Homeowner Helen Galope's Opening Appellant Brief in 9th Circuit regarding the LIBOR class action...

Docket No. 12-56892

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HELEN GALOPE, on behalf of herself and all others similarly situated,

Plaintiffs - Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER

POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2007

SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2007-BR4;

WESTERN PROGRESSIVE, LLC; BARCLAYS BANK PLC, BARCLAYS

CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING; OCWEN LOAN

SERVICING, LLC, and DOES 4 through 10, Inclusive,

Defendant - Appellee.

APPELLANTS’ OPENING BRIEF

APPEAL FROM THE U.S. DISTRICT COURT

For the Central District of California, Santa Ana

Case No. 8:12-cv-00323-CJC (RNBx) The Honorable Cormac J. Carney, Presiding

Lenore L. Albert, Esq. SBN 210876

Law Offices of Lenore Albert

7755 Center Avenue, Suite #1100

Huntington Beach, CA 92647

Ph: 714-372-2264 Fx: 419-831-3376

Email: [email protected]

Counsel for Plaintiffs – Appellants, Helen Galope

On behalf of herself and all others similarly situated

Case: 12-56892 04/24/2013 ID: 8603872 DktEntry: 9-1 Page: 1 of 76 (1 of 82)

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TABLE OF CONTENTS

I. STATEMENT OF THE CASE ...................................................................1

II. STATEMENT OF FACTS .........................................................................4

III. PROCEDURAL HISTORY ........................................................................13

IV. STATEMENT OF KEY ISSUES ON APPEAL .........................................16

V. STANDARD OF REVIEW ........................................................................16

VI. SUMMARY OF ARGUMENT ..................................................................17

VII. STANDARD OF REVIEW ........................................................................19

VIII. ARGUMENT..............................................................................................20

A. This Case Cannot Be Mooted Through Involuntary Settlements ................. 17

B. Price Fixing under section 1 of the Sherman Antitrust Act .......................... 23

1. Plaintiff Has Standing to Bring This Claim .............................24

2. Plaintiff’s Consumer Expectations Were Not Taken Into

Account ..................................................................................25

3. The Consumer Expectation Test is Widely Used ....................26

4. The Rational Expectation Theory is Also Used .......................27

5. Article III Standing Was Met in this Case ...............................30

6. Plaintiff was a Purchaser of the Price Fixed Product So

She Met the Direct Injury Test ................................................30

7. Plaintiff Had a LIBOR Loan so Her 30-Year Debt Was

Tied to LIBOR ........................................................................31

8. Plaintiff Rationally Expected to Refinance to A Lower

Rate at a Later Time So She Purchased the Loan ....................33

9. Plaintiff Had Standing to Obtain an Injunction .......................35


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C. 17200 As to the LIBOR Manipulation ........................................................38

1. The Nature of Plaintiff’s Injury; that is, This Was the Type of

Harm the Antitrust Laws Were Intended to Forestall .............................40

2. The Injury is Direct ................................................................................41

3. The Nature of the Harm is not Speculative.............................................41

D. FAL Based on LIBOR Manipulation ..........................................................45

E. Wrongful Foreclosure .................................................................................47

1. No Tender Is Required ...........................................................................49

2. The Maker of the Note Did not Transfer the Note to Any

Defendant ..............................................................................................50

3. The Documents had Indicia of Robo-Signing ........................................50

F. Transferring Property in Violation of 11 USC §362 is an Unlawful

Business Practice ........................................................................................51

G. Breach of Good Faith & Fair Dealing .........................................................53

1. The Power of Sale Covenant ..................................................................53

2. Implied Covenant to Disclose All Material Terms .................................54

H. Fraud ..........................................................................................................56

1. Misrepresentation ..................................................................................57

2. Knowledge of Falsity .............................................................................57

3. Intent to Defraud or Assertion of Fact of that which is Not True by

one who has No Reasonable Ground for Believing it to Be True ...........57

4. Justifiable Reliance ................................................................................58

5. Damage ..................................................................................................59

I. Declaratory Relief .......................................................................................60

J. UCL 17200 As to the Modification .............................................................60

K. Failure to Give Leave to Amend .................................................................61

IX. CONCLUSION ..........................................................................................62

X. STATEMENT OF RELATED CASES .......................................................64

XI. CERTIFICATE OF WORD COUNT..........................................................65

XII. PROOF OF SERVICE ................................................................................66


TABLE OF AUTHORITIES

Supreme Court Opinions Blue Shield v McCready, 477 US 465, 107 SCt 2540 (1982) .............................. 31 BMW of North America v. Gore, (1996) 517 U.S. 559 , 134 L. Ed. 2d 585,

123 S. Ct. 1513 ......................................................................................... 52 Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) .......... 31 Friends of the Earth, Inc. v. Laidlaw Ent'l Serv., Inc, 528 U.S. 167, 180-81,

120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) ............................................ 21, 32 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d

351 (1992) .................................................................................... 29, 32, 35 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct.

1348, 89 L. Ed. 2d 538 (1986) ................................................................................................ 27

Northern Pacific Ry. v. U.S., 356 US 1, 5 (1958) ...................................... 7, 24, 40 U.S. v Socony-Vacuum Oil Co. Inc., 310 US 150 (1940) .............................. Passim Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9, 89 S.

Ct. 1562, 23 L. Ed. 2d 129 (1969) ............................................................. 32

Ninth Circuit Opinions Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) .............................................. 35 Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999) .......................................... 20 Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1102 (9th Cir.

1999) ........................................................................................................ 24 Central Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir.

2002) ........................................................................................................ 34 Crayton v. Concord EFS, Inc. (In re ATM Fee Antitrust Litig.), 686 F.3d 741

(9th Cir. 2012) .......................................................................................... 31 Dawson v. Wash. Mut. Bank (In re Dawson), 390 F.3d 1139 (9th Cir. 2004) ...... 47 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) .............. 61 Erickson v PNC Mortg., 2011 WL 1743875 (D. Nev May 6, 2011) .................... 53 Freeman v San Diego Ass’n of Realtors, 322 F.3d 1133 (9th Cir. 2011) ............. 25 Harris v. Amgen, Inc., 573 F.3d 728 (9th Cir. 2009) ........................................... 20


ii

Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004) ............... 19 In re Abrams, 127 BR 239, 240-244 (9th Cir BAP 1991) .................................... 47 In re Davis, 177 BR 907, 911-912 (9th Cir BAP 1995) ....................................... 48 In re Dawson, 390 F3d 1139, 1149 (9th Cir 2004) .............................................. 51 In re Ramirez , 183 BR 583, 589 (9th Cir BAP 1995) ......................................... 51 In re Wardrobe, 559 F3d 932, 934 (9th Cir. 2009) .............................................. 46 Johnson v General Mills, Inc, 275 FRD 282, 286 (CD Cal 2011) ....................... 60 Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) ......................................... 21 Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011) ............................. 19 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) ............ 20 Parker v. Bain, 68 F.3d 1131, 1138 (9th Cir. 1995) ............................................ 46 Royal Printing Co. v Kimberly-Clark Corp., 621 F.2d 323 (9th Cir. 1980) ......... 36 Serra v. Lappin, 600 F.3d 1191 (9th Cir. 2010) ................................................... 20 Simo v. Union of Needletrades, 322 F.3d 602 (9th Cir. 2003) ............................. 19 Southwest Marine, Inc. v Triple A Machine Shop, Inc., 720 F.Supp. 805 808

(ND Cal 1989) .......................................................................................... 37 Sternberg v Johnston, 595 F.3d 937 (9th Cir. 2010) ............................................. 47 Studio Unions v Loews, Inc. 193 F2d 51, 54-55 (9th Cir 1951), cert denied,

342 US 919, 72 SCt 367 (1952) ................................................................ 30 Summit Tech., Inc. v. High-Line Med. Instruments Co., 933 F. Supp. 918

(C.D. Cal. 1966) ........................................................................................ 38 Sundance Land Corp. v. Community First Fed'l Sav. & Loan Ass'n, 840 F.2d

653, 661 (9th Cir. 1988) ...................................................................... 35, 48 Susilo v Wells Fargo Bank, 706 F Supp 2d 1177 (CD Cal 2011) ......................... 54 Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011) ........................ 19

Second Circuit Opinions U.S. Football League v. National Football League, 842 F.2d 1335, 1376-70

(2d Cir. 1988) ........................................................................................... 33

Third Circuit Opinions Sterling Nat'l Mortg. Co. v. Mortgage Corner, 97 F.3d 39 (3rd Cir. 1996) ......... 27


iii

Fifth Circuit Opinions In re Catfish Antitrust Litigation, 908 F. Supp. 400, 410 (N.D. Miss) ................. 32

Sixth Circuit Opinions Dry Cleaning & Laundry Institute of Detroit, Inc. v. Flom's Corp., 841 F.

Supp. 212, 215 (E.D. Mich. 1993) ............................................................ 33

Seventh Circuit Opinions A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396 (7th Cir.

1989) ........................................................................................................ 27 Wigod v Wells Fargo, 673 F3d 547 (7th Cir. 2012) ............................................. 53

Eighth Circuit Opinions Morgan v. Ponder, 892 F.2d 1355 (8th Cir. 1989) .............................................. 27

Eleventh Circuit Opinions Bailey v. Allgas, Inc., 284 F.3d 1237 (11th Cir. 2002) ......................................... 27

California State Opinions Akers v. Kelley Co., 173 Cal. App. 3d 633, 650-52 (Cal. Ct. App. 1985) ............ 26 Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 ...................... 57 Allied Grape Growers v Bronco Wine Co, 203 CalApp3d 432 (1988) ................ 43 Boschma v Home Loan Ctr, Inc. 198 CalApp4th 230, 254 (2011) ....................... 60 Carma Developers (Cal.), Inc. v. Marathon Development California, Inc.,

(1992) 2 Cal.4th 342, 371-372 .................................................................. 52 Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th

163 (1999) ................................................................................................ 37 Chern v Bank of America, 15 Cal3d 866, 870 (1976) .......................................... 44 Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255 ...... 56 DeMando v Morris, 206 F.3d 1300 (9th Cir. 2000) ............................................. 55 Hewlett v. Squaw Valley Ski Corp., 54 Cal.App.4th 499 (1997) .................... 38, 51 Intengan v BAC Home Loans Servicing, 2013 Cal. App. LEXIS 225

(3/22/13) ................................................................................................... 61 Johnson v. Ford Motor Company, 35 Cal. 4th 1191 (2005) ............................... 51


iv

Jolley v Chase Bank Finance, LLC, (2013, 1st Dist) 2013 Cal.App. LEXIS 107 ................................................................................................. 55, 56, 61

Kwikset Corp. v Sup. Court, (2011) 51 Cal 4th 310 ......................... 38, 39, 59, 60 Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 ........................................... 56 Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 93 ........................................ 56 Motors, Inc. v Times-Mirror Co., 102 CalApp3d, 735, 741-742 (1980) .............. 37 Munger v. Moore (1970) 11 Cal. App. 3d 1, 7 .................................................... 46 People v Toomey, 157 CalApp3d 1 (1985) .......................................................... 43 Pfeiffer v Countrywide Home Loans, Inc. 211 Cal App4th 1250 (12/13/12) 48, 59, 61 Poseidon Development Inc v. Woodland Lane Estates, LLC (2007) 152 Cal.

App. 4th 1106 ........................................................................................... 59 Reese v. Wal-Mart Stores, Inc., 73 Cal. App. 4th 1225 (1999), (Unruh Civil

Rights Act, Cal. Civ. Code §§ 51-51.4) ..................................................... 38 Shapiro v. Sutherland 64 Cal.App.4th 1534, 1548 (1998) ................................... 57 Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553 (1998) .............. 38 Walker v. Countrywide Home Loans, Inc., 98 Cal. App. 4th 1158 (2002) ........... 38 Wallace v Geico General Ins. Co., 183 CalApp4th 1390 (2010) ................... 21, 51 West v. Johnson & Johnson, 174 Cal. App. 3d 831 (Cal. Ct. App. 1985) ............ 26 West v JPMorgan Chase Bank, N.A. (2013) 214 CalApp4th 780 ........................ 61 Wilner v. Sunset Life Ins. Co., 78 Cal. App. 4th 952 (2000) ................................ 38

Other State Opinions Delmarva Health Plan v. Aceto, 750 A.2d 1213 (Del. Ct of Chanc. 1999) .......... 27

Federal Statutes 7 USC §9 ............................................................................................................. 41 7 USC §12(a)(2) ................................................................................................. 41 7 USC §13b .................................................................................................. 41, 42 11 USC §362 .............................................................................................. Passim 28 USC §1291 ...................................................................................................... 1 28 USC §1332 ...................................................................................................... 1 Commodity Exchange Act Section 6(c) ......................................................... 16, 41


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Commodity Exchange Act Section 6(d) ........................................................ 16, 41 12 CFR §226 ....................................................................................................... 54 62 Fed. Reg. 23,189 (Apr. 29, 1997) ................................................................... 55 73 Fed. Reg. 44,522 (July 30, 2008) ................................................................... 55

California Statutes California Business & Professions Code §17200 .............................. 21, 37, 50, 51 California Business & Professions Code §17204 ................................................ 21 California Commercial Code §3201 ..................................................................... 49 Penal Code §115 ................................................................................................. 49 Penal Code §132 .................................................................................................. 49 Penal Code §186.2 .............................................................................................. 49 Penal Code §§470 ................................................................................................ 49 Senate Bill 900..................................................................................................... 23

Other 3A Arthur L. Corbin, Corbin on Contracts § 654A(B) at 89 (Supp. 1994). .......... 27 Restatement Second of Torts (section 533) .......................................................... 57 4 Witkin, Sum. Of Cal. Law (10th ed. 2005) Secured Transactions in Real

Property, §168. .......................................................................................... 46


I. JURISDICTIONAL STATEMENT

The district court had jurisdiction over this matter because it concerned a

controversy of $5,000,000.00 or greater where at least one plaintiff was diverse

from the defendant under CAFA 28 USC §1332.

This court has jurisdiction under 28 USC §1291 to review a final order of

dismissal.

Judgment was entered on October 11, 2012 (Doc. No. 111) (ER 8-17) as to

the Barclays LIBOR Rate Defendants, and judgment was entered on September 26,

2012 (Doc. No. 108) as to the Deutsche Bank National Trust Company Foreclosing

Defendants (Doc. No. 108) (ER 18-28) as a direct result of a series of interlocutory

orders to show cause that issued. (ER 29-32)

A timely appeal was noticed on October 16, 2012. (ER1-7)

II. STATEMENT OF KEY ISSUES ON APPEAL

1. Whether the district court erred in dismissing a putative class action of

borrowers who purchased LIBOR loans against the LIBOR manipulation

defendants for violation of the antitrust laws, unfair competition, false

advertising law, fraud, and breach of the covenant of good faith and fair

dealing.

2. Whether the district court erred in granting summary judgment to the

foreclosing defendants who took Plaintiff’s property in violation of the


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automatic stay then refused to rescind the sale thereafter; and created a

“modification” agreement but purportedly used “legal” size paper that

contained all of the payment terms then faxed it to plaintiff to sign on the

grounds Plaintiff did not have standing because Plaintiff was not injured

as a result.

3. Whether issuing a series of Orders to Show Cause was just in this case.

4. Whether the district court erred in not allowing plaintiff leave to amend.

III. PRIMARY AUTHORITY

All applicable statutes, constitutional provisions, treaties, statutes,

ordinances, regulations and rules are contained in the brief, except for California’s

Home Owner’s Bill of Rights (“HBOR”) which is already part of the record in the

Excerpts. Circuit Rule 28-2.7

IV. STATEMENT OF THE CASE

Helen Galope received a loan from loan seller, New Century Mortgage, in

2006 with a high interest rate expecting to refinance in 6 months. It was a LIBOR

based loan and she was not allowed to refinance to a lower rate. She was offered a

modification but did not receive all modified terms because it was a legal size

document faxed to her which she printed on letter paper. When she sought

bankruptcy protection to work the loan out, defendants transferred title during the

automatic stay by foreclosure sale. Barclays was the entity servicing the loan and


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created the trust and SWAP agreements. DBNTC was the trustee. Barclays and

DBNTC later admitted they were involved in manipulating the LIBOR rate during

the relevant time period of this loan. Those financial institutions bet against the

borrower, and cashed in.

Plaintiff seeks to reinstate this putative class action against DEUTSCHE

BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING

AND SERVICING AGREEMENT DATED AS OF MAY 1, 2007 SECURITIZED

ASSET BACKED RECEIVABLES LLC TRUST 2007-BR4; WESTERN

PROGRESSIVE, LLC; BARCLAYS BANK PLC, BARCLAYS CAPITAL REAL

ESTATE INC. d/b/a HOMEQ SERVICING; OCWEN LOAN SERVICING, LLC,

and DOES 4 through 10, inclusive, (“Defendants”) on the grounds that defendants

were a substantial factor in plaintiff losing her home.

V. STATEMENT OF FACTS

On March

On March 1, 2012 Helen Galope filed this action alleging wrongful

foreclosure, declaratory relief, breach/rescission, violation of Truth In Lending

(“TIL”) and unfair competition liability (“UCL”) claims. (ER 33-43).

The action was originally filed against the foreclosing Defendants, Deutsche

Bank National Trust Company (“DBNTC”); and Western Progress, LLC. (ER 33-

57).


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On June 27, 2012 the CFTC imposed the largest civil penalty ever against

Barclays (d/b/a HomeEq) for unlawfully manipulating the LIBOR market rate

during the time Galope was given her loan based on LIBOR and modification

thereon. Barclays was fined $454 million dollars for its conduct of market

manipulation. (ER 359).

At that time, Barclays Bank PLC, Barclays Capital Real Estate Inc. d/b/a

HomEq Servicing, and Ocwen Loan Servicing, LLC (“Ocwen”) were added to the

Complaint as Defendants along with the supplemental allegations of price-fixing.

(ER 653).

Helen Galope acquired title to her home located in Los Angeles County,

California on September 24, 2004. (ER 37, 242). Her original loan was an Interest

Only Adjustable Rate Mortgage that was set to reset in 2006. (ER 242). Her broker

reassured her that she could obtain a fixed rate loan at a lower interest rate before

the mortgage reset. (ER 242). So she contacted the broker in 2006 to refinance her

mortgage. (ER 37, 242). However, when she arrived to sign the new papers, she

was once again being placed in another Interest Only Adjustable Rate Mortgage

that would reset in two years. (ER 242). The initial interest rate of 8.775% was

better than what her current mortgage would be after it reset so she signed the

document upon the expectation that she would be receiving a new refinance

package with a lowered fixed rate in the next six months. (ER 242).


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This refinance was secured by a deed of trust with a promissory note

whereby New Century Mortgage Corporation, the loan seller, sold plaintiff a

LIBOR interest only adjustable rate mortgage in the sum of $522,000.00 secured

by Ms. Galope’s Subject Property on or about December 15, 2006. (ER 37, 242,

656).

New Century was hired as an agent of Barclays to sell this particular loan

product.

According to the Defendants, Plaintiff’s loan was placed in a mortgage

backed securitized trust captioned the “SECURITIZED ASSET BACKED

RECEIVABLES LLC TRUST 2007-BR4” (“MBS trust”). (ER 656).

Defendant, DBNTC was the trustee in charge of administering the MBS

trust. (ER 656).

Defendant, Barclays Capital Real Estate Inc. d/b/a HomEq was the

designated servicer on this loan which defendant Ocwen took over in 2009-2010.

(ER 656).

Defendant, Barclays Bank PLC was the administrator of the sponsor, wholly

owned the depositor as a subsidiary, and was the Interest Rate Swap and Cap

Provider of the MBS trust. (ER 656).

The terms of Ms. Galope’s loan were abusive and predatory. (ER 242, 656).

Ms. Galope’s debt was based on the LIBOR rate. (ER 656).


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There were 5,072 loans placed in the MBS trust and a substantial portion of

them were based on the LIBOR rate like Ms. Galope’s loan. (ER 657).

The interest rate would adjust every six (6) months based on the published

LIBOR rate plus other fixed percentage points added to the LIBOR rate as laid out

in the Note. (ER 657).

LIBOR is an acronym for London Interbank Offered Rate and is,

“intended to be a barometer to measure strain in money markets,

that it often is a gauge of the market’s expectation of future

central bank interest rates, and that approximately $350 trillion

of notional swaps and $10 trillion of loan are indexed to LIBOR.”

(ER 657).

Unbeknownst to plaintiff, Barclays PLC and Barclays Capital Real Estate

Inc. d/b/a HomEq Servicing was manipulating the LIBOR rate from 2005 through

2009. (ER 657).

The Barclays Defendants and Deutsche Bank defendants are some of the

largest international financial institutions in the world. (ER 657).

They are two (2) of sixteen (16) financial institutions that daily report their

interest rates that are then pooled together where in the middle eight (8) rates are

then averaged for Barclays then to create the LIBOR rate. (ER 657).

The LIBOR rate is reported daily in the Wall Street Journal and there is also

the 1 month, 3 month, 6 month and 12 month LIBOR rate. (ER 657).

Ms. Galope’s home loan was based on the 6 month LIBOR rate. (ER 657).


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The average home loan in the United States is a loan expected to be paid

back over a thirty year (30) term. (ER 657).

Ms. Galope’s home loan was originally supposed to be paid back over a 30

year term. (ER 657).

Over the course of a loan, a consumer, like Ms. Galope is expected to pay

principal plus interest based on the principal loan amount which is supposed to be

based on the current market value of the home. (ER 658).

The market interest rates of LIBOR which represents the cost of loaning

money and market value of long term investments such as real property are

complementary rates that should fluctuate in unison over time based on

independent market factors. If it costs more dollars to borrow money (the LIBOR

rate) then the price to buy the property should also go up (market value). (ER 658).

Barclays, along with the assistance of DBNTC and other nondefendants

manipulated the LIBOR rate. (ER 658).

Traditionally, certain agreements have been “conclusively presumed to be

unreasonable and therefore illegal without elaborate inquiry as to the precise harm

they have caused or the business excuse for their use” because of “their pernicious

effect on competition and lack of any redeeming virtue.” Northern Pacific Ry. v.

U.S., 356 US 1, 5 (1958). (ER 658).


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Such agreements are considered illegal, per se. U.S. v Socony-Vacuum Oil

Co. Inc., 310 US 150 (1940). (ER 658).

Barclays has entered into several agreements with various government

agencies admitting that Barclays and other financial institutions and their

agents/employees were manipulating the LIBOR rate, fixing the rate higher or

lower at various times from 2005 through 2009. (ER 658).

According to Appendix A to the Non-Prosecution Agreement, dated June

26, 2012 between the United States Department of Justice Criminal Division,

Fraud Section, and Barclay’s Bank PLC, at the same time plaintiff, Ms. Galope’s

initial loan rate was being figured, a message was sent to manipulate the LIBOR

rate as follows:

“For Monday we are very long 3m cash here in NY and would

like the setting to be set as low as possible…thanks” (December

14, 2006, Trader in New York to Submitter).”

(ER 659).

Six Month LIBOR in November of 2006 was 5.3495 percent. (ER 659).

Plaintiff’s note based on LIBOR required plaintiff to initially pay 8.775

percent interest. (ER 266).

There was no margin that would account for the difference in the rate in the

note. The note just plainly stated that the interest only period would be 8.775

percent interest.


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Consequently, Plaintiff had a reasonable expectation with the information

known to her that she could refinance for a lower rate in the future when she

entered into this loan product.

Over the next several years while Barclays was manipulating the LIBOR

rate, the manipulated LIBOR rate actually decreased. (ER 385-387; 382-383; 389-

409; 455-472)

So while plaintiff was stuck paying 8.775% fixed interest on her interest

only LIBOR rate loan, Barclays was making a positive cash flow and keeping

consumer expectations high that they could enter into these bad loan products on

the grounds it looked reasonable that they could obtain a lower interest in the

future. This promise made upon signing was a common industry practice during

this time period. (ER 2066 et seq)

The problem was that the actual LIBOR rate was not a true market rate but it

was being artificially suppressed.

Through various government investigations, it was discovered that LIBOR

submitters regularly considered the swaps traders’ requests when determining and

making Barclays’ US Dollar LIBOR submissions. (ER 385-387; 382-383; 389-

409; 455-472)

The court found that Plaintiff had no standing under any theory on the

grounds she had not been harmed. Galope alleged that during this time period, she


10

paid $34,354.17, $20,229.88 and $9,430.92 in interest on her loan in 2007, 2008,

and 2009 respectively. By mid-2008 she was in default and at risk of her losing her

home. (ER 2070-2101)

During each of these years, Barclays Bank PLC and Barclays Capital Real

Estate Inc d/b/a HomEq were manipulating the LIBOR rate. (ER 385-387; 382-

383; 389-409; 455-472)

Ms. Galope was hospitalized in 2008 wherein she nominally fell behind on

her interest mortgage payments. (ER 243)

To cure the default, plaintiff attempted to obtain a loan modification on

April 7. 2008 from Barclays Capital Real Estate Inc d/b/a HomEq where $7,634.26

was then capitalized to the principal amount owed on her loan which also

coincided shortly after the last item was publicly reported to the SEC with regard

to the MBS trust. (ER 55-57; 119-121)

Taheera Franklin, employee of HomEq, faxed a document dated April 7,

2008 titled “Modification Agreement” to plaintiff on or about April 10, 2008.

Attachment A recited that the $7,634.26 was being added to the principal of

the loan; that the existing payment of $3,817.13 was being reduced to $2,465.61

plus impound of $561.41 making her new payment $3,027.02 and that the

remaining term on her new loan was 345 months at an interest rate of 5.5%. (ER


11

55-57; 119-121; 2070-2101)Taheera Franklin instructed plaintiff to sign it and fax

it back.

So, plaintiff immediately signed the agreement as presented on the belief

that her loan was modified to more favorable terms and continued to make all of

her payments in 2008.

Plaintiff complied with all conditions contained in the document, signed

and started making the modified payments under the belief she received the

modification as represented by defendant’s representative on the telephone.

Defendant HomEq accepted and cashed plaintiff’s payments of $3,027.02

through on or about April 1, 2009.

Ms. Galope noticed that the description of her modified terms stopped at

March 1, 2013. Paragraph 1(d) at the bottom of page one of the agreement did

not pick up again at page 2. It simply read:

1.NOTE MODIFICATIONS:

…

“d. The period in which Borrower’s monthly principal and

interest payment will consist of interest only is extended until

04/01/2013 (the “Interest Only Period”). Upon expiration of the

Interest Only Period, Borrower’s monthly principal and interest

payment will be increased to an”

At that point it just stopped in mid-sentence. When she flipped the

modification agreement to begin reading the top of the next page, the

modification agreement continued with:


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3. RELEASE:

Borrower releases HomEq, its subsidiaries, affiliates, agents,

officers and employees, from any and all claims, damages or

liabilities of any kind existing on the date of this Agreement, which

are in any way connected with the origination and/or servicing of

the Loan, and/or events which resulted in Borrower entering into

this Agreement.

Plaintiff was shocked and concerned that her modification payments may

change on April 1, 2013 contrary to what she was promised in her phone

conversations with Taheera Franklin.

The fax was misleading in that it stopped at “1.d” and then the next page

started at “3” making it appear that a page was missing from the fax transmission

that contained the missing terms of 1.d and 2 as originally represented by

Taheera Franklin over the telephone.

After litigation, defendant represented the entire document was merely

faxed by defendant without warning that the fax transmission actually

contained 2 legal size papers sandwiched between 2 letter size pages in such a

way that the least sophisticated consumer would not immediately realize that

material terms were missing from the consumer’s version of the contract.

Letter size paper is the customary size paper used for faxes.

Defendant apparently placed the material terms of the loan on the bottom

three inches of the legal size document that were cut off through the fax

transmission when it was printed out on letter size paper.


13

Plaintiff telephoned HomEq to find out the missing terms and she was

directed to and communicated with Taheera Franklin.

Taheera Franklin never disclosed the terms or explained to plaintiff that

the 2 pages in the middle of the document were legal size documents that

contained additional writing that would be omitted if plaintiff had printed out the

document on letter size paper. (ER 55-57; 119-121; 2070-2101)

Knowing what Ms. Galope was required to pay back per month after April

1, 2013 on her loan was material to the agreement.

Taheera Franklin continued to orally represent to plaintiff that the more

favorable terms as discussed previously were part of the document but failed to

fax or mail over the entire verbiage of the agreement that was contained on the

two legal size pieces of paper.

Plaintiff followed up with several more phone calls and the same answer

was given, nothing more and nothing less.

Then one day she was told by Taheera Franklin that the rates could go up

or down, but nothing more.

Ms. Galope, still not comprehending the scam, continued making her

payments but became concerned and hired an attorney Mr. Laverty for $5,600.00

in an attempt to resolve this issue. However, these scams were not known in

2009 or discoverable. (ER 55-57; 119-121)


14

Defendant responded by causing a Notice of Default to be recorded on the

Premises on July 31, 2009. (ER 67, 124-126, 209-211, 145, 181)

Plaintiff then sought bankruptcy protection in the hopes to work out this

dispute on or about January 15, 2010.

By this time defendant Barclays Capital Real Estate Inc. d/b/a HomEq

Servicing had employed defendant Ocwen Loan Servicing, LLC to service

plaintiff’s loan.

The notice of default was rescinded and another notice of default was

thereafter recorded on March 8, 2011 by defendant Western Progressive, LLC on

behalf of beneficiary Deutsche Bank National Trust Company, as trustee under

pooling and servicing agreement dated as of May 1, 2007 securitized asset-

backed receivables LLC Trust 2007-BR4 Mortgage Passthrough Certificates,

Series 2007-BR4 (aka “DBNTC”). (ER 145, 181)

Defendant Ocwen requested Defendant Western Progressive, LLC on

behalf of DBNTC to record the Notice of Default.

So, Plaintiff sought bankruptcy protection in July 2011 under Chapter 13.

Defendant Ocwen requested Courtesy Notice of all filed documents

electronically shortly after Ms. Galope filed for bankruptcy protection. (ER

1998-2030)


15

Western Progressive, LLC was working on the explicit instruction of

defendant Ocwen during this time period.

Although the Premises was protected from foreclosure sale by an

automatic stay, and defendant Ocwen knew that the stay was in place, defendant

Ocwen instructed defendant WESTERN PROGRESSIVE, LLC to transfer the

property out of plaintiff’s name on September 1, 2011 and recorded a trustee’s

deed upon sale in favor of defendant DBNTC on September 8, 2011 at the Los

Angeles County Recorder’s Office divesting plaintiff of her property interest to

the Premises. (ER 1989-2065, 193-194, 154-155, 236, 341)

Plaintiff immediately informed defendants OCWEN, WESTERN

PROGRESSIVE, LLC and DBNTC that there was an automatic stay pursuant to

11 USC §362 forbidding the transfer of her property on September 1, 2011.

Plaintiff also demanded the defendants rescind the transfer and to restore

title to the property back in plaintiff’s name. (ER 55-57; 119-121)

But defendants OCWEN, WESTERN PROGRESSIVE, LLC and

defendant DBNTC failed and refused to rescind the TDUS up to and including

the date that this action was commenced. (ER 345-346)

During this time, plaintiff had no knowledge that her interest rate

payments were being fixed by a manipulated LIBOR rate between Submitters

and Swap Traders and Barclays.


16

On June 27, 2012 a press release from the U.S. Dept. of Justice announced

“Barclays Bank PLC Admits Misconduct Related to Submissions for the London

Interbank Offered Rate and the Euro Interbank Offered Rate and Agrees to Pay

$160 Million Penalty.” (ER 382-383, 389-409, 385-387, 411-454, 455-472,

2035, 2039, 2037, 2032-33, 1998-2030)

LIBOR is an acronym for the London Interbank Offered Rate.

At the same time, the Commodity Futures Trading Commission in the

Matter of Barclays PLC, Barclays Bank PLC and Barclays Capital Inc., CFTC

Docket No. 12-25 issued an Order Instituting Proceedings Pursuant to Section

6(c) and 6(d) of the Commodity Exchange Act, as Amended, Making Findings

and Imposing Remedial Sanctions.

Barclays Bank PLC was the administrator of the Sponsor to the trust;

Barclays Bank PLC wholly owned the depositor of the MBS trust; and the Swap

and Cap Provider of the MBS trust. (ER1716 et seq FWP)

A substantial number of the borrowers in the trust had LIBOR loans.

(ER1391-1714)

As a result, defendants’ conduct has harmed those with loans based on the

LIBOR market rate, those whose loans were placed in a trust that contained a

substantial number of LIBOR type loans in the pool, those loans where Barclay’s


17

was the Swap Trader and/or Servicer based on the fact that they had the power

and control to manipulate the payments required under the loan’s terms.

Then to confuse matters even more, Plaintiff’s Note made to New Century

was never endorsed by them. Instead there was one lone Allonge with a purported

endorsement from “Sutton Funding, LLC” as assignee to DBNTC. (ER 2070-

2101)

Sutton Funding, LLC had no standing to endorse the Note. It became clear

that none of these defendants had standing to foreclose based on nonpayment of

the Note.

VI. SUMMARY OF ARGUMENT

This is a homeowner’s rights case. Homeowner’s rights have become a

primary national and state concern. On July 11, 2012 California passed and the

Governor signed Senate Bill 900 into law. Part of the preamble states:

The people of the State of California do enact as follows:

SECTION 1. The Legislature finds and declares all of the following:

(a) California is still reeling from the economic impacts of a wave of

residential property foreclosures that began in 2007. From 2007 to

2011 alone, there were over 900,000 completed foreclosure sales. In

2011, 38 of the top 100 hardest hit ZIP Codes in the nation were in

California, and the current wave of foreclosures continues apace. All

of this foreclosure activity has adversely affected property values

and resulted in less money for schools, public safety, and other

public services. In addition, according to the Urban Institute, every

foreclosure imposes significant costs on local governments, including

an estimated nineteen thousand two hundred twenty-nine dollars


18

($19,229) in local government costs. And the foreclosure crisis is not

over; there remain more than two million “underwater” mortgages in

California.

(b) It is essential to the economic health of this state to mitigate the

negative effects on the state and local economies and the housing

market that are the result of continued foreclosures by modifying the

foreclosure process to ensure that borrowers who may qualify for a

foreclosure alternative are considered for, and have a meaningful

opportunity to obtain, available loss mitigation options. These changes

to the state’s foreclosure process are essential to ensure that the

current crisis is not worsened by unnecessarily adding foreclosed

properties to the market when an alternative to foreclosure may be

available. [Bold Added]

Plaintiff alleged she lost and continues to be on the precipice of losing her

home on the grounds that these Defendants were manipulating the entire market’s

LIBOR rate while creating and servicing these Interest Only Adjustable Rate

Mortgages based on LIBOR that were then controlled by the Defendants in the

mortgage backed securities such loans were transferred into.

Ms. Galope, like many other similarly situated consumers were placed in

predatory loans and were reassured they would be able to refinance the loan before

the loan they were in was going to reset and become unaffordable. So Ms. Galope

rationally expected to refinance her loan in six months after obtaining the 8.775%

interest loan to a more affordable product which was rationally based because the

LIBOR rate was lower than what she was currently paying. By 2006 this had

become a custom in the industry to do so.[ER 355, 3253, 3256]


19

Ms. Galope’s consumer expectation (under the economic rational

expectation theory) was not based on the true market rate as consumers were

experiencing in 2006; rather the Plaintiff/appellant’s consumer expectations of

continued lowered market rates were based on Defendants direct or indirect

manipulation of the LIBOR rate, which a substantial portion of residential

financing in the United States was based upon.

As a consequence, Ms. Galope was stuck in a bad loan, and like quicksand,

started to struggle as the housing and financial sector suddenly imploded. This

consumer expectation was created by the Defendant’s own mortgage product and

manipulation of the LIBOR rate - a fact not discoverable until June 27, 2012.

Although, the housing foreclosure crisis was a commonly known fact by the

time this case was filed in March 2012, the district court did not believe the

Defendants conduct could cause any harm to the Plaintiff or those similarly

situated.

Plaintiff appeals on her behalf, and on all others similarly situated,

requesting that this court reverse the district court’s summary judgment and its

dismissal.

VII. STANDARD OF REVIEW

Dismissal for failure to state claim under FRCP 12(b)(6) is reviewed de

novo. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1069 (9th Cir. 2011). The


20

Court must accept Appellant’s allegations of material facts as true, and construe

them in the light most favorable to Appellants. Id.

A district court’s decision to grant, partially grant, or deny summary

judgment or a summary adjudication motion is reviewed de novo. See, e.g., Szajer

v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011); Universal Health Servs.,

Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004).

Summary judgment is not proper if material factual issues exist for trial. See

Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003).

On review, the appellate court must determine, viewing the evidence in the

light most favorable to the nonmoving party, whether there are any genuine issues

of material fact and whether the district court correctly applied the relevant

substantive law. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th

Cir. 2004). The court must not weigh the evidence or determine the truth of the

matter but only determine whether there is a genuine issue for trial. See Balint v.

Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999).

The abuse of discretion standard is used for denying a motion for leave to

amend. Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010). Dismissal without

leave to amend is improper unless it is clear that the Complaint could not be saved

by any amendment. Harris v. Amgen, Inc., 573 F.3d 728, 736 (9th Cir. 2009).

VIII. ARGUMENT


21

A. This Case Cannot Be Mooted Through Involuntary Settlements

The District court dismissed every cause of action by way of a Motion to

Dismiss or Summary Judgment on the same grounds: that plaintiff purportedly was

not harmed by any of the Defendant’s conduct so she lacked standing.

Prior to filing suit, these same defendants took title to plaintiff’s home by

conducting an unlawful foreclosure sale. Plus, they refused to give title back even

when faced with the fact that they took it unlawfully.

After plaintiff filed this lawsuit on March 1, 2012 which followed the next

year, Defendant decided to miraculously rescind the trustee’s deed on March 23,

2012 and then alleged Galope cannot pursue her claims because Defendants

rescinded the trustees deed upon sale so she no longer has standing. The court in

Wallace v Geico General Ins, Co, 183 CalApp4th 1390, 1401 (2010) explained

“We see no indication in the history of Proposition 64...that the voters amended

section 17204 with the intent of allowing defendants in class actions brought under

section 17200 et seq to defeat class status by forcing an involuntary settlement.”

What mattered was that Wallace had standing when the suit was filed.

Here, Galope had standing when the suit was filed. Defendants held title

from September 2011 through March 2012. They clouded her title, tied up her

property, caused emotional distress and forced her to wage an all-out litigation war


22

in order to make them do the lawful thing they were supposed to do in the first

place.

[T]o satisfy Article III's standing requirements, a plaintiff must show

(1) it has suffered an 'injury in fact' that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action

of the defendant; and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision." Friends of

the Earth, Inc., v. Laidlaw Ent'l Serv., Inc, 528 U.S. 167, 180-81, 120

S. Ct. 693, 145 L. Ed. 2d 610 (2000) Maya v. Centex Corp., 658

F.3d 1060 (9th

Cir. 2011)

Wrongfully taking title to real property from September 1, 2011 through

March 27, 2012 caused sufficient harm for wrongful foreclosure, and a violation

under the UCL as being an unfair practice.

Moreover, without future declaratory relief, there is a threatened harm, the

defendants will wrongfully take title to the property again.

The Defendants refusal to provide the missing material terms to the

modification or even record, was a substantial factor leading to the default.

Additionally, but for the LIBOR defendants’ practice of manipulating the

LIBOR rate while simultaneously creating bad loan packages with the promise that

the borrower would be able to refinance six months later to a lower rate (and

giving them a rational basis for believing that to be true), Ms. Galope would not

have been facing foreclosure in the first place.


23

There is a concrete injury that can be directly traced to the defendants that

could be legally redressed. Thus, plaintiff had standing under Article III.

The court erred, when it summarily concluded Ms. Galope was not injured.

Losing one’s home is a substantial injury that causes substantial injury from

humiliation, depression, fear, anxiety, and family strife, to destabilization of their

own socioeconomic status, their workplace, health and general welfare in addition

to shelter and losing something that is unique and irreplaceable.

This brief should end here, and the judgments should be reversed, but in an

abundance of caution, appellant will address each of the causes of action in their

context.

B. Price Fixing under section 1 of the Sherman Antitrust Act

Plaintiff alleged that defendants injured her due to their manipulation of the

LIBOR rate, of which her residential loan secured by a deed of trust attached to her

home was based on.

The district court summarized the material facts well. Her cause of action for

violation of section 1 of the Sherman Antitrust Act was based on allegations that

Defendants conspired to fix, raise, and stabilize the LIBOR rate from 2006 through

2009, as well as the rate at which Defendants would sell mortgages incorporating

the LIBOR. As a result of this alleged conduct, Ms. Galope contended that she

“has been injured in her business or property in that she has been forced to pay


24

interest on her long term investment of 30 years for the purchase of her home

based on the LIBOR rate fixed by defendants and their coconspirators which was

substantially higher than what she would have paid in the absence of the

violations.” Ms. Galope also alleged that “she has lost/or is losing her property due

to the effect of” the LIBOR manipulation on the value of the Subject Property.

1. Plaintiff Had Standing To Bring This Claim

Galope is alleging price fixing by Deutsche Bank, Barclays and others.

Galope’s case is one of price fixing based on LIBOR manipulation which has

already been admitted to by Barclays and by Deutsche Bank. Such agreements are

considered illegal, per se. U.S. v Socony-Vacuum Oil Co. Inc., 310 US 150 (1940).

Agreements to fix prices in interstate commerce are unlawful per se under

the Sherman Act, and no showing of so-called competitive abuses or evils which

the agreements were designed to eliminate or alleviate may be interposed as a

defense. U.S. v Socony-Vacuum Oil Co. Inc., 310 US 150, 210, 218 (1940).

The court held Plaintiff did not have standing.

“[T]o plead [antitrust standing], plaintiffs must allege facts that if taken as

true would allow them to recover for "an injury of the type the antitrust laws were

intended to prevent and that flows from that which makes defendants' acts

unlawful." Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1102 (9th

Cir. 1999)


25

Here, plaintiff lost the opportunity to obtain financing of her home based on

an independent market rate. Such agreements have been “conclusively presumed

to be unreasonable and therefore illegal without elaborate inquiry as to the precise

harm they have caused or the business excuse for their use” because of “their

pernicious effect on competition and lack of any redeeming virtue.” Northern

Pacific Ry. v. U.S., 356 US 1, 5 (1958).

Nevertheless, the district court granted defendant’s motion to dismiss

without leave to amend on the grounds “Ms. Galope could not have suffered harm

based on manipulation of the LIBOR because her interest rate was never affected

by the LIBOR.” (ER 13) [emphasis added]

This was based on the grounds Ms. Galope’s note was an adjustable rate

with an initial fixed rate of 8.75% until January 1, 2009 so it was not, in the court’s

mind, affected by the manipulation of the LIBOR rate.

2. Plaintiff’s Consumer Expectations Were not Taken Into Account

The court wholly ignored that Ms. Galope was affected because she was the

direct purchaser of a LIBOR loan product. Whether or not the Plaintiff was a direct

purchaser of the product that was being price fixed is the proper test. Injury to Ms.

Galope was foreseeable, clearly within the target area and passes the direct injury

test.


26

The district court’s reasoning on the attack of lack of standing as to Ms.

Galope is similar to the reasoning of the district court in Freeman v San Diego

Ass’n of Realtors, 322 F.3d 1133 (9th

Cir. 2011). The Ninth Circuit reversed the

district court’s ruling in Freeman, and it should exercise the same discretion to

reverse the district court’s decision in this case, too.

In Freeman, this circuit explained the flaw in the logic through an analogy

that is apt to this case: “[i]f Elle Woods pays someone to walk her dog, she's the

buyer and the dog-walker is the seller, even though Bruiser gets the exercise. And

if the Cambridge dog-walking cartel starts fixing prices, it's hardly a defense for

them to say "We just walk dogs!"” Freeman, Id at 1144-45.

Ms. Galope, like many other similarly situated consumers, expected to

refinance her loan in six months after obtaining the 8.775% interest loan in the first

place. By 2006 this had become a custom in the industry to do so.

3. The Consumer Expectation Test is Widely Used

Ms. Galope’s consumer expectation was not based on the true market rate as

consumers were experiencing in 2006; rather the Plaintiff/appellant’s consumer

expectations of continued lowered market rates were based on Defendants direct or

indirect manipulation of the LIBOR rate, which a substantial portion of residential

financing in the United States was based upon.


27

As a consequence, Ms. Galope became stuck in a bad loan, and like

quicksand, started to struggle as the housing and financial sector crumbled. The

rose colored glasses of consumer expectation was created by the Defendant’s own

manipulation and the district court’s summary dismissal of this claim at the motion

to dismiss stage on the first opportunity when the Defendants and claims were

added to the complaint was an error that should be reversed.

The use of a consumer’s expectations in one form or another has been

widely recognized in the law. For example, in products liability law, California

courts have historically applied a consumer’s expectations test, liberally in cases

involving novel factual circumstances or somewhat esoteric scientific issues. See,

e.g., Akers v. Kelley Co., 173 Cal. App. 3d 633, 650-52 (Cal. Ct. App. 1985); West

v. Johnson & Johnson, 174 Cal. App. 3d 831, 867 (Cal. Ct. App. 1985).

4. The Rational Expectation Theory Is Also Used

In economics, there is a similar theory called “rational expectations theory.”

It is an economic idea that people in the economy will make choices based on their

rational outlook, available information and past experience. The theory suggests

that current expectations in the economy are equivalent to what the future state of

the economy will be.

This theory has been used in several scenarios when looking at the

defendant’s behavior in Robinson Patterson types of price discrimination schemes.


28

(See, Bailey v. Allgas, Inc., 284 F.3d 1237 (11th

Cir. 2002); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538

(1986); See, Delmarva Health Plan v. Aceto, 750 A.2d 1213 (Del. Ct of Chanc.

1999) where the court stated “the reasonable expectations of the insured 'so far as

its language will permit.”; Morgan v. Ponder, 892 F.2d 1355, 1362-63 n.17 (8th

Cir. 1989). reasonable expectation of recouping any losses from predatory pricing.;

A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1403 (7th Cir.

1989) (the rational expectation of later realizing monopoly profits), cert. denied,

494 U.S. 1019, 108 L. Ed. 2d 501, 110 S. Ct. 1326 (1990). Sterling Nat'l Mortg.

Co. v. Mortgage Corner, 97 F.3d 39 (3rd

Cir. 1996) ; and 3A Arthur L. Corbin,

Corbin on Contracts § 654A(B) at 89 (Supp. 1994).

Here, even flipped the other way, the financial institutions like Barclays and

DBNTC have gained power, profits, and market share throughout this period of

time and they had a reasonable expectation of doing so because the MBS trusts

were set up that way. (Here, Barclays bet against the trust and was the SWAP and

CAP provider).

There was no reason to neglect Ms. Galope’s consumer’s expectations when

she purchased her loan in 2006, to determine if she had standing under the price

fixing scheme that is now before this court.


29

Ms. Galope expected she was receiving a loan based on a rate that was not

being manipulated by the market actors such as DBNTC and Barclays.

Ms. Galope’s expectations were that she could obtain a more favorable loan

rate after being in this loan for six months, based on her past experiences with her

broker and that the new loan interest rate would be more favorable and there was

some evidence of that in the record.1 The failure to meet her consumer

expectations in this case led to the ultimate threatened loss of her property – her

home.

As such, when Ms. Galope contended that she “has been injured in her

business or property in that she has been forced to pay interest on her long term

investment of 30 years for the purchase of her home based on the LIBOR rate fixed

by defendants and their coconspirators which was substantially higher than what

she would have paid in the absence of the violations.” (TAC ¶ 131.) There was

support for that allegation in the record making the allegation plausible.

1 Furthermore, as can be seen, financial competitors in line with Defendants

imploded making these large financial institutions even larger during this same

period of time. This is not, as suggested by some, a case where the consumers

benefited from the manipulation of the LIBOR rate.


30

Additionally, both expert Mr. Matz and Helen Galope declared that she

would not enter into the loan based on LIBOR if she knew LIBOR was being

manipulated. (ER 2066-2101)

5. Article III Standing Was Met In This Case

The court never discussed the complexities of the Antitrust law itself or

made any ruling in that regard, it summarily dismissed the claim on its first round

of pleading, without leave to amend on the basis that standing under Article did not

exist based, in part on Lujan v Defenders of Wildlife 504 U.S. 555.

Lujan v Defenders of Wildlife 504 U.S. 555 explains that “[a]t the pleading

stage, general factual allegations of injury resulting from the defendant's conduct

may suffice, for on a motion to dismiss we "presum[e] that general allegations

embrace those specific facts that are necessary to support the claim." Lujan at 561.

This consumer expectation of being able to refinance at a lower rate was

based on the general behavior of the market where the interests were staying in an

artificially depressed state. No one knew at the time that the interest rates were

going down due to the artificial suppression of the rate by the defendants.

6. Plaintiff Was A Purchaser of the Price Fixed Product So She Met the

Direct Injury Test

There are two direct injury groups in antitrust price fixing litigation which

virtually always pass the standing test: (1) consumers/customers, and (2) the


31

violators competitors. Ms. Galope falls squarely in the first category because she

was defendants’ customer who bought a Note based on LIBOR that was placed in

a pool manipulated by LIBOR and by those who could manipulate LIBOR. This

made Ms. Galope a direct purchaser.

The “target area” test was first discussed by the Ninth Circuit in Studio

Unions v Loews, Inc. 193 F2d 51, 54-55 (9th

Cir 1951), cert denied, 342 US 919,

72 SCt 367 (1952). The “target area” test only requires the plaintiff to show that

he is within that area of the economy which is endangered by a breakdown of

competitive conditions in a particular industry. The test gives a strong preference

to customers/consumers who are injured like Ms. Galope.

7. Plaintiff Had a LIBOR Loan So Her 30 Year Debt Was Tied to

LIBOR

The court argued there was no harm because Plaintiff’s loan “payments” she

made was not “tied” to the LIBOR rate. Her “debt” she purchased and owed was

tied to LIBOR. Ms. Galope fell squarely within the target area of the economy

because she was left with being tied to a home that was doomed to lose all of its

“equity” due to the timing of her refinancing and encouraged consumers like

Galope to refinance their homes without concern of the terms to the extent, the

consumers were led to believe that they could refinance at a more favorable rate

later from, in substantial part, the manipulation of LIBOR.


32

In 1982, the United States Supreme Court broadened the test to one of

“foreseeability” in the case of Blue Shield v McCready, 477 US 465, 107 SCt 2540

(1982). The Ninth Circuit follows this broader approach when looking at direct

purchasers. Crayton v. Concord EFS, Inc. (In re ATM Fee Antitrust Litig.), 686

F.3d 741 (9th

Cir. 2012) (Direct purchasers have standing to sue. Here, the court

affirmed lack of standing of an indirect consumer on other grounds)

The district court focused on its belief that Plaintiff was not harmed on the

grounds that her loan was written in a way where she initially paid an initial fixed

rate. Whatever amount plaintiff was required to initially pay, did not change the

fact that the actual debt plaintiff owed was based on LIBOR. It also ignores the

consumer expectation part of the analysis.

Furthermore, her investment was long term. She purchased a 30 year

Interest Only Adjustable Rate Mortgage LIBOR Note in December 2005 that was

not due to expire until January 2036. The Supreme Court has recognized parties

who are locked into a transaction may be especially vulnerable to the impacts of

anticompetitive behavior as they have no opportunity (or only a costly opportunity)

to change the transaction’s terms. See Eastman Kodak Co. v. Image Technical

Servs., Inc., 504 U.S. 451, 477 (1992) .

Plaintiff’s “submissions present dispositive more than the mere "general

averments" and "conclusory allegations" found inadequate in Lujan v. National


33

Wildlife Federation, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177, or the

"'someday' intentions" to visit endangered species halfway around the world held

insufficient in Defenders of Wildlife. 504 U.S. at 564. Pp. 9-13.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,120 S. Ct. 693, 145

L. Ed. 2d 610 (2000).

8. Plaintiff Rationally Expected to Refinance to A Lower Rate at a

Later Time So She Purchased the Loan

In Zenith Radio Corp. v. Hazeltine Research, Inc., the Supreme Court

explained, "[Plaintiff's] burden of proving the fact of damage . . . is satisfied by its

proof of some damage flowing from the unlawful conspiracy; inquiry beyond this

minimum point goes only to the amount and not the fact of damage." 395 U.S. 100,

114 n.9, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). See also In re Catfish Antitrust

Litigation, 908 F. Supp. 400, 410 (N.D. Miss. ("An adequate showing of the

amount of damages is not necessarily required for the plaintiffs to survive the

defendants' motions for summary judgment [in an antitrust action].")

Here, we have evidence that this single mortgage backed securitized trust

housed almost 5,072 loans, meaning 5,072 similarly situated borrowers where over

half were LIBOR rate loans like Plaintiff’s loan in this case.

In 2008 the entire housing market and financial industry crashed. As a result,

Congress passed sweeping legislation under the Emergency Economic Stability


34

Act of 2008 granting money to a vast majority of financial institutions because

they were “too big to fail” and a foreclosure crisis that was looming to be

prevented.

However, as recent history teaches us, these large financial institutions only

became larger and California became one of the “hardest hit” states with over x

homes in foreclosure.

Over 3,000,000 (three-million) homes have been foreclosed upon in the

United States since this crisis started - and it is not over yet.

In this case, according to Jay Peterson’s study no loans were modified before

2010 from this mortgage backed securitized trust in order to try to sustain

homeownership and there are less than 2,000 left in it. (ER 2114-2120)

Like Plaintiff, refinancing was not available to those similarly situated as

anticipated when they accepted refinancing because it was based on the false belief

that their home equity was going up as the interest rate was falling and was going

to continue to fall. (ER2066-69)

Even if Galope may be unable to quantify any damages it incurred, it would

not deprive her of standing, because she may seek nominal damages. See Dry

Cleaning & Laundry Institute of Detroit, Inc. v. Flom's Corp., 841 F. Supp. 212,

215 (E.D. Mich. 1993), and U.S. Football League v. National Football League,

842 F.2d 1335, 1376-70 (2d Cir. 1988).


35

9. Plaintiff Had Standing to Obtain An Injunction

Finally, Plaintiff has an additional basis for standing because, in addition to

damages, she seeks to enjoin Defendants from engaging in continued price

collusion.

The alleged conspiracy by the defendants to manipulate LIBOR was

pervasive, continuing from about 2005 to 2009. Evidence indicates that Barclays

and DBNTC employees at the highest levels operated as ringleaders, orchestrating

meetings and communicating globally with fellow conspirators to exchange critical

price and business information.

A settlement with the government resulted from this conduct, but that does

not mean that such collusion cannot continue in the future.

"[T]he possibility of future injury may be sufficient to confer standing on

plaintiffs; threatened injury constitutes 'injury in fact.'" Central Delta Water

Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002) "The Supreme Court

has consistently recognized that threatened rather than actual injury can satisfy

Article III standing requirements." Id.

The financial market that measures the current index of monetary supply

remains concentrated, and has continued to consolidate, while barriers to entry for

new competitor in this financial arena remain high. LIBOR has not dissipated, it is

firmly entrenched in the marketplace and there is no evidence to suggest that


36

Defendants will not continue to maintain their relationships. These factors can

contribute to collusion.

In addition, Plaintiff produced significant evidence of Defendants' collusive

conduct as presented by the government in the settlement. "[W]here the defendants

have repeatedly engaged in the injurious acts in the past, there is a sufficient

possibility that they will engage in them in the near future to satisfy the 'realistic

repetition' requirement." Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001).

Plaintiff is tied to a 30-year LIBOR loan with these defendants who were

manipulating LIBOR. If she walks away from the loan, she loses her home.

Losing a home is irreparable harm. Sundance Land Corp. v. Community

First Fed'l Sav. & Loan Ass'n, 840 F.2d 653, 661 (9th Cir. 1988).

Plaintiff is at a greater risk of future injury than the plaintiffs in Lujan v.

Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)

where the threatened harm to the plaintiffs in Lujan was attenuated, based on past

trips to foreign countries to observe endangered species, without present plans to

return. 504 U.S. at 558-59.

In this case, the perspective of damages arising from the LIBOR rate

manipulation scandal is that of homeowners who made a loan with the Defendant’s

agent who then deposited that loan with the Defendant’s subsidiary into a

mortgage backed security that the Defendant controlled and bet against while they


37

manipulated the LIBOR market rate which artificially suppressed the rate making

it appear to consumers that refinancing in the near future at a lower rate was

possible and thus entering into the market for a long term loan like a mortgage

was a more acceptable risk, even if the loan interest rate term was not as low as the

person anticipated paying over the life of the loan. This would fit the Royal

Printing Co. v Kimberly-Clark Corp., 621 F.2d 323 (9th

Cir. 1980) exception to the

Illinois Brick rule where standing is granted when a direct purchaser

As a complimentary corollary, consumers expect that interest rates that rise

constricts the money supply and the price of home stabilizes. As interest rates fall,

the price of the home can raise. Consequently, they expected that their equity

would continue to climb as the interest rates fell. However, the true market rate

was suppressed so the true equity in their home was being artificially inflated and

then, in 2008 the housing market “crashed” which was a true adjustment of the

market rate and home equity bringing all homes magically underwater and without

equity.

Without the anticipated equity, Ms. Galope’s home value fell to almost half

leaving her ‘underwater.’ She could not refinance the home loan because there was

no longer any equity in it. Ms. Galope and those similarly situated, were injured as

a result as they started going into default and could not cure it.


38

Although the market rate manipulation was not the sole factor in this injury,

it was a substantial factor in causing Ms. Galope and those similarly situated harm.

The district court should have found that Plaintiff has shown a threat of future

injury enough to pass a motion to dismiss. The presumption of class-wide impact

from price-fixing activities, and the availability of nominal damages, this was

sufficient to provide Plaintiff with standing to pursue her case on the merits.

Accordingly, this court should reverse dismissal of this claim.

C. 17200 As to the LIBOR Manipulation

The district dismissed this cause of action finding there was no standing.

Motions to dismiss are supposed to rarely defeat a Cal. Bus. & Prof. Code

§17200 claim on the grounds that the complaint is supposed to be construed to

uphold the action whenever possible. Motors, Inc. v Times-Mirror Co., 102

CalApp3d, 735, 741-742 (1980); Southwest Marine, Inc. v Triple A Machine Shop,

Inc., 720 F.Supp. 805 808 (ND Cal 1989). California's unfair competition law

prohibits "any unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising." (Cal. Bus. & Prof. Code § 17200.)

And under this law, a practice can be prohibited as unfair or deceptive even if not

unlawful, and vice versa. (Cel-Tech Communications, Inc. v. Los Angeles Cellular

Tel. Co., 20 Cal. 4th 163 (1999).) For example, a plaintiff's allegations that a

defendant used incomplete and misleading illustrations to sell universal life


39

insurance policies may be actionable under the unfair competition law absent any

claim that such conduct violated any regulation or statute. Wilner v. Sunset Life

Ins. Co., 78 Cal. App. 4th 952 (2000). An unlawful business practice can be

"anything that can properly be called a business practice and that at the same time

is forbidden by law." (Summit Tech., Inc. v. High-Line Med. Instruments Co., 933

F. Supp. 918 (C.D. Cal. 1966) This prong of the unfair competition law allows a

plaintiff to enforce a broad array of state and federal statutes, including consumer-

protection statutes (Walker v. Countrywide Home Loans, Inc., 98 Cal. App. 4th

1158 (2002) (Cal. Civ. Code § 2954.4); antidiscrimination statutes (Reese v. Wal-

Mart Stores, Inc., 73 Cal. App. 4th 1225 (1999), (Unruh Civil Rights Act, Cal. Civ.

Code §§ 51-51.4)); criminal statutes (Stop Youth Addiction, Inc. v. Lucky Stores,

Inc., 17 Cal. 4th 553 (1998), (Cal. Penal Code § 308); and environmental statutes

(Hewlett v. Squaw Valley Ski Corp., 54 Cal. App. 4th 499 (1997), (Cal. Pub. Res.

Code § 4511).)

Injury in fact to have standing to bring this claim was outlined in Kwikset

Corp. v Sup. Court, (2011) 51 Cal 4th 310 where the California Supreme Court

reaffirmed “economic injury from unfair competition may be shown: A plaintiff

may (1) surrender in a transaction more, or acquire in a transaction less, than he or

she otherwise would have; (2) have a present or future property interest

diminished; (3) be deprived of money or property to which he or she has a


40

cognizable claim; or (4) be required to enter into a transaction, costing money or

property, that would otherwise have been unnecessary.” Id. at 323.

Contrary to the court’s conclusion that Plaintiff was not paying on a LIBOR

loan, the Deed of Trust had an Adjustable Rate Rider attached to it that was

captioned as follows:

ADJUSTABLE RATE RIDER

(L1BOR Six-Month Index (As Published In The Wall Street Journal)-Rate

Caps)

2 YEAR RATE LOCKS YEAR INTEREST ONLY PERIOD

(ER 176-179)

1. The Nature of Plaintiff’s Injury; that is, This was the type the

antitrust laws were intended to forestall

Galope is alleging price fixing by Deutsche Bank, Barclays and others.

Galope’s case is one of price fixing based on LIBOR manipulation which has

already been admitted to by Barclays and by Deutsche Bank. Such agreements are

considered illegal, per se. U.S. v Socony-Vacuum Oil Co. Inc., 310 US 150 (1940).

This is exactly the type of injury the antitrust laws were enacted to forestall.

Agreements to fix prices in interstate commerce are unlawful per se under

the Sherman Act, and no showing of so-called competitive abuses or evils which

the agreements were designed to eliminate or alleviate may be interposed as a

defense. U.S. v Socony-Vacuum Oil Co. Inc., 310 US 150, 210, 218 (1940).


41

2. The Injury is Direct

Defendants contend that Galope was not injured by the price fixing. In fact,

they speculate that it would have only helped Galope because it would have

lowered how much she owed because the rate was depressed. Agreements to fix

prices in interstate commerce are unlawful per se under the Sherman Act, and no

showing of so-called competitive abuses or evils which the agreements were

designed to eliminate or alleviate may be interposed as a defense. U.S. v Socony-

Vacuum Oil Co. Inc., 310 US 150, 210, 218 (1940).

3. The Nature of the Harm is not Speculative

Such agreements have been “conclusively presumed to be unreasonable and

therefore illegal without elaborate inquiry as to the precise harm they have caused

or the business excuse for their use” because of “their pernicious effect on

competition and lack of any redeeming virtue.” Northern Pacific Ry. v. U.S., 356

US 1, 5 (1958).

Both Ms. Galope and expert witness William Matz have supplied

declarations that Ms. Galope and those similarly situated would not borrow money

from an entity that could fix the interest rate at which the borrower was required to

pay in the future. (ER 2066-2101)

As explained by the US Supreme Court in U.S. v Socony-Vacuum Oil Co.

Inc., 310 US 150 (1940), “[r]uinous competition, financial disaster, evils of price-


42

cutting, and the like appear throughout our history as ostensible justifications for

price-fixing. If the so-called competitive abuses were to be appraised here, the

reasonableness of prices would necessarily become an issue in every price-fixing

case. In that event, the Sherman Act would soon be emasculated; its philosophy

would be supplanted by one which is wholly alien to a system of free competition;

it would not be the charter of freedom which its framers intended.” U.S. v Socony-

Vacuum Oil Co. Inc., 310 US 150, 222(1940).

Galope’s loan and monthly obligations were not based on an independent

index. The depositor’s administrator, Barclays, who was also the servicer and

Swap trader of her loan was manipulating the price she had to pay on her monthly

obligations by fixing the interest rate.

No one would knowingly enter into a loan in which they knew the lender

could manipulate the rate. (Decl of Matz, Decl of Galope) The fact that the actual

rate may have gone down or up is irrelevant; what matters is that the rate was not

independently determined. (ER 2066-2101)

There were 5,072 loans placed in this trust. LIBOR loans are identified

3,232 times in the Free Writing Prospectus “FWP.” (RJN). (ER 1716-1988)

The CFTC found that Barclays manipulated the LIBOR and as a result

violated Sections 6(c), 6(d) and 9(a)(2) of the Commodity Exchange Act, 7 USC

§§ 9, 13b and 12(a)(2). (ER 1326-1368)


43

7 USC §9 prohibits manipulation of the market.

Unlawful manipulation for purposes of this paragraph shall include,

but not be limited to, delivering, or causing to be delivered for

transmission through the mails or interstate commerce, by any means

of communication whatsoever, a false or misleading or inaccurate

report concerning crop or market information or conditions that affect

or tend to affect the price of any commodity in interstate commerce,

knowing, or acting in reckless disregard of the fact that such report is

false, misleading or inaccurate. 7 USC §9(a)(1)

7 USC §13b makes such conduct a felony:

Barclays repeatedly attempted to manipulate the market and made false,

misleading or knowingly inaccurate submissions concerning LIBOR. (ER 1998-

2030)

“From at least mid-2005 through the fall of 2007, and sporadically thereafter

into 2009, Barclays, through the acts of its swaps traders and submitters, attempted

to manipulate US Dollar LIBOR..” (RJN Ex 7 pg 7-8)

“The swap traders made the requests in person, via email, and through

electronic “chats” over an instant messaging system.” (RJN Ex 7 pg 8)

The swap traders, included internal swap traders and they requested that the

LIBOR be placed higher or lower depending on their position.

DBNTC has admitted that some of its staff was involved in this market

manipulation. (ER 2037, 2039) A defendant need not know that the conduct was

unlawful, but the defendant who has knowledge of the conduct and assists by


44

aiding and abetting can be held liable, such as individual corporate officers or

majority stockholders. People v Toomey, 157 CalApp3d 1 (1985).

There were messages fixing the LIBOR rate during the time period Galope

received her loan as demonstrated by the US DOJ’s office. (RJN).

This is akin to the case of Allied Grape Growers v Bronco Wine Co, 203

CalApp3d 432 (1988) wherein defendant’s practice of downgrading grapes which

occurred over a one-month time period was a “practice” even though it was done

with respect to a single contract, since the contract was with a cooperative having

many members.

Defendant urged the court to find that there was no damage as a result of the

market manipulation. However, as explained above Galope and those similarly

situated were entering into these predatory loans with a consumer expectation of

being able to refinance to a better loan product in the near future because

defendants were artificially manipulating the LIBOR rate where it was artificially

depressed. These predatory products were created by the same Defendants who

were manipulating the LIBOR index. It was done at a profit and is the very essence

of a sophisticated price-fixing scheme.

Moreover, no consumer would knowingly enter into a long term contract

with the other party who has the ability to change the borrower’s interest rate


45

because that interest rate was not based on an independent market, as represented,

but on their own artificial manipulation of it.

Here, the plaintiff was losing her home to foreclosure. A loss or threat of

loss of property is an injury of the type envisioned by Kwikset to sustain the

element of standing.

As such, the court should have found plaintiffs have pled injury and have

standing to sue under the UCL and the court’s decision dismissing this cause of

action should be reversed.

D. FAL Based on LIBOR Manipulation

Again, the court dismissed this cause of action based on the failure to allege

any harm to the plaintiff.

The rule is that advertising that can be interpreted in a misleading way

should be construed against the advertiser. Resort Car Rental System, Inc v FTC,

518 F.2d 962, 964 (9th

Cir. 1975).

Advertising includes a bank’s misquote of interest rates over the telephone

to a potential borrower. It does not have to be put in the public media. Chern v

Bank of America, 15 Cal3d 866, 870 (1976).

Here, the LIBOR rate was advertised in the Wall Street Journal on a regular

basis. Barclays manipulated the LIBOR rate and published it in the Wall Street

Journal.


46

The LIBOR rate is an index that consumer expectations would be based

upon and in this instance consumers expected that the rates were low and they

could obtain more favorable refinancing in the near future.

The Defendants’ misquoted the entire market rate and induced certain

market behavior by consumers, to the Defendants’ profit and the consumer’s

injury.

Ms. Galope, like many other similarly situated consumers, expected to

refinance her loan in six months after obtaining the 8.775% interest loan in the first

place. By 2006 this had become a custom in the industry to do so.

Ms. Galope’s consumer expectation was not based on the true market rate as

consumers were experiencing in 2006; rather the Plaintiff/appellant’s consumer

expectations of continued lowered market rates were based on Defendants direct or

indirect manipulation of the LIBOR rate, which a substantial portion of residential

financing in the United States was based upon. (ER 2066-2101)

As a consequence, Ms. Galope became stuck to a bad loan and like quick

sand started to struggle as the housing and financial sector crumbled.

The rose colored glasses of consumer expectation was created by the

Defendant’s own manipulation and the district court’s summary dismissal of this

claim at the motion to dismiss stage on the first opportunity when the Defendants

and claims were added to the complaint was an error that should be reversed.


47

E. Wrongful Foreclosure

The elements of a common-law cause of action for damages for wrongful

foreclosure are: (1) Trustee or mortgagee caused an illegal, fraudulent or willfully

oppressive sale of real property; (2) pursuant to a power of sale contained in a

mortgage or deed of trust; and (3) the Trustor or mortgagor sustained damages.

(Munger v. Moore (1970) 11 Cal. App. 3d 1, 7; see 4 Witkin, Sum. Of Cal. Law

(10th

ed. 2005) Secured Transactions in Real Property, §168.)

On August 30, 2011 Ocwen Loan Servicing, LLC was notified that an

automatic stay was initiated, prohibiting the transfer of Ms. Galope’s property

outside of the bankruptcy estate. Nevertheless, Ocwen Loan Servicing, LLC,

through its authorized agent, Western Progressive, transferred Ms. Galope’s

property to DBNTC in violation of 11 USC §362 on September 1, 2011.

Any act taken in violation of an automatic stay in bankruptcy (11 USC §362)

is void. Parker v. Bain, 68 F.3d 1131, 1138 (9th

Cir. 1995). See also, In re

Wardrobe, 559 F3d 932, 934 (9th

Cir. 2009). Consequently, the transfer of

Galope’s property on September 1, 2011 was an illegal sale.

The transfer was made by a nonjudicial foreclosure that was initiated

pursuant to a power of sale provision in Ms. Galope’s deed of trust. Ms. Galope

sustained damages as a result. She was deprived of title to her property for months;

and incurred costs and attorney fees in order to regain title to the property.


48

The District found summary judgment in favor of Defendant on the grounds

there was no injury to Plaintiff.

After the transfer occurred, Helen Galope immediately notified the

defendants of the illegal transfer but they refused to rescind the sale. Defendants

wrongfully retained the title to the property for months. In re Abrams, 127 BR

239, 240-244 (9th

Cir BAP 1991).

The Defendants did not rescind the sale until 23 days after this action was

commenced. As such, plaintiff was forced to incur costs and attorney fees in order

to remedy the violation, causing her damage. Types of damages include costs and

attorney fees, actual damages, and emotional damages due to the violation.

Sternberg v Johnston, 595 F.3d 937, 943 and 946-948 (9th

Cir. 2010)

The district court found that holding title to Plaintiff’s property from

September 1, 2011 through March s, 2012 did not create any harm.

This Court has held that “"actual damages" that may be recovered by an

individual who is injured by a willful violation of the automatic stay, 11 U.S.C.S. §

362(h), include damages for emotional distress.” In so holding, the Ninth Circuit

declined to require a financial loss as a predicate to awarding emotional distress

damages. Dawson v. Wash. Mut. Bank (In re Dawson), 390 F.3d 1139, 1149 (9th

Cir. 2004).


49

Emotional distress can be determined by the circumstances making it

obvious that a reasonable person would suffer significant emotional harm.

Significant harm includes a parent having to cancel her child’s birthday party

because a creditor froze the bank account. Dawson, supra.

This was an obvious cloud on Ms. Galope’s title wherein she lost title to her

residence. She lost her home. This circuit knows this type of situation not only to

be a harm reasonably known to all, but an irreparable one, too. Sundance Land

Corp. v. Community First Fed'l Sav. & Loan Ass'n, 840 F.2d 653, 661 (9th Cir.

1988).

Moreover, Galope declared she incurred expenses and attorney fees in

remedying the stay violation which defendants do not refute. Because Galope has

not been compensated for her damages yet, her claim is not “moot.” In re Davis

177 BR 907, 911-912 (9th

Cir BAP 1995).

1. No Tender Is Required

Finally, Ms. Galope’s wrongful foreclosure cause of action did not require

tender on two grounds (1) the sale was rescinded after this case was filed and (2)

the trustee’s deed upon sale was void and any void sale never requires tender.

Pfeiffer v Countrywide Home Loans, Inc. 211 Cal App4th 1256 (12/13/12)


50

2. The Maker of the Note Did not Transfer the Note to Any

Defendant

Second, Ocwen sent Plaintiff a letter dated February 28, 2011 stating that the

Note it was foreclosing on was enclosed. The Note was made between New

Century Mortgage and Helen Galope. The Note was not endorsed in blank. It

contained an Allonge purportedly specially endorsing the note from “Sutton

Funding, LLC” to Defendant DBNTC.

Since the indorsement was not made from New Century Mortgage, the

attempt to transfer to DBNTC was void under California Commercial Code §3201.

(Cal Comml Code §3201(b) “if an instrument is payable to an identified person,

negotiation requires transfer of possession of the instrument and its indorsement by

the holder.)

3. The Documents Had Indicia of Robo-Signing

Finally, on top of the mystery Allonge without an endorsement in blank, the

records provided by Ocwen were specious at best. The names were cut off; there

were signature lines missing from the documents; and even the recording dates

were blurred beyond legibility.

Stacy appears in many different capacities. She apparently has a LinkedIn

page showing she actually works as a paralegal for Barclays PLC. (ER 1288-90,

1292-93, 1288-1295)


51

Plaintiff’s documents were signed, and had signature blocks cut and pasted

to create documents to initiate and conclude a nonjudicial foreclosure. (ER 161-75,

209-11, 228, 93-94, 131-132, 145).

This type of robo-signing as described above, violated Penal Code §§470,

115, 132, 186.2 as “Criminal profiteering activity” which means any act

committed or attempted or any threat made for financial gain or advantage. As

explained above, the evidence or lack thereof existed to create a genuine issue of

material fact on the basis of fraud.

The court erred in dismissing this cause of action on each of these grounds.

F. Transferring Property in Violation of 11 USC §362 is an Unlawful

Business Practice

Plaintiff alleged it was defendants business practice to ignore automatic stay

provisions and as such, this violated Cal Bus & Prof Code §17200.

It is unlawful to transfer property while there is a bankruptcy stay

prohibiting any transfers. 11 USC §362. Defendants violated 11 USC §362 by

transferring plaintiff’s property while the automatic stay under 11 USC §362 was

in place.

Again, the court did not deny the violation but found no standing on the

grounds the court believed Plaintiff was not harmed.


52

Such recidivism entitled plaintiff to injunctive relief in addition to any

damages, attorneys and costs she may recover under the wrongful foreclosure

claim.

Violations of existing TRO orders are akin to automatic stays and are

actionable claims under the UCL. Defendants claim that the cause is now moot.

Case law is contrary. In Hewlett v. Squaw Valley Ski Corp., 54 Cal.App.4th

499

(1997), the plaintiffs complaint alleged the defendants violated Cal Business &

Professions Code §17200 by cutting down trees in violation of an existing TRO.

The court noted that had the defendants waited just a short time, it could have

lawfully cut the trees down. However, since it did not wait, a viable claim for

violating Cal Business & Professions Code §17200 was made.

Actual damage ares mandatory. In re Ramirez 183 BR 583, 589 (9th Cir BAP

1995). Damages include attorney fees, costs and emotional distress. In re Dawson,

390 F3d 1139, 1149 (9th

Cir 2004). Here, it is uncontroverted that Ms. Galope was

placed in distress over the transfer for nine months – that duration of distress

warrants substantial emotional distress damages. (Decl of Galope)

Third, Defendant cannot moot the claim and pick off the plaintiff by what

would amount to an involuntary settlement. See, Wallace v Geico General Ins. Co.,

183 CalApp4th 1390 (2010). 11 USC §362 specifically provides that a defendant


53

who transfers property during a bankruptcy stay, must pay for all damages caused,

including attorney fees, costs and even punitive damages if warranted.

Punitive damages are warranted here because it took nine months (9 months)

to get the sale rescinded. Johnson v. Ford Motor Company, 35 Cal. 4th

1191

(2005). BMW of North America v. Gore, (1996) 517 U.S. 559 , 134 L. Ed. 2d 585,

123 S. Ct. 1513. “

G. Breach of Good Faith & Fair Dealing

The court found there was no breach of good faith and fair dealing as

to the LIBOR manipulation, the violation of the automatic stay when

invoking the power of sale clause or in faxing over a “modification” missing

material terms which defendant refused to disclose and refused to record it.

The court based its ruling on lack of harm to plaintiff. Carma Developers

(Cal.), Inc. v. Marathon Development California, Inc., 2 Cal.4th 342, 371-

372 (1992).

Every contract imposes upon each party a duty of good faith and fair

dealing in its performance and its enforcement." ' [] The covenant of

good faith finds particular application in situations where one party is

invested with a discretionary power affecting the rights of another.

Such power must be exercised in good faith." (Carma Developers

(Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th

342, 371-372.

1. The Power of Sale Covenant


54

The deed of trust had a power of sale clause in it which allowed Defendant

to use California’s nonjudicial foreclosure process. An implied condition of

allowing Defendant to invoke the Power of Sale in the deed of trust, was that

Defendant would comply with all state and federal laws in the process. Here, the

defendant breached the covenant of good faith and fair dealing selling the home

during the automatic stay as invoked under federal law.

Defendant was on notice of plaintiff’s bankruptcy filing and the

reinstatement of the stay. Nevertheless the defendant took the property by credit

bid on September 1, 2011. Then defendant refused to rescind the sale after

plaintiff demanded it, until defendant was under the eyes of the court and this

lawsuit was filed as a result. Furthermore, the defendant failed to follow state

law which required the defendant to record the rescission of the sale immediately

forthwith. (CCP 2924 et seq) In the context of loan servicing, violation of this

duty frequently relates to the decision to accelerate and foreclose improperly in

one form or another. Erickson v PNC Mortg., 2011 WL 1743875 (D. Nev May 6,

2011).

Consequently, the court’s decision to dismiss should be reversed.

2. Implied Covenant to Disclosure All Material Terms

Second, failing to disclose the material terms of the modification agreement

was a breach of good faith and fair dealing. Wigod v Wells Fargo, 673 F3d 547 (7th


55

Cir. 2012). There was no legitimate reason for Defendant withholding that

information for three years and until litigation was under way.

In Susilo v Wells Fargo Bank, 706 F Supp 2d 1177 (CD Cal 2011) the court

refused to dismiss the claim for breach of good faith and fair dealing when it did

not disclose the payoff amount. Here, Defendants hid the terms of the long term

contract past 2013 and has made inconsistent representations as to what those

terms were (either adjustable or fixed).

Indeed, disclosure of these terms are mandated by federal law. Regulation

Z promulgated by the Federal Reserve Board under the Truth in Lending Act (12

CFR §226 et seq) required defendants to give plaintiff these material terms.

The Deed of Trust expressly stated that the Defendant would follow all

federal laws. It was implied that any modification offered would also comply with

federal law, including Regulation Z.

Regulation Z has been around in one form or another since 1969. The

Federal Reserve Board was given authority to oversee its implementation. When

Congress created this authority, it made clear that it wanted the FRB to engage in

regulations, particularly as to new products and practices that facilitated reverse

redlining and equity-skimming, or evaded restriction of TILA or other consumer

protection legislation. The FRB held hearing and obtained public comment on a

variety of issues relevant to HOEPA in 1997, 2000, 2006 and 2007. In 2001, the


56

FRB issued final changes to Regulation Z but it was not until 2008 that the FRB

used its rulemaking power to address widespread abuses in the mortgage market as

Congress had originally intended. These protections are now supplemented by the

various rules in the Dodd Frank Act. See, 62 Fed. Reg. 23,189 (Apr. 29, 1997);

and see 73 Fed. Reg. 44,522 (July 30, 2008).

Consumers have standing for Article III purposes when they are deprived of

their statutory right to TILA disclosures. DeMando v Morris, 206 F.3d 1300 (9th

Cir. 2000).

Plaintiff informed Defendant for two years that she was missing the terms of

her monthly mortgage payments after 2013 and yet, Defendant refused to resend

the document to her. The failure to adequately communicate the terms to the

borrower was a breach of the implied covenant of good faith and fair dealing.

Finally, entering into a Note knowing that one is manipulating the market

index the note is based upon is a breach of good faith and fair dealing as already

explained earlier in this brief.

These claims should not have been dismissed.

H. Fraud

Plaintiff alleged defendant’s conduct was fraudulent. The elements of fraud

are restated in Jolley v Chase Bank Finance, LLC, (2013, 1st Dist) 2013 Cal.App.

LEXIS 107, *34.


57

The elements of fraud, which give rise to the tort action for

deceit, are (a) misrepresentation; (b) knowledge of falsity; (c) intent to

defraud, i.e., induce reliance; (d) justifiable reliance; and (e) damage.

(Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 93; see also,

Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.). The tort of

negligent misrepresentation, a species of the tort of deceit [citation],

does not require intent to defraud but only the assertion, as a fact, of

that which is not true, by one who has no reasonable ground for

believing it to be true. (Conroy v. Regents of University of California

(2009) 45 Cal.4th 1244, 1255.).

The court found no standing (no harm) and that plaintiff could not plead

because her loan “was not actually tied to LIBOR.”

1. Misrepresentation

Plaintiff alleged Defendants misrepresented the true LIBOR rate from 2006

through 2009. The who, what, where and when were pleaded meeting the

heightened pleading standards for a fraud claim.

2. Knowledge of Falsity

Plaintiff alleged the bank knew these representation that the published

LIBOR were false and misleading and made them knowing they were not true

market indicators. Hence, the element of knowledge of falsity was pleaded.

3. Intent to Defraud or Assertion of Fact of that which is Not True by

one who has No Reasonable Ground for Believing it to Be True

Plaintiff alleged that the bank knew it was going forward with and did go

forward with publishing a manipulated LIBOR rate from 2006 through 2009.


58

The intent to defraud only needs to allege that defendant knew or had no

reason to believe the truth of the statement. Jolley v Chase (2013) 213 Cal. App.

4th 872, *891 This was pled. (FAC ¶215-216). Hence, the element of intent or

assertion of fact was pleaded.

4. Justifiable Reliance

The court does not find any tying of the LIBOR loan to the LIBOR rate on

the grounds there was a fixed rate above the actual LIBOR rate being depressed at

the time.

As asserted previously, Plaintiff entered into the higher loan refinance on the

grounds she had the rational expectation that she could refinance at a better rate on

the grounds the market industry rate of LIBOR was lower. “Except in the rare case

where the undisputed facts leave no room for a reasonable difference of opinion,

the question of whether the plaintiff’s reliance is reasonable is a question of

fact.’”Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.

Plaintiff provided expert witness declaration that this was the consumer

expectation at the time. (ER 2066 et seq)

“[A] defendant cannot escape liability if he or she makes a

representation to one person while intending or having reason to

expect that it will be repeated to and acted upon by the plaintiff (or

someone in the class of persons of which plaintiff is a member). This

is the principle of indirect deception described in section 533 of the

Restatement Second of Torts (section 533). Shapiro v. Sutherland 64

Cal.App.4th 1534, 1548 (1998)


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Hence, the element of justifiable reliance was pleaded with regard to intent to

defraud.

5. Damage

Plaintiff alleged her loan stated it was based on LIBOR, the LIBOR rate was

lower in the six preceding months than her loan rate, and as a result of these

representations, plaintiff was led to believe that her home loan monthly mortgage

payments were based on a LIBOR market interest rate based on market factors

outside of Barclay's control and not by Barclay's manipulation.

Plaintiff alleged she would have never entered into a 30 year adjustable rate

note where the lender could manipulate the interest rate being charged; and that she

took the loan because her last loan was resetting and she believed she could

refinance out of this loan in the next six months.

She was led to believe that she could obtain a more favorable loan in the

next six months because her interest rate of 8.775% was higher than the market

rate. That is rational expectation behavior of a consumer.

The court threw the baby out with the bathwater if it could not understand

consumer behavior where a simple pleading adjustment could have cured the

defect.

Consequently, the court should deny defendant’s motion to dismiss the fraud

cause of action.


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I. Declaratory Relief

Third the district court summarily dismissed the declaratory relief claim.

This claim was predicated on the wrongful foreclosure claim. There is Sutton

Funding, LLC as the only endorser on a Note with New Century as the Lender

purportedly transferring the Note to DBNTC and then DBNTC has stepped into the

chain of title to foreclose. Poseidon Development Inc v. Woodland Lane Estates,

LLC (2007) 152 Cal. App. 4th

1106.

If the wrongful foreclosure claim survives, so too, should the declaratory

relief.

Second, if the “modification” that is not found anywhere in the MBS trust is

deemed to be a contract, then gap filler terms need to be declared because the

terms after 2013 were missing. To allow a defendant to miraculously produce the

missing terms after three years of refusing to disclose them, should not be without

some judicial determination of fairness to the consumer. Pfeiffer v Countrywide

Home Loans, Inc. 211 Cal App4th 1256 (12/13/12)

J. UCL 17200 As to the Modification

The district court summarily dismissed this violation based on lack of

standing. As stated above, injury in fact to have standing to bring this claim was

outlined in Kwikset Corp. v Sup. Court, 51 Cal 4th

310 (2011)


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When one does not receive the benefits, one was promised such as a

permanent modification or some other long term solution to save their home, then

he has suffered economic injury because he did not receive the promised benefits.

See Johnson v General Mills, Inc, 275 FRD 282, 286 (CD Cal 2011). See also,

Boschma v Home Loan Ctr, Inc. 198 CalApp4th 230, 254 (2011).

By refusing to give Plaintiff the material terms of her loan modification that

she sought in order to cure her default, she suffered economic injury because she

did not receive the promised benefits and was thrown in default for demanding the

terms of the modified loan. West v JPMorgan Chase Bank, N.A. (2013) 214

CalApp4th 780.

K. Failure to Give Leave to Amend

Here, the Court put the appellant through a series of Orders to Show Cause.

When plaintiff adequately pled a claim, the court issued an Order to Show Cause

setting a Motion for Summary Judgment right out of the gate. This was not a

garden variety case, but a complex one that deserved the time and discovery in

order to develop the theories before being brought to the gauntlet. There was

nothing specious about this case as can be seen by the various MDL complaints,

time is needed for the economic models to be run. But no time was given to

develop theories. The court erred and if there was a pleading defect or defect in

theory, at the very least, leave should have been given to amend and time for


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discovery to be had. This policy is applied with “extraordinary liberality.” See

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

These violations can be adequately pled and do justify a trial on their merits.

Squires v BAC Home Loans Servicing, No. CV 11-0413-WS-M (SD Ala 11/29/11).

IX. CONCLUSION

Whatever policy that allowed financial institutions such strong legal

protection by the district court; that policy is now archaic and is no longer

consistent with justice or the policy of this state. (See, West v JPMorgan Chase

Bank, N.A. (2013) 214 CalApp4th 780, Jolley v Chase Home Finance (2013) 213

CalApp4th 872, Pfeiffer v Countrywide Home Loans, Inc. (2012) 211 CalApp4th

1250, and Intengan v BAC Home Loans Servicing, 2013 Cal. App. LEXIS 225

(3/22/13)).

We live [] in a world dramatically rocked in the past few years by

lending practices perhaps too much colored by shortsighted self-

interest. We have experienced not only an alarming surge in the

number of bank failures, but the collapse of the housing market, an

avalanche of foreclosures, and related costs borne by all of society.

There is, to be sure, blame enough to go around. And banks are hardly

to be excluded. Jolley at 902.

Appellant requests that this Court reverse the district court’s decision in

dismissing this complaint; finding summary judgment to the defendant; denying

plaintiff’s motion for leave to amend; and award costs thereon.


63

Dated: April 24, 2013 Respectfully Submitted,

LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________

LENORE L. ALBERT, ESQ.

Counsel for Plaintiffs – Appellants, Helen

Galope on behalf of herself and all others

similarly situated


64

STATEMENT OF RELATED CASES

Plaintiffs/Appellants are not aware of the following cases pending in this

Court that would be deemed related pursuant to Ninth Circuit Rule 28-2.6.



/s/ Lenore Albert___________________

LENORE L. ALBERT, ESQ.

Counsel for Plaintiffs – Appellants, Helen

Galope on behalf of herself and all others

similarly situated


65

CERTIFICATE OF WORD COUNT

I certify that this brief complies with enlargement of brief size permitted by

the Ninth Circuit Rule 28-4. The brief’s type size and type face comply with Fed

Rule of Civ Proc 32(a)(5) and (6). This brief has 13,998 words including this

Certificate and excluding the portions exempted by the Federal Rules of Appellate

Procedure 32(a)(7)(B)(iii), if applicable.



/s/ Lenore Albert___________________

LENORE L. ALBERT, Esq.

Counsel for Plaintiffs – Appellants, Helen Galope

On behalf of herself and all others similarly situated


66

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF ORANGE:

I declare that I am over the age of 18 years, and not a party to the within action;

that I am employed in Orange County, California; my business address is 7755

Center Avenue Suite #1100, Huntington Beach, CA 92647.

On April 24, 2013, I served a copy of the following document(s) described as:

APPELLANTS’ OPENING BRIEF on the interested parties in this action as

follows:

See attached Mail List

[ ] BY OVERNIGHT MAIL – I caused such document(s) to be placed in pre-

addressed envelope(s) with postage thereon fully prepaid and sealed, to be

deposited as Express/Priority Mail for next day delivery at Westminster,

California, to the aforementioned addressee(s).

[x] BY CM/ECF – I caused such document(s) to be transmitted to the office(s) of

the addressee(s) listed above by electronic mail at the e-mail address(es) set forth

pursuant to FRCP 5(d)(1).

[ ] BY EMAIL – I caused such document(s) to be transmitted to the office(s) of

the addressee(s) listed above by email at the e-mail address(es) set forth pursuant

to agreement between counsel.

[ ] BY FAX – I caused such document(s) to be transmitted facsimile from the

offices located in Westminster, California this business day to the aforementioned

recipients.

I declare under penalty of perjury under the laws of the State of California

and the United States of America that the foregoing is true and correct.

Dated: April 24, 2013

/s/ Lenore Albert__________________

Lenore Albert


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Mailing List

For Defendant Western Progressive, LLC; Defendant Ocwen Loan Servicing, LLC

and

Defendant Deutsche Bank National Trust Company:

Eric D. Houser, Esq.

Steven S. Son, Esq.

HOUSER & ALLISON

3760 Kilroy Airport Way, Suite 260

Long Beach, CA 90806

Telephone: (949) 679-1111

Fax: (949) 679-1112



For Defendant BARCLAYS BANK, PLC; BARCLAYS CAPITAL REAL

ESTATE INC. d/b/a HOMEQ SERVICING:

Scott H. Jacobs (SBN 81980)

[email protected]

Brandon W. Corbridge (SBN 244934)

[email protected]

Margaret Anne Grignon (SBN 76621)

[email protected]

REED SMITH LLP

355 South Grand Avenue, Suite 2900

Los Angeles, CA 90071-1514

Tel: (213) 457-8000

Fax: (213) 457-8080

James Meadows

[email protected]

Jonathan D. Schiller

[email protected]

Boies, Schiller & Flexner LLP

575 Lexington Avenue, 7th Floor

New York, NY 10022

Tel: (212) 446-2300


68

Fax: (212) 446-2350

David H. Braff

[email protected]

Yvonne S. Quinn

[email protected]

Jeffrey T. Scott

[email protected]

Matthew S. Fitzwater

[email protected]

Adam S. Paris

Parisasullcrom.com

Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Tel: (212) 558-4705

Fax: (212) 558-3588

Hon. Cormac J. Carney

United States District Court

Central District of California

411 W. Fourth Street, #1053

Santa Ana, CA 92701-4518

Attorney General’s Office:

Appellate Coordinator

Office of the Attorney General

Consumer Law Section

300 S. Spring Street



2

AMENDED PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF ORANGE:

I declare that I am over the age of 18 years, and not a party to the within action;

that I am employed in Orange County, California; my business address is 7755

Center Avenue Suite #1100, Huntington Beach, CA 92647. On April 24, 2013, I served a copy of the following document(s) described as:

APPELLANTS’ OPENING BRIEF

on the interested parties in this action as follows:

See attached Mail List

[ x] *BY MAIL – I caused such document(s) to be placed in pre-addressed envelope(s) with postage thereon fully prepaid and sealed, to be deposited as

Express/Priority Mail for next day delivery at Huntington Beach, California, to the

aforementioned addressee(s). [x] **BY CM/ECF – I caused such document(s) to be transmitted to the office(s)

of the addressee(s) listed above by electronic mail at the e-mail address(es) set

forth pursuant to FRCP 5(d)(1).

[ ] BY EMAIL – I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by email at the e-mail address(es) set forth pursuant

to agreement between counsel.

[ ] BY FAX – I caused such document(s) to be transmitted facsimile from the

offices located in Huntington Beach, California this business day to the aforementioned recipients.

I declare under penalty of perjury under the laws of the State of California

and the United States of America that the foregoing is true and correct.

Dated: April 25, 2013

/s/ Lenore Albert__________________ Lenore Albert


3

Mailing List

By ECF:

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under

Pooling and Servicing Agreement dated

as of May 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-

BR4

Defendant - Appellee,

Eric D. Houser, Attorney Email: [email protected]

Direct: 949-679-1111

[COR LD NTC Retained] Houser & Allison, APC

9970 Research Drive

Irvine, CA 92618

Steven Saeyoung Son, Esquire


Direct: 562-256-1675 [COR LD NTC Retained]

Houser & Allison, APC

Firm: 562-256-1675

3780 Kilroy Airport Way Suite 130

Long Beach, CA 90806

WESTERN PROGRESSIVE, LLC


Eric D. Houser, Attorney

Direct: 949-679-1111

[COR LD NTC Retained] (see above)

Steven Saeyoung Son, Esquire Direct: 562-256-1675

[COR LD NTC Retained]

(see above)

BARCLAYS BANK PLC


David Harold Braff

[email protected]



Firm: 212-558-4000

125 Broad Street


4

New York, NY 10004-2498

Brandon W. Corbridge, Esquire

[email protected]


Reed Smith LLP

Suite 2900 355 South Grand Avenue


Matthew Scott Fitzwater, Special Counsel

[email protected]



Firm: 212-558-4000

125 Broad Street New York, NY 10004-2498

Margaret Anne Grignon, Esquire [email protected]

Direct: 213-457-8056


Reed Smith LLP Suite 2900

355 South Grand Avenue


Scott H. Jacobs, Attorney

[email protected]


Reed Smith LLP

Suite 2900

355 South Grand Avenue Los Angeles, CA 90071-1514


5

James Meadows, Esquire** [email protected]


BOIES SCHILLER & FLEXNER LLP

7th Fl. Firm: 212-446-2300

575 Lexington Avenue

New York, NY 10022

Adam S. Paris, Attorney

Parisasullcrom.com



Suite 2100 1888 Century Park East

Los Angeles, CA 90067

Yvonne S. Quinn, Esquire** [email protected]


Sullivan & Cromwell LLP Firm: 212-558-4000

125 Broad Street

New York, NY 10004-2498

Jonathan Schiller, Esquire**

[email protected]


BOIES SCHILLER & FLEXNER LLP 7th Floor

Firm: 212-446-2300

575 Lexington Avenue New York, NY 10022

Jeffrey T. Scott, Esquire**

[email protected] [COR LD NTC Retained]



6

Firm: 212-558-4000 125 Broad Street

New York, NY 10004-2498

BARCLAYS CAPITAL REAL

ESTATE, INC., DBA Homeq Servicing


David Harold Braff

Direct: 212-558-4705


(see above)

Brandon W. Corbridge, Esquire,

Attorney


(see above)

Matthew Scott Fitzwater, Special

Counsel

Direct: 212-558-1632


Margaret Anne Grignon, Esquire Direct: 213-457-8056


(see above)

Scott H. Jacobs, Attorney

Direct: 213-457-8000


James Meadows, Esquire


Adam S. Paris, Attorney Direct: 310-712-6600


(see above)


7

Yvonne S. Quinn, Esquire [COR LD NTC Retained]

(see above)

Jonathan Schiller, Esquire [COR LD NTC Retained]

(see above)

Jeffrey T. Scott, Esquire


(see above)

OCWEN LOAN SERVICING, LLC


Eric D. Houser, Attorney

Direct: 949-679-1111


Steven Saeyoung Son, Esquire


(see above)

**Counsel not registered with ECF – service by US Mail not mandated

*By Mail:

Hon. Cormac J. Carney

United States District Court

Central District of California

411 W. Fourth Street, #1053 Santa Ana, CA 92701-4518

Attorney General’s Office: Appellate Coordinator

Office of the Attorney General

Consumer Law Section

300 S. Spring Street Los Angeles, CA 90013-1230


Homeowner Helen Galope's Opening Appellant Brief in 9th Circuit regarding the LIBOR class action...

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Transcript of Homeowner Helen Galope's Opening Appellant Brief in 9th Circuit regarding the LIBOR class action...