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93000/HR0710/00545509-3 1
ADMINISTRATIVE MOTION RE: BRIEFING AND HEARING ON REQ. FOR TRO/OSC RE: PRELIM. INJ.
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Amanda L. Groves (SBN: 187216)
agroves@winston.com
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
T. Thomas Cottingham, III (admitted pro hac vice)
tcottingham@winston.com
Stacie C. Knight (admitted pro hac vice)
sknight@winston.com
WINSTON & STRAWN LLP
100 North Tryon Street, Suite 2900
Charlotte, NC 28202-1078
Telephone: +1 704 350 7700
Facsimile: +1 704 350 7800
Mark T. Flewelling (SBN: 96465)
mflewelling@afrct.com
Yaw-Jiun (Gene) Wu (SBN: 228240)
gwu@afrct.com
Leigh O. Curran (SBN: 173322)
lcurran@afrct.com
ANGLIN, FLEWELLING, RASMUSSEN,
CAMPBELL, AND TRYTTEN
199 So. Los Robles Ave., #600
Pasadena, CA 91101
Telephone: +1 626 535 1900
Facsimile: +1 626 577 7764
Attorneys for Defendants WACHOVIA
MORTGAGE, FSB, WACHOVIA BANK, FSB,
AND GOLDEN WEST FINANCIAL
CORPORATION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN RE: WACHOVIA CORP.
“PICK-A-PAYMENT” MORTGAGE
MARKETING AND SALES PRACTICES
LITIGATION
This document relates to:
ALL CASES
Case No. 5:09-md-2015-JF
ADMINISTRATIVE MOTION RE:
BRIEFING AND HEARING ON
PLAINTIFFS’ EX PARTE REQUEST
FOR A TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW CAUSE
RE: PRELIMINARY INJUNCTION;
DECLARATION OF T. THOMAS
COTTINGHAM, III
Judge: Hon. Jeremy Fogel
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93000/HR0710/00545509-3 2
ADMINISTRATIVE MOTION RE: BRIEFING AND HEARING ON REQ. FOR TRO/OSC RE: PRELIM. INJ.
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TO THE COURT, TO ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD:
Pursuant to N.D. Civ. L.R. 7-11 and 79-5, Defendants hereby move this Court to issue
certain orders regarding the briefing and hearing scheduling on Plaintiffs’ ex parte request for a
temporary restraining order and order to show cause re: preliminary injunction (“TRO Request”).
On December 7, 2012, Plaintiff filed their TRO Request. (Doc. #365-1). This Court
ordered Defendants to file their opposition papers by December 12, 2012. No date has been set
for a hearing on the TRO Request.
Because of the complexity of the factual and legal issues raised by the TRO Request,
Defendants request the following orders:
1. That the hearing be scheduled for a date convenient to the Court’s calendar after
January 2, 2013.
2. That Defendants be permitted to file a Supplemental Declaration of Michael
Dolan. A copy of the proposed Supplemental Declaration is attached hereto as
Exhibit A. Defendants request that this Supplemental Declaration be deemed
filed as of the entry of an order granting this motion.
3. That Defendants be permitted to file Evidentiary Objections to the declarations
and exhibits submitted by Plaintiffs. A copy of the Evidentiary Objections is
attached hereto as Exhibit B. Defendants request that the Evidentiary Objections
be deemed filed as of the entry of an order granting this motion.
Good cause exists to set the hearing date and briefing schedule and to modify the Local
Rules’ requirements for submission of and objections to evidence.
The TRO Request arises out of the settlement of a nationwide class action. Plaintiffs, by
their TRO Request, seek an extremely broad injunction that would prohibit Defendants from
foreclosing, selling, or attempting to sell properties securing loans of certain Class Members.
(Doe. #365-1 at 35:7-12).
The requested briefing schedule would allow the parties time to address the complex
factual and legal issues in a meaningful way. The consequences of the Court’s ruling on the
TRO Request are significant. If Plaintiffs’ request is granted, the injunction will impose a major
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93000/HR0710/00545509-3 3
ADMINISTRATIVE MOTION RE: BRIEFING AND HEARING ON REQ. FOR TRO/OSC RE: PRELIM. INJ.
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disruption of the bank’s business operations, specifically, its enforcement of its loan agreements
and recoupment of losses. The seriousness of the issues warrants the requested briefing
schedule, as well as the proposed modification of the court’s restrictions on submitting
objections and supplemental evidence.
Plaintiffs will not be prejudiced by a January 2013 hearing date. The bank is voluntarily
putting in place a moratorium on all foreclosure sales in all states but Georgia and Texas from
December 19, 2012 to January 2, 2013.
Defendants sought, but were unable to obtain, a stipulation of Plaintiffs to the relief
sought in this motion. Cottingham Dec., ¶ 2-3.
Dated: December 14, 2012 Respectfully Submitted,
WINSTON & STRAWN LLP
By: /s/ T. Thomas Cottingham, III
T. Thomas Cottingham, III (admitted pro hac vice)
Stacie C. Knight (admitted pro hac vice)
100 North Tryon Street, Suite 2900
Charlotte, NC 28202-1078
Telephone: (704)350-7700
Facsimile: (704)350 7800
Amanda L. Groves (SBN: 187216)
101 California Street
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
AND
ANGLIN, FLEWELLING, RASMUSSEN
CAMPBELL & TRYTTEN LLP
By: /s/ Yaw-Jiun (Gene) Wu
Mark T. Flewelling (SBN 96465)
Yaw-Jiun (Gene) Wu (SBN: 228240)
Leigh O. Curran (SBN: 173322)
199 So. Los Robles Ave. Suite 600
Pasadena, CA 91101
Telephone: (626) 535-1900
Facsimile: (626) 577-7764
Attorneys for Defendants
ATTORNEYS FOR DEFENDANTS WACHOVIA
MORTGAGE FSB, WACHOVIA BANK, FSB, AND
GOLDEN WEST FINANCIAL CORPORATION
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93000/HR0710/00545509-3 4
DECLARATION OF T. THOMAS COTTINGHAM, III
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DECLARATION OF T. THOMAS COTTINGHAM, III
I, T. Thomas Cottingham, III, declare as follows:
1. I am an attorney at law admitted to practice before this Court and am licensed to
practice law in North Carolina and Alabama. I am a partner of the law firm of Winston &
Strawn LLP, counsel of record for Defendants. I have personal knowledge of the matters stated
below.
2. On December 14, 2012, I called Jeffrey Berns, counsel for Plaintiffs. I proposed
that the parties stipulate that the hearing on the TRO Request be scheduled for a date in January
2013, and that Plaintiffs’ reply, of no more than 30 pages per his previous request, be due five
(5) business days before the hearing. I proposed that Defendants be permitted to file a
Supplemental Declaration of Michael Dolan; and that Defendants be permitted to file
Evidentiary Objections to the declarations and exhibits submitted by Plaintiffs.
3. Mr. Berns said he would not agree to the proposed stipulation.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct, and that this declaration is executed on December 14, 2012, at
Charlotte, North Carolina.
/s/ T. Thomas Cottingham, III
T. Thomas Cottingham, III
Case3:09-md-02015-RS Document373 Filed12/14/12 Page4 of 32
Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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Exhibit A to Administrative Motion
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93000/HR0710/00545005-1 1
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Amanda L. Groves (SBN: 187216)
agroves@winston.com
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
T. Thomas Cottingham, III (admitted pro hac vice)
tcottingham@winston.com
Stacie C. Knight (admitted pro hac vice)
sknight@winston.com
WINSTON & STRAWN llp
100 North Tryon Street, Suite 2900
Charlotte, NC 28202-1078
Telephone: +1 704 350 7700
Facsimile: +1 704 350 7800
Mark T. Flewelling (SBN: 96465)
mflewelling@afrct.com
Yaw-Jiun (Gene) (SBN: 228240)
gwu@afrct.com
Leigh O. Curran (SBN: 173322)
lcurran@afrct.com
ANGLIN, FLEWELLING, RASMUSSEN,
CAMPBELL, AND TRYTTEN
199 So. Los Robles Ave., #600
Pasadena, CA 91101
Telephone: +1 626 535 1900
Facsimile: +1 626 577 7764
Attorneys for Defendants WACHOVIA
MORTGAGE, FSB, WACHOVIA BANK, FSB,
AND GOLDEN WEST FINANCIAL
CORPORATION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN RE: WACHOVIA CORP.
“PICK-A-PAYMENT” MORTGAGE
MARKETING AND SALES PRACTICES
LITIGATION
This document relates to:
ALL CASES
Case No. 5:09-md-2015-JF
DEFENDANTS’ OBJECTIONS TO
EVIDENCE OFFERED IN SUPPORT OF
PLAINTIFFS’ EX PARTE REQUEST FOR
A TEMPORARY RESTRAINING ORDER
AND ORDER TO SHOW CAUSE RE:
PRELIMINARY INJUNCTION
Judge: Hon. Jeremy Fogel
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 2
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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TO THE COURT, TO ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD:
Defendants respectfully submit the following objections to the evidence offered by
Plaintiffs in support of their ex parte request for a temporary restraining order and order to show
cause re: preliminary injunction (“TRO Request”). Pursuant to N.D. Cal. Civ. L.R. 7-5(b),
Defendants request that the Court strike the matters described below:
Evidence Objected To Objection
Declaration of Jeffrey Berns (“Berns Dec.”), ¶ 4:
“In speaking with these Settlement Class Members and
reviewing documents that they provided to me, I noticed
patterns of the Defendants’ conduct that indicated to me
that they were violating the terms of the Settlement
Agreement.”
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Improper legal conclusion.
Berns Dec., ¶ 5:
“To date, my firm has obtained information from, and
my staff and I have spoken with over 9,000 of Settlement
Class Members who have applied for, but not received,
MAP2R loan modifications and who believe that their
modification applications were improperly denied.”
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Berns Dec., ¶ 6:
“The experiences of the thirty-one Unmodified
Settlement Class Plaintiffs (covering 21 loans) set forth
in the Memorandum of Points and Authorities in Support
of Plaintiffs’ Ex Parte Application for a Temporary
Restraining Order and an Order to Show Cause
Regarding Preliminary Injunction are consistent with the
information that my firm has received, and continues to
receive, from other Unmodified Settlement Class
Members.”
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 7:
“Defendants have frequently failed to provide me with
required quarterly reports pursuant to the Settlement
Agreement, and what reports Defendants have provided
are incomplete and include inconsistent information
regarding loan modifications for Settlement Class
Members.”
Vague as to “frequently,”
“incomplete,” and “inconsistent
information.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 3
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Berns Dec., ¶ 7:
“Information that Unmodified Settlement Class Members
have voluntarily provided through my firm’s web site,
which is much less than the full universe of Unmodified
Settlement Class Members, indicates that 969
Unmodified Settlement Class Members have received a
notice that Wells Fargo is going to foreclose on their
home.”
Vague as to the “Information”
supposedly provided.
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 8:
“Based on Wells Fargo quarterly reports provided to me
by Defendants, in the 18-month period from April 2011
to September 2012, 66,671 Settlement Class B and C
Members have applied for loan modifications pursuant to
the Settlement Agreement. Defendants completed
MAP2R modifications for 1,746 Settlement Class
Members during that time.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Berns Dec., ¶ 8:
“Defendants completed MAP2R modifications for 1,746
Settlement Class Members during that time. Defendants
also completed HAMP modifications for 12,855 of these
Settlement Class Members during that time.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Berns Dec., ¶ 8:
“My firm does not have any information reflecting that
Wells Fargo has run any Settlement Class Member who
has received a HAMP modification through the MAP2R
waterfall or informed any of those Settlement Class
Members that they are also eligible for a MAP2R
modification, which may be more advantageous than a
HAMP modification due to the availability of principal
forgiveness.”
Irrelevant. (FRE 402).
Probative value is substantially
outweighed by a danger of unfair
prejudice and confusing the
issues. (FRE 403).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 4
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Berns Dec., ¶ 9
“Based on my review of information provided by
Settlement Class Members, Defendants have failed to
implement any procedures that minimize document
requests. Instead, Defendants have frequently asked
Settlement Class Members for documents that were not
necessary, lost many of their documents, required
Settlement Class Members to resend documents multiple
times, and have given Settlement Class Members
contradictory information concerning the documents they
needed to provide in the application process.”
Vague.
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 9:
“Defendants also frequently switched Settlement Class
Members’ point of contact and assigned multiple points
of contact that resulted in Settlement Class Members
receiving incorrect and contradictory information about
the application process.”
Vague.
Lack of foundation (FRE 901).
Berns Dec., ¶ 10:
“My examination of Settlement Class Member records
also revealed that Defendants repeatedly failed to provide
timely, if any, notification of modification denials and,
even when they did provide notice, gave insubstantial
explanations of the reasons for denial such as “not in
imminent threat” that would prevent Settlement Class
members from understanding the decision or effectively
responding to it.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 11:
“Based on my review of documents from hundreds of
Settlement Class Members, I believe that Defendants are
determining the fair market value of Settlement Class
Members’ homes through automated valuation models
that tend to inflate values over those that an independent
appraisal would generate. I have not seen any evidence
that Defendants are obtaining independent appraisals.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 5
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Berns Dec., ¶ 12:
“Based on my review of Settlement Class Members’
NPV worksheets, I believe that Defendants have
manipulated the NPV calculations for the MAP2R
modification program by treating all steps of the
waterfall as costs of a loan modification, even though
many Settlement Class Members would reach the 31%
PITIA threshold without the need for all of the waterfall
steps.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Berns Dec., ¶ 13:
“Based on my review of Settlement Class Members’
NPV worksheets, I believe that Defendants’ NPV
calculations often use inaccurate monthly income and
PITIA amounts, along with subjective factors that were
never disclosed to me or the Court during the settlement
process.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Berns Dec., ¶ 13:
“My review also indicates that Defendants’ use of
unsubstantiated and inflated property values negatively
affects the amount of principal forgiveness that each
Settlement Class Member could receive as part of the
waterfall process to achieve a 31% PITIA. Defendants
have not on any regular basis used independent
appraisals to determine the property’s fair market
values.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Berns Dec., ¶ 14:
“Based on my review of reports provided to me by
Defendants, during the period from April 1, 2011 to
September 30, 2012 Defendants classified over 70%
(37,079 out of 52,252) of Settlement Class B Members
and over 25% (3,781 out of 14,419) of Settlement Class
C members as “Fall-Outs,” which means that Wells
Fargo never evaluated the loan modification applications
of those Settlement Class Members because of alleged
failure to provide all necessary documentation. For
Settlement Class C members, whom Defendants have
already recognized as being in imminent default at the
time of the settlement, Defendants still classified these
already-defaulting applicants as “Fall-Outs” for alleged
failure meet documentation requirements.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 6
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Berns Dec., ¶ 15:
“My review of Wells Fargo’s reports also reveals that,
even though Defendants agreed to establish a second-
look escalation protocol for review of denied loan
modifications, Defendants have in fact performed Tier-2
reviews in only 12 cases out of the 66,671 Settlement
Class B and C members who applied for loan
modifications from April 2011 to September 2012.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 16:
“Settlement Class Members Paul and Julie McDermed
are not listed on any of the reports that Defendants have
provided to me.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Berns Dec., ¶ 17:
“A Wells Fargo report provided to me by Defendants
indicates that the modification application of Settlement
Class Members Omar M. and Ruth F. Bishr was denied
because they were not in imminent threat of default.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Berns Dec., ¶ 18:
“A Wells Fargo report provided to me by Defendants
indicates that the modification application of Settlement
Class Members Mary and Gregory Slade was denied
because the “Excessive Forbearance- threshold cannot be
reached.” Based on my review, this denial was improper
since the financial information submitted by the Slades
and the value of their home justified a MAP2R
modification.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Speculation.
Improper legal conclusion.
Berns Dec., ¶ 19:
“A Wells Fargo report provided to me by Defendants
indicates that the modification application of Settlement
Class Member Joseph Midgette was denied because of a
negative NPV result.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Berns Dec., ¶ 20:
“A Wells Fargo report provided to me by Defendants
indicates that the modification application of Settlement
Class Member Christina Zako was denied because she
was not in imminent threat of default.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 7
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Evidence Objected To Objection
Berns Dec., ¶ 26:
“Based on my review of the documents Wells Fargo
produced, I found overwhelming contradictory evidence
from the Class Members to those statements. I
determined that in order to try and prevent further
damage and the loss of Class Members’ homes, the only
alternative was to proceed with litigation.”
Best evidence. (FRE 1002).
Improper legal conclusion.
Declaration of John Burkett, ¶ 3:
“We submitted multiple loan modification applications to
Wells Fargo which have shown that our monthly
mortgage payment exceeds approximately 55% of our
monthly income. Wells Fargo has denied our
modification request multiple times, informing us that
our monthly mortgage payment is below the necessary
31% threshold.”
Best evidence. (FRE 1002).
Hearsay (FRE 802).
Lack of foundation (FRE 901).
Declaration of Cynthia Biggs (“Biggs Dec.”), ¶ 3:
“In our Hardship Affidavit, we explained that our need
for assistance was due to income reduction and
insufficient liquid assets to pay our mortgage and living
expenses.”
Best evidence. (FRE 1002).
Biggs Dec., ¶ 4:
“On March 3, 2011, Wells Fargo notified us by letter that
it had denied our modification request because we were
not in imminent threat of default. At the time of the
denial, our home was worth approximately 30% less than
we owed on our mortgage.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Declaration of Omar Bishr, ¶ 4:
“My wife and I applied for a loan modification with
Wells Fargo but were denied a MAP2R loan
modification because we failed to show we were in
imminent default, despite that our monthly mortgage
expenses are nearly 40% of our monthly income.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Jeff Cory, ¶ 4:
“On February 25, 2011, Wells Fargo denied my
application for a MAP2R loan modification because I
failed to show that I was in imminent threat of default.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 8
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
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Evidence Objected To Objection
Declaration of Jose Cruz, ¶ 3:
“Wells Fargo denied my modification application
because I failed to show that I was in imminent default,
even though my monthly mortgage expenses account for
more than approximately 38% of my monthly income.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Richard D’Alessio (“D’Alessio Dec.”),
¶ 3:
“On January 8, 2011, I Wells Fargo notified me by letter
that they received my loan modification application.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
D’Alessio Dec., ¶ 4:
“On January 11, 2011, I was denied a loan modification
under HAMP because Wells Fargo could not achieve an
affordable monthly payment for me after Wells Fargo
applied all steps of the HAMP waterfall. Wells Fargo
also denied my loan modification request under the
MAP2R program because of a negative Net Present
Value result.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
D’Alessio Dec., ¶ 5:
“On January 25, 2011, I received a letter from Wells
Fargo inviting me to apply for a loan modification. After
receiving this letter, I applied for a loan modification in
February 2011. On March 29, 2011, Wells Fargo denied
my loan modification application under MAP2R again
due to a negative Net Present Value result.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
D’Alessio Dec., ¶ 6:
“Wells Fargo sent me the Net Present Value calculations,
and after I reviewed it, I realized that Wells Fargo had
valued my property at $870,000.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
D’Alessio Dec., ¶ 8:
“On May 4, 2011, I received a letter from Wells Fargo
stating that my documents were being reviewed. On
May 11, 2011, I received a letter from Wells Fargo
stating that it required additional documentation from
me.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 9
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
D’Alessio Dec., ¶ 10:
“On August 30, 2011, I received another denial letter due
to another negative Net Present Value result. This letter
showed that Wells Fargo calculated Net Present Value by
using a property value of $560,000 for my home.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
D’Alessio Dec., ¶ 11.
“After I got this letter: I ran my own NPV test using the
United States Treasury Department website,
www.checkmynpv.com, and an accurate property value
for my home. In reviewing the results, I concluded that
Wells Fargo’s failure to use the correct value for my
property negatively impacted my NPV test. Wells Fargo
never changed its valuation of my home and ultimately
commenced a foreclosure.”
Vague as to “accurate property
value.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Declaration of Jason Fisher (“Fisher Dec.”), ¶ 4:
“In February 2011, I applied for a loan modification from
Wells Fargo but was denied a MAP2R modification
because of a negative Net Present Value result and
because of failing to show that I was in imminent default,
despite that my monthly mortgage expenses are
approximately 50% of my monthly income.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Fisher Dec., ¶ 5.
“When I applied, I owed approximately $565,000 on my
loan, while the value of my property was less than that.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Fisher Dec., ¶ 6:
“On February 16,2011, Wells Fargo denied my request
for a HAMP modification because I did not document a
financial hardship. The same day; I received another
letter from Wells Fargo that denied my request for a
MAP2R modification because of a negative Net Present
Value result. The following day, February 17, 2011, I
received a letter from Wells Fargo that denied my
MAP2R modification request because I was not in
imminent threat of default.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 10
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
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Evidence Objected To Objection
Declaration of Thomas Geremia (“Geremia Dec.”), ¶ 3:
“The Hardship Affidavit stated that our household
expenses had increased, our debt payments had become
excessive, and that we did not have sufficient liquid
assets to cover living expenses. We said in the
application that our monthly mortgage expenses were
more than approximately 36% of our monthly income.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Geremia Dec., ¶ 5:
“On March 18, 2011, Wells Fargo sent a letter denying
our application for a modification under HAMP for
failure to document a hardship. Wells Fargo also denied
us for a MAP2R modification saying we did not meet the
imminent default criteria. However, our application and
supporting papers had showed a financial hardship and
we showed that we were in imminent default.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Sherri Goldfinch, ¶ 4:
“In October 2012, Wells Fargo denied my application
because of a negative Net Present Value result. Wells
Fargo valued my home at $136,000 when it calculated
Net Present Value even though I previously informed
them that my home was worth closer to $110,000.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Declaration of Michael Lerner (“Lerner Dec.”), ¶ 4:
“On September 20, 2012, we were denied a HAMP loan
modification because our proposed modified payment
amount would exceed 42% of our income. On September
21, 23 2012, we were denied a MAP2R modification
because we had excessive financial obligations.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Lerner Dec., ¶ 4:
“As part of the denial, Wells Fargo sent us an NPV
worksheet that listed incorrect information regarding our
income and the value of our home. The NPV worksheet
listed income of $6,928.43 which was almost $1,500
lower than our income at the time. Also, Wells Fargo
stated that the market value of our home was $681,400,
but the actual market value of our home was much
lower.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 11
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Declaration of Catherine Marsh, ¶ 5:
“On February 21, 2011. Wells Fargo denied our
application because we failed to document a hardship.
On February 22, 2011, Wells Fargo sent another denial
letter saying that we were denied for a MAP2R
modification for failing to document a hardship.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Julie McDermed (“McDermed Dec.”),
¶ 6:
“On June 3, 2011, Wells Fargo sent us a letter denying
our loan modification application under HAMP due to
their inability to create a payment equal to 31% of the
our gross income. The letter did not mention the MAP2R
loan modification program.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
McDermed Dec., ¶ 7:
“Had we been properly evaluated for a loan modification,
our monthly payment would have been reduced to 31%
of our monthly income such that we would have received
a loan modification.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to “proper[]
evaluation.” (FRE 701, 702).
Declaration of Joseph Midgette (“Midgette Dec.”), ¶ 4:
“When I applied, I owed approximately$175,000 on my
loan, while the market value of my home was
approximately $145,000.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Midgette Dec., ¶ 5.
“On May 13,2011, I received a denial letter from Wells
Fargo which explained that my application was denied
under HAMP because I failed to document a financial
hardship. The portion of the letter describing the reason
for my denial under MAP2R was left blank.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Jennifer Murphy (“Murphy Dec.”), ¶ 5.
“At that time, I owed approximately $433,700 on the
loan, while my home had a market value of $385,000.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 12
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Murphy Dec., ¶ 6:
“By letter dated February 25, 2012, Wells Fargo denied
my loan modification application because I did not
document a financial hardship. On March 1, 2012, I
faxed a letter to Wells Fargo explaining that I did have a
financial hardship and listing the multiple reasons for it.
On March 2, 2012, I received a letter from Wells Fargo
stating that it could not provide me with any mortgage
assistance. Wells Fargo sent me the same letter again on
April 16, 2012.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Chan Pharn (“Pharn Dec.”), ¶ 4:
“On December 9, 2011, Wells Fargo sent me a letter
denying my modification application and saying that I
was not in imminent default under HAMP as I had the
ability to pay my mortgage using cash reserves or other
assets. On January 20, 2012, Wells Fargo responded,
that ‘[w]e determined you have the ability to pay your
current mortgage payment using cash reserves and/or
other assets. Your loan to value (LTV) ratio of 78.36%
is below 80%, therefore, other assets are available.’ At
that time, my home was worth less than the principal
balance of my loan of approximately $109,000.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Improper opinion as to value of
property (FRE 701, 702).
Declaration of Nathan Ranger, ¶ 3:
“I applied for a loan modification from Wells Fargo, but
was denied because of a negative NPV result.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Carrie Rosillo, ¶ 3:
“I have needed mortgage modification assistance since
2010. However, Wells Fargo has on numerous occasions
denied my requests for a loan modification because I was
not in imminent threat of default, despite the fact that I
have been in default on my mortgage.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Mary Slade, ¶ 4:
“We applied for a loan modification from Wells Fargo
and submitted all the required paperwork. However,
Wells Fargo has failed to provide us any explanation of
whether we were denied for a modification pursuant to
the MAP2R modification program, or a reason why we
were denied.”
Lack of foundation (FRE 901).
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 13
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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Evidence Objected To Objection
Declaration of David Young, ¶ 4.
“On March 5, 2012, Wells Fargo denied our loan
modification application under HAMP and MAP2R for
not documenting a financial hardship. We immediately
contacted Wells Fargo to request review of their deniaL
On April 12, 2012, we received a letter saying that
according to Wells Fargo’s calculations, we had an HTI
of 33.58% and therefore not eligible for a modification.
The letter did not give us any explanation as to why we
were not eligible for a loan modification, even though
our monthly mortgage payment was above the 31%
threshold using Wells Fargo’s incorrect figures.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Declaration of Christina Zako (“Zako Dec.”), ¶ 3:
“In my Hardship Affidavit, I explained that my income
had been reduced and I had excessive monthly debt. I
also sent Wells Fargo a document explaining that my
lowered income was due to the facts that my work hours
had been reduced and my husband’s salary had been
frozen for two years.”
Best evidence. (FRE 1002).
Lack of foundation (FRE 901).
Zako Dec., ¶ 4:
“At the time I submitted my application my monthly
mortgage payment was approximately over 35% of my
monthly income and I owed Defendants over 30% more
than my home was worth.”
Lack of foundation (FRE 901).
Improper opinion (FRE 701,
702).
Improper opinion as to value of
property (FRE 701, 702).
Dated: December 14, 2012 Respectfully Submitted
WINSTON & STRAWN LLP
By: /s/ T. Thomas Cottingham, III
Amanda L. Groves (SBN: 187216)
agroves@winston.com
101 California Street
San Francisco, CA 94111-5802
Telephone: (415) 591-1000
Facsimile: (415) 591-1400
AND
Exhibit B to Administrative Motion
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93000/HR0710/00545005-1 14
DEFENDANTS’ OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF PLS’ EX PARTE
APPLICATION FOR TRO AND OSC RE: PRELIMINARY INJUNCTION
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T. Thomas Cottingham, III (admitted pro hac vice)
tcottingham@winston.com
Stacie C. Knight (admitted pro hac vice)
sknight@winston.com
WINSTON & STRAWN LLP
100 North Tryon Street, Suite 2900
Charlotte, NC 28202-1078
Telephone: +1 704 350 7700
Facsimile: +1 704 350 7800
AND
ANGLIN, FLEWELLING, RASMUSSEN
CAMPBELL & TRYTTEN LLP
By: /s/ Leigh O. Curran
Mark T. Flewelling (SBN 96465)
mflewelling@afrct.com
Yaw-Jiun (Gene) (SBN: 228240)
gwu@afrct.com
Leigh O. Curran (SBN: 173322)
lcurran@afrct.com
199 So. Los Robles Ave. Suite 600
Pasadena, CA 91101
Telephone: +1 626 535 1900
Facsimile: +1 626 577 7764
Attorneys for Defendants WACHOVIA MORTGAGE FSB,
WACHOVIA BANK, FSB, AND GOLDEN WEST
FINANCIAL CORPORATION
Exhibit B to Administrative Motion
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93000/HR0710/00545586-1 1 CASE NO. 5:09-MD-2015-JF
CERTIFICATE OF SERVICE
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CERTIFICATE OF SERVICE
I, the undersigned, declare that I am over the age of 18 and am not a party to this action.
I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling,
Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena,
California 91101-2459.
On the date below, I served a copy of the foregoing document entitled:
ADMINISTRATIVE MOTION RE: BRIEFING AND HEARING ON PLAINTIFFS’
EX PARTE REQUEST FOR A TEMPORARY RESTRAINING ORDER AND
ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION;
DECLARATION OF T. THOMAS COTTINGHAM, III
on the interested parties in said case as follows:
Served Electronically
Via the Court’s CM/ECF System
Attorneys for Plaintiffs and the Settlement Class
BERNS WEISS LLP
Jeffrey K. Berns
20700 Ventura Blvd. Suite 140
Woodland Hills, CA 91364
jberns@bernsweiss.com
Tel: (818) 961-2000
Fax: (818) 999-1500
BERNS WEISS LLP
Lee A. Weiss
626 RXR Plaza
Uniondale, NY 11556
lweiss@bernsweiss.com
Tel: (516) 222-2900
Fax: (818) 999-1500
Served by Means Other Than Electronically
Via the Court’s CM/ECF System
Derek S. Tarson
Legal Aid Society of Rockland County, Inc.
2 Congers Road
New City, NY 10956
Movant
Nick John Makreas
271 Tulare Drive
San Bruno, CA 94066
Miscellaneous
Patricia S. Jimenez
17019 Limetree Lane
Riverside, CA 92502
Pro Hac Vice
Stacie C. Knight, Esq.
Winston & Strawn LLP
214 N. Tryon Street
Charlotte, NC 28202
BY MAIL: I am readily familiar with the firm’s practice of collection and processing
correspondence by mailing. Under that same practice it would be deposited with U.S.
Postal Service on that same day with postage fully prepaid at Pasadena, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
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93000/HR0710/00545586-1 2 CASE NO. 5:09-MD-2015-JF
CERTIFICATE OF SERVICE
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I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. I declare that I am employed in the office of a member of the
Bar of this Court, at whose direction the service was made. This declaration is executed in
Pasadena, California on December 14, 2012.
Nancy J. Peters /s/ Nancy J. Peters
(Type or Print Name) (Signature of Declarant)
Case3:09-md-02015-RS Document373 Filed12/14/12 Page32 of 32
