Joseph Zernik
DMD PhD
Fax: (801) 998-0917 Email: jz12345@earthlink.net
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048.308-03-05 Memorandum Opinion, Hon Jeff Bohm, US Judge, TX
Conduct of Countrywide, and now BAC/Countrywide, which started in 2004, andcontinues even today, in part – since July 3, 2007, has been an exact repeat of conduct described in detail in the Memorandum Opinion referenced above.In that Memorandum Opinion, Countrywide is quoted as making promises to avoidsuch conduct in the future, and the court stated its determination to verify that itstrust in such promises was well placed.The scheme involving Todd Boock, Bryan Cave, LLP, Sandor Samuels, Angelo Mozilo,Tim Mayopoulos, and eventually Ken Lewis, where at the end nobody is purportedly accountable for racketeering in the court in LA, was exact copy of the abuse of OutsideCounsel procedures noted in the Texas decision.The Opinion was described in media as “rebuke” of Countrywide’s litigation practices.Indeed, the Hon Jeff Bohm does not mince words:
“…During several hearings over the past year, the Courtreceived evidence on a wide range of misconduct beyond thisinitial misrepresentation.The parties are a mortgage loan servicer and its two law fIrms: (I)Countrywide Home Loans, Inc. (Countrywide), the loan servicer forFannie Mae, the mortgagee of the Debtor's home loan; … Theircollective conduct caused this Court to issue two Show CauseOrders. This Memorandum Opinion discusses how their actionsin the case at bar have shown a disregard for the professionaland ethical obligations of the legal profession and judicialsystem.”
(pp 1-2)
'
7. Policy changes made by the parties as a result of theshow cause hearing
More than nine months passed between the issuance of the FirstShow Cause Order and the closing arguments in this matter.During this time, each of the parties attempted to respond to theissues raised by the Court and the UST. Although a multitude ofissues remain unresolved, the Court is pleased that some stepshave been taken in the right direction. After the parties read thisMemorandum Opinion, the Court hopes they will continue theseimprovements.'
(p 52)
'
Changes made by Countrywide
Countrywide has made two changes as a result of the ShowCause Orders.27 First, Countrywide no longer refers Fannie Maeloans to a single national counsel. [Aug. 8, 2007 Hr'g Tr.157:10-21.] Insofar as this change means that Countrywide willbe directly communicating with attorneys who file pleadings onbehalf of Countrywide, the Court believes that this is a positivechange. Second, Countrywide will require that internal affidavitsbe executed prior to the filing of a motion to lift stay, and will bediligent about communicating with outside counsel to ensure thatCountrywide provides accurate information. [Aug. 8, 2007 Hr'g Tr.158:25-159:7.]'
(p53)
Digitally signedby Joseph Zernik DN: cn=JosephZernik,email=jz12345@earthlink.net, c=USDate: 2009.03.2823:32:31 -07'00'
Case 2:08-cv-01550-VAP-CW Document 31 Filed 04/02/2008 Page 11 of 59
Case05-90374Document248Filed
in
TXSB
on
03/05/2008
IN
THE
UNITEDSTATESBANKRUPTCY
COURT
FORTHE
SOUTHERNDISTRICT
OF
TEXASHOUSTON
DMSION
ENTERED
03/05/2008
In
re:WILLIAMALLENPARSLEY,Debtor
§§§§§§§
§
Case
No.
05-90374
Chapter
13
MEMORANDUMOPINIONONSHOWCAUSEORDERS
OF
FEBRUARY12.2007ANDMAY18.2007
I.Introduction
The
matterbeforethisCourt
beganwith
aroutine
motionto
lift
stay,but
has
spiraled
into
alengthy
ordeal
which
has
costthepartiessubstantial
time,
attorneys'
fees,
and
costs.
Overoneyear
ago,
on
February6,2007,theCourtsoughtasimple
answerto
asimplequestion-why
was
a
motion
to
lift
stay
beingwithdrawn?Themovant's
attorney,
rather
than
answer
the
questiontruthfully
by
admittingthat
the
motion
was
based
upon
an
incorrectpaymenthistory,attempted
to
concealthe
truth
from
the
Court-that
the
motionshould
have
never
beenfiled.
Thisrather
narrowissue
precipitated
an
expansiveproceeding.Duringseveral
hearings
overthepast
year,the
Courtreceived
evidence
on
a
wide
range
of
misconduct
beyond
this
initialmisrepresentation.
The
parties
are
amortgage
loan
servicer
anditstwolaw
fIrms:
(I)Countrywide
HomeLoans,Inc.
(Countrywide),theloanservicer
for
Fannie
Mae,
the
mortgagee
of
the
Debtor's
homeloan;(2)
McCalla,
Raymer,
Patrick,Cobb,Nichols
&
Clark
(McCalla
Raymer),
the
national
law
firmtowhich
Countrywidereferred
the
fileafterdeciding
to
seek
relief
from
the
automatic
stay;and(3)Barrett,
Burke,
Wilson,
Castle,Daffin
&
Frappier,
L.L.P.
(BarrettBurke),
the
Texaslaw
finn
whichMcCalla
Raymerchoseto
draft,
file,andprosecute
the
motion
to
lift
stay.
Theircollective
conductcaused
March
31,2008;
REQUESTFORJUDICIALNOTICE.ExhibitPage#7
Case 2:08-cv-01550-VAP-CW Document 31 Filed 04/02/2008 Page 12 of 59
Case05-90374Document248Filed
in
TXSB
on
03/05/2008Page2of
40
thisCourt
to
issue
two
Show
Cause
Orders.
This
Memorandum
Opiniondiscusses
how
their
actions
in
thecaseatbarhaveshownadisregard
for
theprofessional
and
ethicalobligations
of
thelegal
professionandjudicialsystem:
II.Background
of
theeventsprecedingtheFirstShowCause
Order
A.
TheimportanceofhomesteadsinTexas
In
Texas,homesteads
are
sacrosanct.
In
reMcDaniel,
70
F.3d841,843(5th
Cir.
1995).
Indeed,
when
itfirsttookeffect,theTexasStateConstitutionexpresslyforbade
forced
foreclosure
sales
on
homesteadsexcept
for
thosecreditors
who
held
purchase
money
liens,mechanics'
liens,or
tax
liens.
Magallanez
v.
Maga/lanez,
911
S.W.2d91,94
(Tex.
App.-San
Antonio
1995)
(citing
Tex.
CaNST.
art.
XVI,
§
50;
TEX.
PROP.CODEANN.
§
41.002
(Vernon2006».2Thepublic
policy
of
Texas'liberalprotection
of
homesteads
is
"toprotectcitizens
and
theirfamilies
from
themiseries
and
dangers
of
destitution."
In
re
Bradley,
960
F.2d502,505(5th
Cir.
1992)
(quoting
Frank/in
v.
Coffee,
18
Tex.413,415-16(1857»;
In
reSorrell,
292B.R.276,280
(Bankr.
E.D.
Tex.2002).
B.The
Court's
concernoverwithdrawnmotionsto
lift
stayonhomesteadsofdebtors
Giventhisimportant,long-standingpolicyprotectinghomesteads
in
Texas,this
Court
makes
everyeffort
to
ensurethatmotions
to
liftstayseeking
to
foreclose
on
homesteadscontain
accurate
informationregardingpayments
made
bythe
debtor.
When
adebtor'shomestead
isthe
subject
of
awithdrawnmotion
to
liftstay,
this
Courttypicallyinquires
whythe
movant
wantsto
withdrawthe
I
See
In
reMaisel,
378B.R.
19,20.21
(Bankr.
D.Mass.
2007)
("Unfortunately,concomitant
with
the
increase
in
foreclosuresisan
increase
in
lenders
who,
in
their
rush
to
foreclose,haphazardly
failto
comply
witheven
themost
basiclegalrequirements
of
the
bankruptcy
system.")
2
In1997,theTexas
Constitution
wasamendedto
allow
for
forced
sales
where
the
lien
was
created
through
a
qualifying
home
equityloan.
TEX.
CONST.
art.
XVI,
§
SO(a)(6)(A);
see
a/so
Box
v.
First
StateBank,
340
B.R.782,
784
(S.D.
Tex.
2006).
2
March31,2008;REQUESTFORJUDICIALNOTICE.ExhibitPage#8
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08-03-05 Case of Borrower William Parsley (05-90374), Dkt #248: Judge Jeff Bohm's Memorandum Opinion, rebuking Countrywide's litigation practices, Countrywide's false outside counsel scheme s
“…During several hearings over the past year, the Court received evidence on a wide range of misconduct beyond this initial misrepresentation. The parties are a mortgage loan servicer and its two law fIrms: (I) Countrywide Home…
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