., SAC ¶¶ 6, 65);

7
The public disclosure bar was amended in March 2010 by the Patient Protection and
Affordable Care Act. See Pub. L. No. 111-148, 124 Stat. 901 (Mar. 23, 2010). This case must
be decided under the previous version of the bar, however, because the factual allegations
underlying each of Szymoniak’s claims concern alleged conduct that pre-dates the March 2010
amendments, and the amendments are not retroactive. See U.S. ex rel. May v. Purdue Pharma
L.P., 737 F.3d 908, 914-18 (4th Cir. 2013). All references and citations to § 3730(e)(4) are to
the statutory text as it existed prior to March 23, 2010.

-18-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 26 of 46

x To conceal the missing assignments and impaired value of the securities, and “to
meet the evidentiary requirements imposed by courts in foreclosure cases,”
Defendants conspired to make “widespread [use of] fabricated mortgage
assignments” (SAC ¶¶ 6, 58);

x Unaware that the securities were impaired because of missing mortgage

assignments, the U.S. government purchased (or financed the purchase of) RMBS
through the Maiden Lane vehicle, Public-Private Investment Partnership (“PPIP”)
financing, and direct purchases of securities issued by Fannie Mae, Freddie Mac,
and Ginnie Mae (see, e.g., SAC at ¶¶ 198, 201-15); and

x In reliance on allegedly fabricated assignments, the government also overpaid for

services and/or paid claims on loans whose payments were guaranteed by federal
government agencies (see, e.g., SAC at ¶¶ 218-20, 227).

These allegations were in the public domain well before Szymoniak filed her original

Complaint on June 4, 2010. See supra at 5-15. From at least 2007 through June 2010, federal

and state court judges across the country had issued numerous foreclosure decisions highlighting

documentation issues substantially similar to those described in the Complaint (see supra at 6-7).

Indeed, the “often scathing” decisions issued by Judge Arthur Schack of New York became so

well-known that they attracted national and local media attention and led ultimately to a

nationally televised interview of the judge on CBS News (also posted on YouTube) (see supra at

8).8 Szymoniak’s own Motion to Dismiss her Foreclosure Action, filed in September 2008,

highlighted several judicial decisions addressing the subject, as did an article published by her in

January 2010 (see supra at 6, 10). In October 2009, a proposed expert witness submitted an

affidavit in connection with a federal bankruptcy hearing in which the witness catalogued (based

on her own investigation in 2008) what she referred to as “bogus” assignments executed by

DocX employee Linda Green (see supra at 9). The following month, David Breidenbach made

8
Defendants’ reliance on Judge Schack’s opinions as qualifying public disclosures under the
FCA is not intended, and should not be construed, as agreement with the holdings in those cases,
several of which have been reversed on appeal. See, e.g., HSBC Bank USA, N.A. v. Taher, 962
N.Y.S.2d 301 (App. Div. 2013); Wells Fargo Bank, N.A. v. Fisch, 959 N.Y.S.2d 260, 261 (App.
Div. 2013); Aurora Loan Servs., LLC v. Sookoo, 941 N.Y.S.2d 503 (App. Div. 2012).

-19-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 27 of 46

allegations in a letter to the SEC that are identical to the allegations made in the Complaint (see

supra at 13), and on December 31, 2009, Breidenbach filed a pleading in which he made those

same allegations public (see supra at 14). By March 2010, the Florida Supreme Court had

proposed new rules for foreclosure actions to address such issues, which were promptly adopted

(see supra at 8-9).

The news media and government (through, among other things, press releases) also

reported extensively on the government bail-out known as the Troubled Asset Relief Program

(“TARP”) and on the government’s use of the Maiden Lane vehicle, PPIP financing, and direct

purchases to acquire or finance the purchase of troubled assets. Indeed, Szymoniak herself cites

repeatedly to news articles, government press releases, and government websites as the basis for

her allegations in the Complaint concerning the government’s so-called “investments” in

RMBS—allegations that are essential to her futile effort to identify a “false claim” to support a

qui tam action. See, e.g., SAC ¶¶ 203, 204, 206, 207, 209, 210, 215 (citing U.S. Treasury and

Federal Reserve Bank of New York press releases and websites and articles published in The

Wall Street Journal). Szymoniak also readily admits that the mortgage assignments she now

claims were fraudulent were all publicly available in court filings or on various internet

databases and websites. See, e.g., Exhibit 25 (Szymoniak Transcript Excerpts, Stepankovsky,

May 24, 2011) at 23-24, 87.

All of these disclosures fall plainly within the scope of the public disclosure bar.

Allegations contained in news media reports, civil hearings, and administrative reports all fall

within the express language of the statute. 31 U.S.C. § 3730(e)(4)(A). And courts have

consistently held that the term “civil hearings,” as used in the version of the statute applicable

here, encompasses both state and federal actions, including judicial opinions and documents filed

-20-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 28 of 46

with the clerk’s office. See, e.g., May, 737 F.3d at 917 (the term includes “both federal and state

trials and hearings”) (emphasis in original); U.S. ex rel. Siller v. Becton Dickinson & Co., 21

F.3d 1339, 1350 (4th Cir. 1994) (“[A]ny information disclosed through civil litigation and on file

with the clerk’s office should be considered a public disclosure of allegations.”); U.S. ex rel.

Carter v. Halliburton Co., No. 11-602, 2013 WL 5306645, at *8 (E.D. Va. Sept. 19, 2013)

(“Judicial opinions may be considered public disclosures.”). Courts have further held that online

articles and blog posts qualify as “news media” under the FCA. U.S. ex rel. Beauchamp v.

Academic Training Ctr., Inc., 933 F. Supp. 2d 825, 845 n.37 (E.D. Va. 2013) (collecting cases).

Records available on public, searchable databases or websites qualify as news media and

administrative reports. See U.S. ex rel. Oliver v. Philip Morris USA Inc., No. 08-0034, 2013 WL

2637032, at *6-7 (D.D.C. 2013); U.S. ex rel. Doe v. Staples, Inc., 932 F. Supp. 2d 34, 40 (D.D.C.

2013); U.S. ex rel. Rosner v. WB/Stellar IP Owner, L.L.C., 739 F. Supp. 2d 396, 407 (S.D.N.Y.

2010).

Because the public disclosures described in the Statement of Facts, above, revealed the

core allegations in the Complaint, they triggered the public disclosure bar. See Graham County,

130 S. Ct. at 1404 (the public disclosure bar is satisfied by disclosures that “put the Federal

Government on notice of a potential fraud”) (collecting cases); U.S. ex rel. Gilligan v.

Medtronic, Inc., 403 F.3d 386, 390 (6th Cir. 2005) (“[P]ublic disclosures contained in different

sources, which together provide information that leads to a conclusion of fraud, trigger the public

disclosure bar.”); U.S. ex rel. Jones v. Collegiate Funding Servs., No. 07-290, 2011 WL 129842,

at *8 (E.D. Va. Jan. 12, 2011), aff’d, 469 F. App’x 244 (4th Cir. 2012) (the public disclosure bar

is not “limited in application to a single comprehensive public disclosure which embraces each

and every element of the alleged fraud”); U.S. ex rel. Lopez v. Strayer Educ., Inc., 698 F. Supp.

-21-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 29 of 46

2d 633, 644 (E.D. Va. 2010) (the “disclosures in their totality . . . are sufficient to put the

government on notice of the likelihood of related fraudulent activity”) (internal quotation marks

and citation omitted).9

B. Szymoniak’s Claims Are “Based Upon” Qualifying Public Disclosures

The Fourth Circuit has held that a relator’s action is “based upon” a public disclosure

“where the relator has actually derived from that disclosure the allegations upon which his qui

tam action is based.” Siller, 21 F.3d at 1348. The Court has since clarified that an action need

not be totally derived from public disclosures for the bar to apply. The bar applies where the

relator’s allegations are “even partly” based upon prior public disclosures. May, 737 F.3d at 919

(emphasis added); see also Vuyyuru, 555 F.3d at 351; Jones, 469 F. App’x at 254.10

If a relator cannot prove that her own experiences provided the facts necessary to plead

all the elements of an FCA claim, the court must conclude that the complaint is partly based

upon public disclosures. See, e.g., Lopez, 698 F. Supp. 2d at 637 (“It is clear that [relator] knows

no facts derived from her own experiences which might serve as a basis for alleging [the

necessary elements of her FCA claims], which, in turn, exposes the true source of the allegations

in her Complaint.”). Substantial similarities between a relator’s allegations and prior public

9
See also Black, 494 F. App’x at 294 (public disclosures are not required to “match[] with
specificity the allegations made by a qui tam relator”) (emphasis in original); Jones, 469 F.
App’x at 257 (holding that SEC filing was a qualifying public disclosure because “[w]hile such a
report does not necessarily alert federal agencies to wrongdoing, it certainly provides easily
accessible notice of the transactions . . . from which an investigation could have begun or
developed.”).
10
The Fourth Circuit is the only circuit to use the “derived from” standard. May, 737 F.3d at
918-19; see also Beauchamp, 933 F. Supp. 2d at 841. All other Circuits have interpreted the
public disclosure bar more broadly, and have held that it bars any suit where the relator’s
allegations are “substantially similar” to public disclosures, “regardless of where the relator
obtained his information.” Lopez, 698 F. Supp. 2d at 637 n.3. This may explain why Szymoniak
filed her action in South Carolina, a jurisdiction with which she has no known (or alleged)
personal connection.

-22-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 30 of 46

disclosures are “significant proof” that the relator derived her allegations from public disclosures.

Vuyyuru, 555 F.3d at 350-51. Such proof is bolstered where, as here, the relator is not an

employee whose job responsibilities would have provided her with access to information

supporting her claims. Id. at 351-52; see also Jones, 2011 WL 129842, at *3 (relators’ limited

role as telemarketers did not give them “access to information regarding claims for government

reimbursement submitted by [defendants]”).

In the Complaint, Szymoniak alleges that her investigation was the source of her

“knowledge” that Defendants schemed to manufacture “false and fabricated . . . mortgage

assignments” to conceal from the government the allegedly missing assignments and impaired

value of MBS. SAC ¶ 6; see also id. ¶ 55. Setting aside, for purposes of this motion, how

improbable Szymoniak’s allegations concerning her investigation are,11 they also fail to satisfy

her burden of proving that her claims are not based, at least in part, upon qualifying public

disclosures.

It is apparent from the Complaint that Szymoniak’s substantive allegations are based on

public disclosures in the news media and other qualifying sources, not on any information she

learned as an “insider” of any Defendant or as a government employee. Indeed, Szymoniak’s

investigation itself was triggered by public disclosures concerning the precise types of

documentation issues she now claims to have discovered on her own. Szymoniak cited public

11
Szymoniak claims that the impetus for her investigation was the filing, in December 2009, of
a previously-missing mortgage assignment in her first foreclosure action. SAC ¶¶ 48-49.
Szymoniak then alleges that she both began and completed her investigation, which included her
review of more than 1,000 mortgage assignments, and started reporting her findings of
widespread fraud to the government by the end of December 2009. SAC ¶ 58. However, the
assignment that allegedly triggered her investigation was not filed until December 23 at the
earliest (see supra at 10). It is very unlikely that Szymoniak could have “investigated” more
than one thousand mortgage assignments (as she claims) and begun reporting her findings of
“widespread fabricated mortgage assignments” to the government all within a one-week period.

-23-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 31 of 46

sources, including the Castellanos decision by Judge Schack, in a motion to dismiss her

foreclosure action on September 2008—fifteen months before receiving the mortgage

assignment that she now credits with triggering her investigation (see supra at 6).

Moreover, Szymoniak continued to keep track of Judge Schack’s foreclosure decisions

and on January 14, 2010, published an article cataloguing several of them. Her article, titled “An

Officer of Too Many Banks,” includes the following lengthy excerpt from Judge Schack’s

decision in Castellanos:

In my recent review of the moving papers in the renewed motion, I

noticed that the July 21, 2006 “affidavit of merit” was executed by
Jeff Rivas, who claims to be Deutsche Bank’s Vice President
Default Timeline Management. On the same day, Mr. Rivas
executed, before the same notary public, M. Reveles, a mortgage
assignment from Argent Mortgage Company, LLC, claiming to be
Argent’s Vice President Default Timeline Management. Did Mr.
Rivas somehow change employers on July 21, 2006 or is he
concurrently a Vice President of both assignor Argent Mortgage
Company, LLC and assignee Deutsche Bank. . . ?

Also, Mr. Rivas claims that Argent Mortgage Company, LLC is

located at 1100 Town and County Road, Suite 200, Orange,
California. Did Mr. Rivas execute the assignment at 100 Town
and County Road, Suite 200, and then travel to One City
Boulevard West, with the same notary public, M. Reveles, in tow?
The court is concerned that there may be fraud . . . or at least
malfeasance. If plaintiff renews its motion for a judgment of
foreclosure and sale, the Court requires a satisfactory explanation
by Mr. Rivas of his recent employment history . . . .

Exhibit 13 (Lynn Szymoniak, An Officer of Too Many Banks, Fraud Digest, Jan. 14, 2010)

(emphasis added). Certainly, this decision alerted Szymoniak—both in January 2010 and when

she first cited it in September 2008—to the same documentation issues she now claims to have

uncovered through her own investigation.

Szymoniak also lacked—and still lacks—personal knowledge of perhaps the most

fundamental element of her FCA claims: the submission of a false claim or use of a false record

-24-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 32 of 46

or statement to get a claim paid or approved by the government, including, without limitation,

any insurance or mortgage guarantee claims submitted by any servicers. This is presumably why

Szymoniak cited to judicial decisions in her letter to the FCIC and referred only to an alleged

fraud on the courts and homeowners:

It appears that Deutsche Bank, and others, are engaged in a wide-

ranging fraud on Courts and homeowners. In most cases,
however, homeowners in foreclosure do not have the resources to
hire attorneys, or the knowledge and resolve to challenge a
financial giant like Deutsche Bank.

Exhibit 14 (Szymoniak letter to FCIC, Jan. 19, 2010) (emphasis added). Szymoniak said nothing

in her letter about potential false claims to the government. Instead, she stated that she “would

appreciate an investigation of this matter by your committee, appropriate action and relief for

homeowners who have been victimized by these practices.” Id. (emphasis added).

The reason Szymoniak was silent about potential false claims to the government is that

she did not know—and still does not have personal knowledge—of any. As reflected in her

contemporaneous email communications with her then-client, Figueroa, Szymoniak believed that

the “real victims” of so-called foreclosure fraud were homeowners, but she wanted to bring a qui

tam action and therefore needed to find an alleged harm to the government. After reading news

reports about government purchases of MBS, she decided to use those as her hook. Lacking any

first-hand information, however, she tapped Figueroa for additional information, asking him to

research publicly available sources and let her know what he found (see supra at 11-12).

And, of course, Szymoniak’s investigation itself was based on her review of mortgage

assignments found in the public domain.

Where, as here, a relator cannot prove that her personal knowledge is sufficient to plead

all the necessary elements of a cause of action under the FCA, the court must conclude that the

complaint is based at least partly on public disclosures. In Vuyyuru, for example, although the
-25-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 33 of 46

relator could prove that he had witnessed unnecessary medical procedures and other misconduct

by the defendant doctor, he could not carry his burden of proving that he had personal

knowledge of the defendant’s alleged use of a false record or statement to get a fraudulent

Medicare claim paid or approved by the government. The Fourth Circuit thus affirmed the

district court’s dismissal of his FCA claims. Id., 555 F.3d at 351 (“[E]ven under the best-case-

scenario for Relator Vuyyuru, which is that some of the allegations in his Third Amended

Complaint pertaining to the FCA claims were not based upon a public disclosure, e.g., Dr.

Jadhav performed colonoscopies in less than five minutes when they normally take fifteen

minutes,” relator cannot demonstrate any personal knowledge of Dr. Jadhav “defrauding the

government by presenting or causing to be presented even a single false or fraudulent claim for

payment to the government, which is the sin qua non [sic] of a § 3729(a)(1) violation.”).

Similarly, in Black, the Fourth Circuit affirmed dismissal of a qui tam complaint because

the relator could not establish his personal knowledge of defendants’ alleged (i) knowing

submission of a false or fraudulent claim for payment or approval to the government; (ii)

knowing creation or use of a false record or statement to get a false or fraudulent claim paid or

approved by the Government; or (iii) conspiracy to defraud the Government by getting a false or

fraudulent claim allowed or paid. U.S. ex rel. Black v. Health & Hosp. Corp. of Marion Cnty.,

No. 08-0390, 2011 WL 1161737, at *7-8 (D. Md. Mar. 28, 2011), aff’d, 494 F. App’x 285 (4th

Cir. 2012). Reviewing the relator’s allegations “through the lens of the proof necessary for

Relator to make his False Claims Act allegations,” the district court in Black concluded, in

language equally applicable here:

With regard to his allegations under Section 3729(a)(1) of the FCA,

Black possesses no facts which would enable him to prove that
[defendant] presented a false claim to the government. Similarly,
under subsection (a)(2), he possesses no facts proving that

-26-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 34 of 46

[defendant] made a false record or statement for the purpose of

getting a false or fraudulent claim paid by the government. Finally,
under subsection (a)(3), Relator alleges no facts purporting to show
any conspiracy involving [defendant] to defraud the government.
All this begs the simple question; where, if not from the public
disclosures, did Relator get the information underpinning his
allegations?

Black, 2011 WL 1161737, at *8 (analyzing claims under earlier but substantively identical

version of the FCA); see also Lopez, 698 F. Supp. 2d 633, 637 (E.D. Va. 2010) (“Lopez

possesses no facts which enable her to allege ‘that the University not only knew, when it signed

the phase-one application, that contingent fees to recruiters are forbidden, but also planned to

continue paying those fees while keeping the Department of Education in the dark.’”).

Like the relators in Black and Vuyyuru, Szymoniak cannot establish her personal

knowledge of all the essential elements of her claims. As a result, the public disclosure bar

divests the Court of subject matter jurisdiction unless Szymoniak can establish that she is an

“original source.” For the reasons discussed immediately below, she cannot.

C. Szymoniak Is Not an “Original Source” of The Alleged Facts Giving Rise to

Her Claims

Although the public disclosure bar has a carve-out for claims brought by persons who

qualify as an “original source,” a relator is an original source only if she can establish, by

detailed factual allegations, that she “has direct and independent knowledge of the information

on which the allegations are based and has voluntarily provided the information to the

Government before filing” the qui tam action. 31 U.S.C. § 3730(e)(4)(B) (emphasis added).

Szymoniak is not an original source under this standard.12

12
A relator is required to “allege specific facts—as opposed to mere conclusions—showing
exactly how and when he or she obtained direct and independent knowledge of the fraudulent
acts alleged in the complaint and support those allegations with competent proof.” U.S. ex rel.
Dugan v. ADT Sec. Servs., No. 03-3485, 2009 WL 3232080, at *8 (D. Md. Sept. 29, 2009)
-27-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 35 of 46

For purposes of the “original source” carve-out, a relator’s knowledge is “direct” if the

relator “‘acquired it through his own efforts, without an intervening agency,’” and it is

“independent” if it does not depend on any public disclosure. Black, 494 F. App’x at 295-96

(quoting Grayson v. Adv. Mgmt. Tech., 221 F.3d 580, 583 (4th Cir. 2000)); see also U.S. ex rel.

Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1162-63 (10th Cir. 1999)

(“secondhand information, speculation, background information or collateral research” is not

direct knowledge); U.S. ex rel. Barth v. Ridgedale Elec., Inc., 44 F.3d 699, 703 (8th Cir. 1995)

(“[A] person who obtains secondhand information from an individual who has direct knowledge

of the alleged fraud does not himself possess direct knowledge and therefore is not an original

source under the Act.”).13

Here, instead of supporting a finding that Szymoniak is an original source, the public

record establishes that (i) Szymoniak relied on the efforts of others, including information

obtained second- and third-hand, in the course of her investigation, and (ii) with the possible

exception of her own foreclosure action, Szymoniak’s alleged “knowledge” of fraud depended

on information found in the public domain. Testimony and affidavits submitted by Szymoniak

in other borrowers’ foreclosure actions further belie any claim she might make to original source

status. As Szymoniak conceded in one action, even after her investigation, her method for

(citation and quotation marks omitted). Because the Complaint here is devoid of any detailed
allegations concerning the “who, what, when and how” of Szymoniak’s “investigation,” it fails
to establish the Court’s jurisdiction on this basis alone.
13
Additionally, where a substantial volume of publicly disclosed allegations predated the
relator’s complaint, “the extent of reliance on information already in the public domain should be
a consideration during the original source inquiry, even if that information is not a public
disclosure within the meaning of [the FCA].” U.S. ex rel. Atkinson v. Pa. Shipbldg. Co., 473
F.3d 506, 522 (3d Cir. 2007); see also U.S. ex rel. Zizic v. Q2Adm’rs, LLC, 728 F.3d 228, 240
(3d Cir. 2013) (the concept of public disclosure for original source purposes encompasses not
only sources enumerated in the FCA, but also “information that is part of the public domain”).
-28-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 36 of 46

identifying potentially false or fraudulent mortgage assignments depended on speculation, not

first-hand knowledge (see supra at 15-17).

As noted above, Szymoniak never worked for any Defendant, did not have access to any

Defendant’s books or records, and was not involved in any of the MBS purchases or financings

giving rise to her claims. Her claims under the FCA are based on nothing more than hunches

and speculation that at least some of the assignments identified by her as being potentially

“fraudulent” are associated with loans deposited (years ago) in securitizations for which one or

more of the Defendants has acted as trustee or servicer. She knows of no fact (and alleges none)

to support her allegation that Defendants either knew of or directed the fraudulent document

execution practices by certain employees at DocX—an allegation negated by LPS’s own

admissions in its non-prosecution agreement with the government. Exhibit 18 (LPS Non-

Prosecution Agreement, Feb. 14, 2013) at Appendix A, ¶¶ 10-14 (reciting admissions that DocX

employees “took various steps to conceal their actions from detection” and “concealed their

conduct from clients,” including during client on-site visits).

As a matter of well-settled law, Szymoniak’s guesswork and speculation are not enough

to make her an original source.14 Original source status cannot be established “merely by

14
To the extent the Complaint describes Szymoniak’s research of approximately one thousand
mortgage assignments, see, e.g., SAC ¶ 93, her “prediction” of an actionable false claim based
on her review of those publicly available assignments “does not qualify as direct and
independent knowledge.” Rockwell Int’l Corp v. United States, 549 U.S. 457, 475 (2007); see
also Grayson, 221 F.3d at 583 (to be “independent,” a relator’s knowledge must “not [be]
dependent on public disclosure”); U.S. ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A., v.
Prudential Ins. Co., 944 F.2d 1149, 1160 (3rd Cir. 1991) (“[T]he relator must possess
substantive information about the particular fraud, rather than merely background information
which enables a putative relator to understand the significance of a publicly disclosed transaction
or allegation.”); U.S. ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys., 274 F. Supp. 2d
824, 860 (S.D. Tex. 2003) (Relator’s experience observing invoices “arguably allowed her to
make better sense of this information [on the invoices], [but] her background alone does not
change her status from ‘recipient of information’ to ‘direct source.’”).

-29-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 37 of 46

communicating to the government, ‘I think something fishy is going on . . . ,’ and then relying on

the evidence of fraud, if any, disclosed by a subsequent government investigation . . . . [S]uch a

standard invites the very type of parasitic, opportunistic lawsuit Congress sought to preclude

when it first enacted a jurisdictional bar based on publicly disclosed information.” U.S. ex rel.

Detrick v. Daniel F. Young, Inc., 909 F. Supp. 1010, 1022 (E.D. Va. 1995); see also Black, 2011

WL 1161737, at *10 (“‘[M]ere suspicion that there must be a false or fraudulent claim lurking

around somewhere simply does not carry [the relator’s] burden of proving that he is entitled to

original source status.’”) (quoting Vuyyuru, 555 F.3d at 353); U.S. ex rel. Aflatooni v. Kitsap

Physicians Servs., 163 F.3d 516, 526 (9th Cir. 1999) (“[T]he purposes of the Act would not be

served by allowing a relator to maintain a qui tam suit based on pure speculation or conjecture.”).

Because Szymoniak cannot carry her burden of proving that she is an original source, the

Complaint should be dismissed with prejudice.15

15
Szymoniak’s claims fare no better under the public disclosure bar as amended in March 2010.
31 U.S.C. § 3730(e)(4)(A) (2010). The claims would fail even if analyzed under the amended
statute because the underlying allegations are “substantially similar” to allegations that were
publicly disclosed in the news media and federal court proceedings, including bankruptcy
proceedings, and they did not “materially add to” the information already in the public domain.
See, e.g., Beauchamp, 933 F. Supp. 2d at 844-46 (holding that online news article discussing
lawsuit involving “substantially the same” allegations required dismissal of relator’s qui tam
complaint even though the complaint was not “based upon” the news article); see also Ping Chen
ex rel. U.S. v. EMSL Analytical, Inc., No. 10-7504, 2013 WL 4441509, at *12 (S.D.N.Y. Aug.
16, 2013). Moreover, Szymoniak is not an original source under either version of the statute.
See, e.g., U.S. ex rel. Kraxberger v. Kansas City Power & Light Co., No. 11-0590, 2013 WL
4400434, at *6 (W.D. Mo. July 19, 2013) (holding that relator was not an original source under
the amended bar because “independent” knowledge must be acquired first-hand, and relator
“obtained his information from his father, conversations he overheard, and other second-hand
conversations he had . . . .”); see also Beauchamp 933 F. Supp. 2d at 843. Should the Court
consider any portion of Szymoniak’s claims under the amended statute, Defendants request that
the Court to take judicial notice of the news articles, court decisions, and court filings submitted
as Exhibits to this Memorandum.

-30-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 38 of 46

II. THE STATE AND LOCAL CLAIMS ARE ALSO BARRED

Szymoniak also purports to bring claims under the false claims statutes of seventeen

states, the District of Columbia and two municipalities.16 See SAC ¶¶ 275-433. Should

Szymoniak’s claims under the FCA be dismissed, Fourth Circuit precedent requires that her state

and local claims be dismissed as well for lack of supplemental jurisdiction. Even in the absence

of such precedent, the claims would be precluded by the public disclosure bar contained in each

of the relevant statutes.17

A. If the Federal Claims Are Dismissed, the Court Must Decline

to Exercise Supplemental Jurisdiction Over the State and Local Claims

To the extent Szymoniak’s claims under the federal FCA are dismissed, Fourth Circuit

precedent requires dismissal of her state and local claims. See Stratton v. Mecklenburg Cnty.

Dep't of Soc. Servs., 521 F. App’x 278, 291 n.25 (4th Cir. 2013) (“When a district court

dismissed federal claims for lack of subject matter jurisdiction, there was never a valid claim to

which the state claims could be considered supplemental, and dismissal of the state claims is also

required.”) (citing Crosby v. City of Gastonia, 635 F.3d 634, 644 (4th Cir. 2011)).

B. The State and Local Claims Are Precluded by the Public Disclosure Bar

1. All Claims (Except the New York Claim) Are Nearly Identical to the
Federal Claims and Fail for the Same Reasons

Even assuming, arguendo, that the Court might exercise supplemental jurisdiction over

the state and local claims, each claim should be dismissed under its own public disclosure bar.

16
The Complaint asserts claims under the false claims statutes of California, Delaware, the
District of Columbia, Florida, Hawaii, Illinois, Indiana Massachusetts, Minnesota, Montana,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Rhode Island,
Virginia, Chicago, and New York City.
17
Every one of the purported state and local law claims also fails to state a claim for the reasons
set forth in Defendants’ motion under Rule 12(b)(6), including because certain of the statutes
were enacted after the period at issue or are limited to Medicaid fraud.

-31-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 39 of 46

Other than the New York state statute, every state and local false claim statute invoked by

Szymoniak contains a public disclosure bar similar to the applicable federal bar in all material

respects.18 In essence, all of these statutes prevent a private citizen from bringing a qui tam

action based upon allegations or transactions that were disclosed in civil hearings, government

reports, or the news media, unless the relator has “independent” knowledge of the facts

underlying her claims. Thus, for all the same reasons Szymoniak’s federal claims fail, the state

and local claims fail as well. See Point I, supra.19

Courts routinely reject state and local claims where the same claim is barred under the

federal statute. See, e.g., U.S. ex rel. Colquitt v. Abbott Labs., 864 F. Supp. 2d 499, 537 (N.D.

Tex. 2012) (“All of the state false claims statutes [including California, Delaware, D.C., Florida,

Illinois, Massachusetts, New Jersey, and Virginia] include public disclosure bars that are

substantively identical to the FCA’s. Thus, the Court lacks jurisdiction over [the] state . . .

claims as to all Defendants for the same reasons it lacks jurisdiction over those claims brought

under the FCA—they are based on publicly disclosed allegations and transactions, and are not

18
See Cal. Gov’t Code § 12652(d)(3); Del. Code Ann. tit. 6, § 1206(c); D.C. Code § 2-381.03(c-
1)(2); Fla. Stat. Ann. § 68.087(3); Haw. Rev. Stat. § 661-31(b); 740 ILCS 175/4(e)(4); Ind. Code
Ann. § 5-11-5.5-7(f); Mass. Gen. Laws Ann. ch. 12, § 5G(c); Minn. Stat. Ann. § 15C.05(f);
Mont. Code Ann. § 17-8-403(6); Nev. Rev. Stat. Ann. § 357.100; N.H. Rev. Stat. Ann. § 167:61-
e(III); N.J. Stat. Ann. § 2A:32C-9(c); N.M. Stat. Ann. § 27-14-10.C; N.C. Gen. Stat. Ann. § 1-
611(d); R.I. Gen. Laws Ann. § 9-1.1-4(e)(4)(A); Va. Code Ann. § 8.01-216.8; Chi. Mun. Code §
1-22-030(f); NYC Admin. Code § 7-804(d).
19
Several of the statutes provide that the relator must also prove that her disclosure to the
government was the “basis or catalyst” for the original chain of events that led to the allegations
becoming publicly disclosed. See Cal. Gov’t. Code §12652(d)(3)(B); D.C. Code §2-381.03(c-
1)(2)(B); Haw. Rev. Stat. §661-31(c); Minn. Stat. Ann. §§15C.01, Subdivision 4; Mont. Code
Ann. §17-8-403(6); Nev. Rev. Stat. § 357.100(c). Here, Szymoniak’s purported communications
with the government in December 2009 were not the “basis or catalyst” for the myriad earlier
public disclosures described in the Statement of Facts, above. Neither were they the catalyst for
the government investigations of LPS and DocX, which were precipitated instead by David
Breidenbach in October 2009. See Exhibits 17-19 (Breidenbach letters and LPS Non-
Prosecution Agreement).

-32-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 40 of 46

based on information of which [Plaintiff] is an original source.”); Bannon v. Edgewater Med.

Ctr., 406 F. Supp. 2d 907, 915 n.8 (N.D. Ill. 2005) (same for Illinois); Whipple v. Chattanooga-

Hamilton Cnty. Hosp. Auth., No. 3-11-0206, 2013 WL 4510801, at *9 (M.D. Tenn. Aug. 26,

2013) (same for North Carolina, “which basically mirror[s] the federal law”).20

2. The New York Claim Is Also Barred

Szymoniak’s claims are precluded under the New York statute as well, which provides,

in relevant part:

The court shall dismiss a qui tam action under this article, . . .
unless the qui tam plaintiff is an original source of the
information, 21 if substantially the same allegations or
transactions as alleged in the action were publicly disclosed:

(i) in a state or local government criminal, civil, or

administrative hearing in which the state or a local government
or its agent is a party;

(ii) in a federal, New York state or New York local government

report, hearing, audit, or investigation . . .;

(iii) in the news media, provided that such allegations or

transactions are not “publicly disclosed” in the “news media”

20
Szymoniak’s failure to assert her non-federal claims until March 2011 further supports the
conclusion that she did not know of these potential claims until after a review of publicly
available sources. Just as Szymoniak had Figueroa research MBS purchases by the federal
government, she presumably researched purchases by state and local governments as well.
Moreover, by that time Szymoniak filed her first amended pleading in March 2011, media
coverage of the underlying allegations was even more pervasive, including coverage of
government investigations into potential “forgeries” by employees at DocX. See, e.g., Abigail
Field, Florida Attorney General Subpoenas Lender Processing Services, Daily Finance, Oct. 14,
2010; Gretchen Morgenson, Banks’ Flawed Paperwork Throws Some Foreclosures Into Chaos,
N.Y. Times, Oct. 4, 2010, at A1; David Streitfeld, JPMorgan Suspending Foreclosures, N.Y.
Times, Sept. 30, 2010, at B1 (collected as Exhibit 26).
21
“Original source” is defined as “a person who (a) prior to a public disclosure . . . has
voluntarily disclosed to the state or a local government the information on which allegations or
transactions in a cause of action are based, or (b) who has knowledge that is independent of and
materially adds to the publicly disclosed allegations or transactions, and who has voluntarily
provided the information to the state or a local government before or simultaneous with filing an
action under this article.” N.Y. State Fin. Law § 188(7).
-33-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 41 of 46

merely because information of allegations or transactions have

been posted on the internet or on a computer network.

N.Y. State Fin. Law § 190(9) (emphasis added).

As demonstrated in Point I, supra, the allegations in the Complaint are “substantially

similar” to allegations contained in qualifying public disclosures. Moreover, Szymoniak has not

pleaded and cannot show that she had “independent” knowledge that “materially add[ed]” to the

publicly disclosed allegations. Indeed, by the time Szymoniak amended her Complaint to add

her state and local claims, the relevant allegations had already received pervasive national news

coverage. See Exhibit 26 (collecting articles). Thus, her claim under the New York statute fails

as well.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court dismiss the

Second Amended Complaint in its entirety, with prejudice, and grant such other and further relief

as the Court deems just and proper.

-34-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 42 of 46

Respectfully Submitted,

By: /s/ E. Bart Daniel By: /s/ Alice W. W. Parham

E. Bart Daniel (Fed. ID No. 9002) Alice W. W. Parham (Fed ID No. 9431)
([email protected]) ([email protected])
7 State Street J. Theodore Gentry (Fed. ID No. 5566)
Charleston, SC 29401 ([email protected])
Telephone: 843.722.2000 Matthew T. Richardson
Facsimile: 843.722.6254 (Fed. ID No. 7791)
([email protected])
-and- WYCHE, PA
 P.O. Box 12247
Douglas A. Axel (pro hac vice Columbia, SC 29211-2247
application pending) Telephone: 803.254.6542
([email protected]) Facsimile: 803.254.6544
Anand Singh (pro hac vice application
pending) -and-
([email protected])
SIDLEY AUSTIN LLP Matthew D. Ingber (pro hac vice)
555 West Fifth Street
Los Angeles, CA 90013 ([email protected])
Telephone: 213.896.6000 Christopher J. Houpt (pro hac vice)
Facsimile: 213.896.6600 ([email protected])
MAYER BROWN LLP
Attorneys for Defendant Bank of 1675 Broadway
America Corp. New York, NY 10019
Telephone: 212.506.2380
Facsimile: 212.849.5830

Attorneys for Defendant The Bank of New

York Mellon Corp.

-35-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 43 of 46

By: /s/ A. Mattison Bogan By: /s/ Alice W. W. Parham

A. Mattison Bogan (Fed. ID No. 9826) Alice W. W. Parham (Fed ID No. 9431)
([email protected]) ([email protected])
NELSON MULLINS RILEY & J. Theodore Gentry (Fed. ID No. 5566)
SCARGOROUGH LLP ([email protected])
Meridian, 17th Floor Matthew T. Richardson
1320 Main Street (Fed. ID No. 7791)
Columbia, SC 29201 ([email protected])
Telephone: 803.799.2000 WYCHE, PA
Facsimile: 803.256.7500 P.O. Box 12247
Columbia, SC 29211-2247
-and- Telephone: 803.254.6542
Facsimile: 803.254.6544
Maria T. Vullo (pro hac vice application
pending) -and-
([email protected])
PAUL, WEISS, RIFKIND, WHARTON Michael S. Kraut (pro hac vice
& GARRISON LLP application pending)
1285 Avenue of the Americas ([email protected])
New York, NY 10019 MORGAN, LEWIS & BOCKIUS LLP
Telephone: 212.373.3000 101 Park Avenue
Facsimile: 212.757.3990 New York, NY 10178
Telephone: 212.309.6000
Attorneys for Defendants CitiMortgage, Inc. Facsimile: 212.309.6001
and Citibank, N.A.
Attorneys for Defendants Deutsche Bank
National Trust Company and Deutsche
Bank Trust Company Americas

-36-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 44 of 46

By: /s/ Melissa J. Copeland By: /s/ B. Rush Smith III

Melissa J. Copeland (Fed. ID No. 6241) B. Rush Smith III (Fed. ID No. 5031)
([email protected]) ([email protected])
SCHMIDT & COPELAND, LLC NELSON MULLINS RILEY &
1201 Main Street, Suite 1100 SCARBOROUGH LLP
Columbia, SC 29201 1320 Main Street
Telephone: 803.748.1342 Columbia, SC 29201
Facsimile: 803.748.1210 Telephone: 803.799.2000
Facsimile: 803.256.7500
-and-
-and-
Gerard E. Wimberly, Jr. (pro hac vice)
([email protected]) Michael O. Ware (pro hac vice
David R. Dugas (pro hac vice) application pending)
([email protected]) ([email protected])
Daniel T. Plunkett (pro hac vice) Jennifer M. Rosa
([email protected]) ([email protected])
Gabriel A. Crowson (pro hac vice) MAYER BROWN LLP
([email protected]) 1675 Broadway
Melissa H. Harris (pro hac vice) New York, NY 10019
([email protected]) Telephone: 212.506.2500
MCGLINCHEY STAFFORD, PLLC Facsimile: 212.262.1910
601 Poydras Street, 12th Floor
New Orleans, LA 70130 Attorneys for HSBC Bank USA, N.A.
Telephone: 504.586.1200
Facsimile: 504.596.2800

Attorneys for Defendant Homeward

Residential, Inc., f/k/a American Home
Mortgage Servicing, Inc.

-37-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 45 of 46

By: /s/ Joseph P. Griffith, Jr. By: /s/ James K. Lehman

Joseph P. Griffith, Jr. (Fed. ID No. 2473) James K. Lehman (Fed. ID No. 5378)
([email protected]) ([email protected])
JOE GRIFFITH LAW FIRM, LLC Thad H. Westbrook (Fed. ID No. 7561)
Seven State Street ([email protected])
Charleston, SC 29401 NELSON MULLINS RILEY &
Telephone: 843.225.5563 SCARBOROUGH LLP
Facsimile: 843.722.6254 Meridian, 17th Floor
1320 Main Street
-and- Columbia, SC 29201
Telephone: 803.799.2000
Robert M. Brochin (pro hac vice Facsimile: 803.256.7500
application pending)
([email protected]) -and-
Brian M. Ercole, Esquire (pro hac vice
application pending) Mary Gail Gearns (pro hac vice
([email protected]) application forthcoming)
MORGAN LEWIS & BOCKIUS LLP ([email protected])
200 South Biscayne Blvd., Suite 5300 Colleen O’Loughlin (pro hac vice
Miami, FL 33131-2339 application forthcoming)
Telephone: 305.415.3000 ([email protected])
Facsimile: 305.415.3001 BINGHAM MCCUTCHEN LLP
399 Park Avenue
Attorneys for Defendant JPMorgan Chase New York, NY 10022
Bank, N.A. Telephone: 212.705.7000
Facsimile: 212.752.5378

Attorneys for Defendant Saxon Mortgage

Services, Inc.

-38-
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-1 Page 46 of 46

By: /s/ Jana B. Baker By: /s/ J. Walker Coleman, IV

Jana B. Baker (Fed. ID No. 9944) J. Walker Coleman, IV
([email protected]) (Fed. ID No. 6007)
John C. Hawk (Fed. ID No. 9853) ([email protected])
([email protected]) K&L GATES LLP
Kevin A. Hall (Fed. ID No. 5375) 134 Meeting Street, Suite 200
([email protected]) Charleston, SC 29401
WOMBLE CARLYLE SANDRIDGE & Telephone: 843.579.5600
RICE, LLP Facsimile: 843.579.5601
5 Exchange Street
Charleston, SC 29401 Attorney for Defendants Wells Fargo Bank,
Telephone: 843.722.3400 N.A. and Wells Fargo Home Mortgage,
Facsimile: 843.723.7398 d/b/a America’s Servicing Company
(incorrectly named as a separate entity)
-and-

Eric A. Dubelier (pro hac vice

application forthcoming)
([email protected])
Katherine J. Seikaly (pro hac vice
application forthcoming)
([email protected])
REED SMITH LLP
1301 K Street, NW
Suite 1100 East Tower
Washington, DC 20005
Telephone: 202.414.9200
Facsimile: 202.414.9299

Attorneys for Defendant U.S. Bank

National Association

-39-
0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-2 Page 1 of 2

EXHIBIT 1
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-2 Page 2 of 2
Case 0:13-cv-61020-JIC Document 47-4 Entered on FLSD Docket 08/16/2013 Page 1 of 53
0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-3 Page 1 of 2

EXHIBIT 2
 0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-3 Page 2 of 2
Case 0:13-cv-61020-JIC Document 47-4 Entered on FLSD Docket 08/16/2013 Page 2 of 53
0:10-cv-01465-JFA Date Filed 01/15/14 Entry Number 234-4 Page 1 of 12

EXHIBIT 3
0:10-cv-01465-JFA
0:10-cv-01465-JFA Date
DateFiled
Filed01/15/14
02/03/12 Entry
EntryNumber
Number234-4
66-4 Page
Page12of
of11
12