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Case 8:12-cv-00323-CJC-RNB Document 72 Filed 08/13/12 Page 1 of 28 Page ID #:3268

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Lenore L. Albert, Esq. SBN 210876 LAW OFFICES OF LENORE ALBERT 7755 Center Avenue, Suite #1100 Huntington Beach, CA 92647 Telephone (714) 372-2264 Facsimile (419) 831-3376 Email: lenorealbert@msn.com Attorney for Plaintiff, HELEN GALOPE, on behalf of herself and all others similarly situated

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA HELEN GALOPE, an individual, on behalf of CASE NO. SACV 12 00323-CJC (RNBx) herself and all others similarly situated, Assigned to the Hon: Cormac J. Carney Plaintiffs, vs. PLAINTIFFS STATEMENT OF GENUINE DISPUTES DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, et al, Defendants. DATE: To be taken under submission TIME: n/a DEPT: 9B

1 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. In April 2007, HomEq began to service the Loan for Deutsche Bank as Trustee. 2. The Loan was secured by a Deed of Trust recorded against the real property located at 19117 Delano Street, Reseda, CA 91335 in the Los Angeles County Recorders Office. and Exhibit A; Free Writing Prospectus FWP Ex 11 of RJN 13; and LIBOR Rate History Ex 8 of RJN 10. Undisputed. Objection as to Decl of Stacy 4 violates the parole evidence rule, best evidence rule, lack of personal knowledge, and inadmissible hearsay. Irrelevant as it is not a material fact that would defeat a cause of action or claim in the third amended complaint. Disputed. Barclays Capital Real Estate, Inc. was doing business as HomEq in 2007. Barclays Capital Real Estate, Inc. was the 1. On December 16, 2006, Helen Galope borrowed $522,000.00 from lender New Century Mortgage Corporation. Under the terms of the Loan, the interest rate could not change based on a calculation involving the London Interbank Offered Rate (LIBOR) until January 2009. Moving Partys Facts and Evidence Opposing Partys Response and Supporting Evidence Barclays Bank plcs subsidiary was the lender according to the FW and 424b5 filed with the SEC. New Century Mortgage Corporation was merely the loan seller. Ms. Galopes loan was a LIBOR Interest Only Adjustable Rate Mortgage wherein defendants Barclays Bank plc, Barclays Capital Real Estate, Inc. and Deutsche Bank manipulated the LIBOR six months prior to Galope obtaining her loan, which her loan was based on. Decl of William Matz 5-7, 11-13; Decl of Helen Galope 6-7

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GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $15,951.62 in arrears on the Loan. 5. In April 2008, HomEq offered Ms. Galope a loan modification, which she accepted, and this modification was reduced to writing. Under the terms of the modification, the interest rate was fixed at 5.5% for the following 345 months. 4. By April 2008, Ms. Galope was

Master Servicer of the Mortgage Backed Securities Trust, and as such, has been the servicer of Ms. Galopes loan since its inception. Free Writing Prospectus FWP Ex 11 of RJN 13. Disputed.

Irrelevant and misleading as stated because although it was reduced in writing, Galope never received the full writing until on or about June 2012 after this litigation ensued. The issue was that Barclays refused to furnish the entire terms of the loan by faxing over a document with 2 legal size papers sandwiched between 2 letter size papers without warning that the terms were contained on legal size paper. Thereafter, Barclays refused to send the Loan Modification with complete terms to Galope, making Galope paranoid enough as to the uncertainty of her future terms that she sought the advice of an attorney and then bankruptcy protection. Decl of Galope. Additionally, even defendants initially contended that the interest rate was variable after 2013 when this litigation started. RJN Defendants motion to dismiss the complaint

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GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. On August 17, 2011, Ms. Galopes Chapter 13 bankruptcy was dismissed and the automatic stay vacated. 7. On April 8, 2009, Ms. Galope made her last modified payment on the Loan. 6. The Modification Agreement contains a release provision and an integration clause.

filed in this case which is already in the Courts file. Irrelevant. On July 11, 2012 the California Legislature passed the California Homeowners Bill of Rights which makes a release in a modification unlawful. Prior to that time, federal guidelines, such as HAMP similarly made such clauses unlawful. In California, such clauses were always deemed against public policy and as such, void and are statutorily prohibited. RJN California Senate Bill 900 (2012); California Civil Code 1668. Objection, hearsay and irrelevant. Ms. Galope invested over $100,000.00 in obtaining ownership of her home. Decl of Galope 33. Galope paid defendants $35,354.17 in interest in 2007; $27,388.14 in 2008 and $7,396.83 in 2009 while waiting for an answer as to what her repayment terms were on the modification after April 2013. Decl of Galope 26-29. The automatic stay was not vacated until the court vacated the dismissal on August 30, 2011. At that time, the court stated that the stay was not in effect from after the dismissal on August 17, 2011 up to August 30, 2011. The sale in this case did not occur until

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GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. On September 1, 2011, the property sold at foreclosure sale.

September 1, 2011 so the fact that there was a lapse in the automatic stay in August was irrelevant. Defendants were served with notice that Ms. Galope filed a motion to vacate the dismissal so they were on notice during that time period there was a possibility that the court would reinstate the bankruptcy and the automatic stay would be in place. RJN Ex 12 Request for Courtesy Notice of Electronic Filing by Attorney Les Zieve on behalf of defendant Ocwen Loan Servicing, LLC filed on July 28, 2011 14; RJN Ex 13 Court Order vacating the dismissal and reinstituting the automatic stay on August 30, 2011 which would have automatically been sent to Les Zieve on behalf of defendant Ocwen Loan Servicing, LLC 15; RJN Ex 16 Trustees Deed Upon Sale showing sale of Galopes home by defendants on September 1, 2011 17. Decl of Galope 34-35. The property was transferred by credit bid back to the grantor. Objection to decl of Spurlock. Lack of foundation, lack of personal knowledge, hearsay, parole evidence rule. RJN Ex 16 Trustees Deed Upon Sale showing sale of Galopes home by defendants

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Ms. Galope did not give WPT notice that her Chapter 13 bankruptcy case was reinstated on August 30, 2011 prior to the September 1, 2011 foreclosure sale. 10. While the bankruptcy court reinstated Ms. Galopes Chapter 13 bankruptcy case on August 30, 2011, the bankruptcy court later dismissed this bankruptcy case.

on September 1, 2011 17. The case was not dismissed before September 1, 2011 so this is not a material fact. Irrelevant. Objection to decl of Son. Lack of foundation, lack of personal knowledge, hearsay, parole evidence rule. Irrelevant. Defendant Ocwen Loan Servicing, LLC received notice two days prior to the September 1, 2011 foreclosure sale. WPT was Ocwen Loan Servicing, LLCs agent and it was up to Ocwen Loan Servicing, LLC to give WPT notice. If Ocwen failed to do so, that is not a material fact, but a claim for contribution or indemnification by way of a third party complaint between Ocwen and WPT. Considering WPT and Ocwen are being represented by the same attorney, then it would appear that the court should consider whether or not it can allow the same attorney to continue to represent both clients who now have an actual conflict of interest. RJN Ex 12 Request for Courtesy Notice of Electronic Filing by Attorney Les Zieve on behalf of defendant Ocwen Loan Servicing, LLC filed on July 28, 2011 14; RJN Ex 13 Court Order vacating the dismissal and reinstituting the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. Ms. Galope declared under penalty of perjury in her January 2010 bankruptcy case that the market value of the Property was $373,000.00 and that the total debt on the Loan was $537,951.00. 12. On March 27, 2012, the rescission of the September 1, 2011 foreclosure sale was recorded in the Los Angeles County Recorders Office.

automatic stay on August 30, 2011 which would have automatically been sent to Les Zieve on behalf of defendant Ocwen Loan Servicing, LLC 15; RJN Ex 16 Trustees Deed Upon Sale showing sale of Galopes home by defendants on September 1, 2011 17. Decl of Galope 34-35. Undisputed. Relevant to show the defendants conduct was willful, intentional and warrants punitive damages. RJN no rescission took place until after this litigation was instituted to prove that as a result, Galope incurred costs and attorney fees in seeking to have the wrongful foreclosure set aside. Objection, irrelevant and lack of foundation to show Galope would have any personal knowledge as to the actual value of her property in January 2010. There is nothing directing the borrower, on the US Bankruptcy form, to obtain a formal appraisal of their property when listed on their schedules. The purpose is to determine an approximate size of the debtors debt s in comparison to their assets. Furthermore, the complaint alleges that the defendants manipulated LIBOR. A lowered LIBOR rate would also lower the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Ms. Galope declared under the penalty of perjury in her January 2012 bankruptcy case that the market value of the Property was $350,000.00 and that the total debt on the Loan was $522,000.00.

value of property as they are complementary economic market factors. Galopes lost opportunity to refinance her mortgage because her home was underwater is supported by this fact which is in Galopes favor that a genuine issue exists. Defendants are under an erroneous assumption that this exonerates their liability. Just because market values decrease, it does not follow that wrongfully taking that persons property somehow transforms into an act that, if caught, is exonerated and excused on the assumption that there is no damage. Damage is not so narrowly measured. Objection, irrelevant and lack of foundation to show Galope would have any personal knowledge as to the actual value of her property in January 2012. There is nothing directing the borrower, on the US Bankruptcy form, to obtain a formal appraisal of their property when listed on their schedules. The purpose is to determine an approximate size of the debtors debts in comparison to their assets. Furthermore, the complaint alleges that the defendants manipulated LIBOR. A lowered LIBOR rate would also lower the

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GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employees were also involved in manipulating the LIBOR rate during this same time period.

value of property as they are complementary economic market factors. Galopes lost opportunity to refinance her mortgage because her home was underwater is supported by this fact which is in Galopes favor that a genuine issue exists. Defendants are under an erroneous assumption that this exonerates their liability. Just because market values decrease, it does not follow that wrongfully taking that persons property somehow transforms into an act that, if caught, is exonerated and excused on the assumption that there is no damage. Damage is not so narrowly measured.

ADDITIONAL MATERIAL FACTS IN DISPUTE Plaintiffs Additional Material Facts 1. Barclays and other banks manipulated the LIBOR rate from 2005 through 2009 when Galope obtained her LIBOR Interest Only Adjustable Rate Mortgage Loan at issue in this case. 2. Deutsche Bank admitted that its RJN Ex.14-17 Evidence in Support Thereof Decl of William Matz; RJN 6-9. Ex 4-7, 13.

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3. Barclays and Deutsche Bank together had control over the Mortgage Backed Securitized Trust that Galopes loan was created for and transferred into. 4. Karen Stacy is a paralegal for Barclays and has no personal knowledge of the contents in her declaration. 5. Defendants knew that Galope did not know the terms of her loan past 2013, and even they, contended it was based on adjustable interest after 2013. RJN 1 Motion to dismiss filed by attorney Steve Son which stated Based on these express terms, the interest rate would change on April 1, 2013 pursuant to the provisions of the Adjustable Rate Rider, an addendum to the original Deed of Trust. 6. Ms. Galopes Note was endorsed to Deutsche bank National Trust Company, as trustee under Pooling and Servicing Agreement dated as of May 1, 2007 Securitized AssetBacked Receivables LLC Trust 2007BR4 Mortgage Pass-Through Certificates, Series 2007-BR4. 7. Barclays paid approximately $453 million to settle with three agencies on the LIBOR manipulation allegations from 2005 through 2009. RJN 6-9, Ex 4-7. Galope Decl; RJN 5 RJN 2-4 Ex 1-3.

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8. Barclays admitted that it manipulated or attempted to manipulate LIBOR. 9. LIBOR rates were well under 8.775% when Ms. Galope received her loan at issue in this case. 10. LIBOR rates were well under 5.5% when Ms. Galope received her loan modification at issue in this case. 11. A rule 15 report was filed on March 28, 2008 just two weeks before Ms. Galope entered into a modified interest only period with defendants on her loan. 12. Barclays and/or its subsidiary was the depositor, servicer and Swap provider and Deutsche Bank was the trustee of the Mortgage Backed Securities Trust that Ms. Galopes loan was transferred into. 13. There were 5,072 loans placed in the same Mortgage Backed Securities Trust along with Ms. Galopes loan. 14. A substantial number of those loans were LIBOR loans like Galopes and the word LIBOR can be found 3,232 times in the FWP.

RJN 8, Ex 6.

RJN 10 Ex 8.

RJN 10 Ex 8.

RJN 11 Ex 9.

RJN 12-13 Ex 10-11.

RJN 13 Ex 11.

RJN 13 Ex 11.

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15. The words and phrases describing the terms of Ms. Galopes loan was placed on legal size paper that would not be printed out if faxed and received on letter size paper. 16. Ms. Galope was informed that her payments would go up or down depending on the Market which distressed her because she did not know what that payment obligation would be. 17. Ms. Galope did not receive any other copy of her Loan Modification other than the one that was faxed to her which she received on letter size paper. 18. Ms. Galope sought bankruptcy protection because she was afraid that the bank was going to rip her off when they would not give her the loan terms in writing. 19. Ms. Galope has invested over $100,000.00 in the purchase of her home. 20. Ms. Galope was deprived of title to her home for months; and she

Decl of Galope 8-15, Ex B.

Decl of Galope 15-17

Decl of Galope 18-25

Decl of Galope 29-32.

Decl of Galope 33.

Decl of Galope 32-42.

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expended time and money in trying to figure out the terms to her loan modification and to get title back when the property was transferred in violation of the bankruptcy stay. 21. Ms. Galope was also emotionally distraught over the fact that she could not get a straight answer, as a consumer, as to what her payment obligations were going to be on the modified loan. Galope Decl 17.

Plaintiffs have filed a 31 page 99 paragraph complaint outlining the various acts engaged in by defendants, and four causes of action arising out of those acts surrounding a LIBOR interest only loan made to Helen Galope and the fraudulent presentation of a modification by HomeEq that failed to inform the borrower all material terms of the modified loan. (RJN) 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. (RJN) Defendants have not answered the Third Amended Complaint, yet Defendants improvidently request that the court now find judgment in their favor as a matter of law which is improper and contradicted by the evidence submitted. (RJN) 1. Antitrust Claim

Defendants did not put one material fact in its Separate Statement in support of motion for summary judgment, so the motion should be denied on that ground. Moreover, defendants cite Allen v Wright, 468 US 737, 750 (1984) for their proposition that 13 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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plaintiff must prove injury-in-fact and causation. Allen v Wright, 468 US 737, 750 (1984) is limited to taxpayer standing. The US Supreme Court found the taxpayers could not sue the government for providing financial aid to schools. Unlike Allen, the moving defendants are not governmental agencies and the plaintiff is not a taxpayer. The case is inapposite. Defendant is a private party and plaintiff was a borrower. Amarel v Connell, 102 F3d 1494 (9th Cir 1997) dealt with nineteen rice growers who originally sued several rice cooperatives under a vertical integration theory that can violate antitrust laws has nothing to do with this case. By the time this case was brought to appeal, the rice cooperatives were not part of the action anymore and the issue of standing came up after trial when all of the witnesses and evidence could be thoroughly weighed by the court. An export marketing agent for the cooperatives, the president of the marketing agent and an attorney were the only defendants left in the case. After trial, the court looked at the four factors that needed to be analyzed on a case-by-case basis to determine standing in antitrust actions such as this. Defendants have not applied any of these four factors in their Conclusions of Law analysis. Defendants have not listed each factor in their facts. Defendant did not even put forth any admissible evidence to supply any facts to this claim. Consequently, the court should not grant the motion on this basis alone. Even if the defendants had brought forth some evidence, it is clear that standing exists in this case. The factors, which are not mutually exclusive, are: (1) the nature of the plaintiffs injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative harm; and (5) the complexity in apportioning damages. 1. The Nature of Plaintiffs Injury; that is, whether it was the type the antitrust laws were intended to forestall Galope is alleging price fixing by Deutsche Bank, Barclays and others. Galopes case is one of 14 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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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). It is undisputed that Galope borrowed money on the financing of her home from Barclays and she received an Interest Only LIBOR Adjustable Rate loan. 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). 2. The Directness of the Injury 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).

3. The Speculative Nature of the Harm Defendants contend that there was no harm because Ms. Galope was paying 8.775% interest on her loan at the time the LIBOR manipulation was occurring through to 2009. Defendants argument assumes that the 8.775% fixed interest only rate assigned to Ms. Galopes LIBOR Rate loan by Barclays was reasonable. 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 -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). 15 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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As such, unlike Amarel, the nature of the harm is presumed. 4. The risk of Duplicative Harm; and Here, the risk of duplicative harm is great. The loans are based on 30 year periods and were funded in 2006-2007. These loans will not be repaid for decades. As such, the harm will continue to replicate. The undisputed evidence shows that defendant Deutsche Bank was one of the banks manipulating LIBOR along with Barclays. The evidence also shows that Ms. Galope received her loan during the LIBOR manipulation period which has been pinned down to 2005 through 2009. Furthermore, Deutsche Banks subsidiary was the named trustee of the Mortgage Backed Securities Trust that Barclays various entities formed and serviced which Galopes loan was placed in. Baclays had direct control over the interest rate it was going to charge Galope and simultaneous control over her property value. While Galopes loan which was supposed to be tied to LIBOR at 8. 775% was being paid, the true LIBOR was being artificially depressed and Galopes property value was going down. Galope lost the opportunity to obtain her financing from an institution that was not fixing the market interest rate tied to her loan in 2006 when her home still had equity. As such defendants conclusion that the LIBOR had no effect on plaintiffs specific loan is wholly unsuppor ted by the record, although irrelevant to the case as the law does not require such findings as explained above. 2. Deutsche Bank Admitted on July 31, 2012 that Some of Its Employees were Involved in the LIBOR Manipulation Next, defendant alleges that there is no evidence to support [Galopes] conspiracy theory regarding the alleged LIBOR manipulation. Defendant goes on to urge that plaintiff has no evidence that establishes defendant Deutsche Bank as Trustee had a meeting of the minds with Barclays regarding the alleged manipulation of the LIBOR. Defendant even reaches by asserting there was no evidence that defendant Deutsche Bank as Trustee had actual knowledge and substantially assisted in the alleged manipulation of the LIBOR. However, on July 31, 2012 a letter from Paul Achlietner of Deutsche Bank was provided to the AFP wherein Deutsche Bank did admit that some of its staff was involved in manipulating LIBOR. Consequently, there is evidence that Deutsche Bank had knowledge and a meeting of the minds with 16 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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Barclays. Plaintiffs evidence is uncontradicted. Deutsche Bank has not supplied a declaration to this court stating that it did not have any knowledge or it did not participate in manipulating LIBOR with Barclays in support of its motion. As such, the numerous news articles are sufficient to defeat defendants unsupported argument to the contrary. A. Plaintiff has Sufficient Evidence to Support a Wrongful Foreclosure Claim: Defendant contends that the wrongful foreclosure claim is moot on the grounds that the sale was rescinded during litigation. The court in Wallace v Geico General Ins, Co, 183 CalApp4th 1390, 1401 (2010) explained defendants cannot force involuntary settlements by curing their transgressions after litigation has started. Whether a claim is moot, is measured at the time the case is filed and not thereafter. This coincides with 11 USC section 362(k) which allows damages, even after a bankruptcy has been dismissed or discharged and is not dependent on whether or not the creditor is still in violation of the Code. Here, Galope had standing when the suit was filed. Ocwen did not offer to rescind the sale until after the suit was filed. Consequently, Galope was not able to pick off the named plaintiff. To support her claim, plaintiff has Defendants requesting notice of any such orders from the Court (7/28/11), the Court giving notice of the Order to Defendant (Tues. 8/30/11), and the transfer as memorialized in the Trustees Deed Upon Sale (Thurs. 9/01/11). To support damages plaintiff has her own declaration, declaration of counsel, the events in this Case, and the Rescission (occurring in March 2012). (RJN) Defendants merely provided a narrowly tailored self serving declaration stating that they did not receive notice from Ms. Galope prior to the transfer. However, the defendant waived their right to notice from Ms. Galope when they signed up for electronic notice with the court on 7/28/11. Defendant Ocwen filed a Notice of REQUEST FOR COURTESY NOTICE OF ELECTRONIC FILING on July 28, 2011 in the Galope bankruptcy matter. (RJN Ex 12). 17 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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That notice clearly stated: I further understand this request DOES NOT impose any obligation on the Court, the debtors or any other party in the case to deliver courtesy copies of any orders, pleadings, or other documents entered on the docket by mail, telephone, facsimile, or any other means of electronic transmission. The Order vacating the dismissal and reinstituting the automatic stay was entered on PACER on August 30, 2011 and service was made by the Court. Consequently, the defendants had notice of the stay by ECF on 8/30/11, which was two days before transferring the property in September yet did it anyway. Ocwen argues that Western Progressive did not sign up for the automatic notice so this notice fails. However, as a matter of law, Western Progressive must be deemed to be Ocwens authorized representative or agent so Ocwen was under a legal duty to inform Western Progressive of the Order and Ocwen had 2 days to do so. The deed of trust constitutes a contract between the trustor and the beneficiary, with the trustee acting as agent for both and acting pursuant to the terms of the instrument and their instructions. Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 277. As Ocwens agent, Ocwen had the duty to inform Western Progressive that the Court reinstated the bankruptcy stay. The fact that Ocwen failed to do so may give Western Progressive standing to file a third party complaint against Ocwen for contribution or indemnification but it does not absolve it from liability. In Hatch v Collins, 225 CalApp3d 1104 (1990), the Court explained, A trustee has a general duty to conduct the sale fairly, openly, reasonably and with due diligence, exercising sound discretion to protect the rights of the mortgagor and othersA breach of the trustees duty to conduct an open, fair and honest sale may give rise to a cause of action for professional negligence, breach of an obligation created by statute, or fraud. Here, Western Progressive was negligent in failing to file its own request for automatic notice in the bankruptcy case or at least checking the docket before proceeding if it could not rely on Ocwen to inform it of a change in circumstances. 18 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
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Furthermore, both Ocwen and Western Progressive and Deutsche Bank were informed of the violation right after the sale but each of these defendants wrongfully retained the title to the property for nine more months. On October 14, 2011 Les Zieve filed an objection on behalf of defendant Deutsche Bank National Trust Company to the Chapter 13 plan, as such, defendants knew the stay was in effect, knew they were still in possession of the title to the property that was not supposed to be transferred out of the estate and were objecting to the plan based on lack Plan payments. Coupled with the fact, that rescission was demanded by plaintiff and rescission did not actually occur until defendants were faced with a federal action against them where a TRO was being sought which took the debtor almost nine months (9 months) later to come up with the attorneys fees and costs to prosecute. (Decl of Albert, Decl of Galope, Defendants Exhibit of the Rescission of the TDUS attached to their moving papers) Finally, defendants allege that there is no damage on the grounds that there was no equity in the home. However, damages include attorney fees and costs that were incurred in regaining the property. There was also credit damage for erroneously reporting a foreclosure sale on Galopes credit report. Consequently, there were damages as measured by 11 USC 362(k). These events, taken in their totality, demonstrate a genuine dispute. B. The Wrongful Foreclosure was Unlawful, Unfair and/or Fraudulent Same as above. Defendants very narrowly declare that they did not receive any notice from Ms. Galope that there was a stay on September 1, 2011 when her property was transferred to defendant DBNTC by credit bid. That fact is not material to the outcome because the Court gave defendants notice with regard to the Automatic Stay on Tuesday August 30, 2011 which defendants attorney received through the ECF system. (RJN). Yet, defendant still took the home on two days later on Thursday September 1, 2011 by way of a Trustees Deed Upon Sale. (TDUS date) 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) These events, taken in their totality, demonstrate a genuine dispute.

19 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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C. Faxing a 4 page document Where 2 Pages Were Legal Size Loan Documents to Ms. Galope Without Warning Is Unlawful, Unfair and Fraudulent. Defendants conduct of faxing a legal size document that contained material terms without warning that the fax needed to be printed on legal size paper in order to see all of the terms was unlawful, unfair and fraudulent. It was a fax (fax header sheet with North Highlands fax number on it) (Decl of Galope). The pages where the terms of repayment were located at the bottom were placed below the standard page size according to the document the defendants provided in their moving papers. The entire package faxed to Ms. Galope included a cover letter on letter size paper, the document placed on legal size paper and then the last page of the document on letter size paper. (Decl of Galope) Because, there was no warning that any of the papers were legal size and the signature line remained on the second page, there was no reason for Galope to know that the document could not be printed on standard letter size paper. Defendants did not shrink down the document before faxing it to Galope, as it did for this Court in support of the motion. As such the payments terms were cut off because they were contained in the bottom 3 inches of the page. (Decl of Galope) Defendant only proffered a self serving narrowly tailored declaration that the interest rate did not change in 2013 but the monthly payment changed at that time. Karen Stacy is Barclays Paralegal. (RJN). She has no knowledge nor did she declare she was the custodian of records. (RJN). The important material fact here is that defendant faxed over a document that they knew did not spell out what the terms of the monthly loan amount would be after 2013. Moreover, those terms were placed within the last few inches at the bottom of the document that was typed on legal-sized paper so putting the fax on letter size paper like Galope did, omitted the terms altogether. (Decl of Galope) Galope has kept her original blue inked document. It shows it was faxed back as she received it. Barclays knew or had reason to know Galope only received the portions of the documents that could be printed out on a letter size page. 20 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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Barclays does not refute that they received only Galopes letter size partially cut off modification document signed by Helen Galope. Barclays also does not refute that Helen Galope repeatedly attempted to get the rest of the terms from Taheera Franklin, without result. Barclays does not even refute that they faxed over a legal size document without also mailing it or placing a warning that it was a document printed on legal-size paper. What Barclays did was unfair and fraudulent. A legal size document is 8 by 14 long. A letter size document is 8 1/2 by 11 long. As a result, there were over three inches of modification terms missing from Ms. Galopes document. With material missing information from Ms. Galopes document, there was no meeting of the minds as to what Ms. Galope was signing. In fact, she had no idea nor could she know what she was signing making a defense of fraud in the execution. Barclays knowingly faxed over the document that was typed on legal-size paper without warning Galope and others that the document was on legal-size paper and that in order to see all of the terms they had to receive the fax and print it out on legal-size paper. Barclays signature line for Galope and others was within the letter-size portion of the document so as not to warn Galope that there was a bottom portion missing to the document. The worksheet on the back page and the cover letter were both letter size documents so there was no indicia of a document page size differential between the modification documents first two pages that were sandwiched in between the fax that Galope received. Barclays never returned their signed version of the document to Galope so that she could see the missing terms on the bottom of the page. Galope had no reason to believe that Barclays even had a signature line which would have alerted her to the fact that she should even receive a completed signed document in the mail because that signature line was also within the last three inches of the legal sized document faxed over. Furthermore, Barclays kept the modification terms hidden for over three years, from the Court and Galope.

21 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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Barclays went so far as to refuse sending her another copy of the document by mail when she called to question the missing terms. It was not until June 25, 2012 that Barclays furnished their version of the modification of Galopes LIBOR IO ARM loan by filing it in support of their motion. It appears that there was no missing fax page, the document was complete with all terms, making the document and manner it was provided to the borrower an unlawful, unfair, and fraudulent business practice. Second, Stacy declares that Galope never called in to request her missing terms. Galope declares she did call in requesting her missing terms and spoke to Taheera Franklin at Barclays d/b/a HomEq. (Decl of Galope). There is no declaration from Taheera Franklin as to whether or not she spoke to Galope so Stacys declaration, is inadmissible hearsay and cannot be used to defeat that of Galopes. These events, taken in their totality, demonstrate a genuine dispute. D. Barclays Market Manipulation of the LIBOR rate index was an Unlawful, Unfair and Fraudulent Business Practice and Supports Aiding and Abetting Liability and New Causes of Action Plaintiff incorporates the above. Two days after Barclays furnished the entire agreement to Galope and this Court, on or about June 27, 2012 Barclays PLC, Barclays Bank PLC and Barclays Capital Inc. settled with the Commodities Futures Trading Commission (CFTC) and the US Dept. of Justice for manipulating the LIBOR rates from 2005 through 2009 for $453 million dollars. (RJN) An examination of the Exhibits to defendants MSJ reveals: Galope received an Interest Only Adjustable Rate Mortgage based on LIBOR on December 15, 2006. The interest rate was based on 6 month LIBOR that changed every 2 years. Barclays was making loans based on an index that it and its co-conspirators knew they were manipulating. (Decl of Galope) (RJN)

22 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

Case 8:12-cv-00323-CJC-RNB Document 72 Filed 08/13/12 Page 23 of 28 Page ID #:3290

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (RJN).

As such, Galopes loan and monthly obligations were not based on an independent index. T he depositors 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. Galope paid over $60,000.00 in interest based on LIBOR on her loan. (Decl of Galope) Galope would not have knowingly entered into this loan in if she knew the lender could manipulate the rate. (Decl of Matz, Decl of Galope) There were 5,072 loans placed in this trust. LIBOR loans are identified 3,232 times in the FWP.

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). (RJN) Barclays was found to have repeatedly attempted to manipulate the market and made false, misleading or knowingly inaccurate submissions concerning LIBOR. (RJN) 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) There were messages fixing the LIBOR rate days during the time period Galope received her loan as demonstrated by the US DOJs office. (RJN). Here, Galopes initial interest rate based on the Fixed LIBOR rate only affected Galopes contract. However, there were thousands of other borrowers during this time period in her same MBS Trust that were having their loans fixed too by a manipulated LIBOR market rate. Due to the rates being fixed on a substantial group of borrowers loans in the trust, each borrower in that trust was affected. Even the non LIBOR borrowers were affected to the extent that Barclays could then call in the Swap in 2008-2009 time period. (Decl of Galope and RJN) E. These Material Facts Support Denial of Motion for Summary Judgment . Plaintiff incorporates the above. 23 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

Case 8:12-cv-00323-CJC-RNB Document 72 Filed 08/13/12 Page 24 of 28 Page ID #:3291

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (RJN) 7)

Barclays Bank PLC was the administrator of the sponsor for the MBS trust. (RJN Ex 10 pg s -

Baclays Bank PLC was the owners of the wholly-owned subsidiary who was the depositor of the MBS trust. (RJN Ex 10 pg s-7) Barclays Capital Real Estate Inc. d/b/a HomEq Servicing was the Servicer of the MBS trust (RJN Ex 10 pg s-7). Deutsche Bank National Trust Company was the trustee of the MBS Trust (RJN Ex 10 pg s-8) Barclays Bank PLC was the Swap and Cap Provider for the MBS Trust (RJN Ex 10 pg s -8). The manipulation of the LIBOR rates for the Swap traders profit on their positions as outlined in the text messages and emails by the US DOJ are admissions against interest to support plaintiffs claim of unlawful, unfair, and fraudulent conduct with regard to this trust in this lawsuit. (RJN) This MBS trust stopped reporting in 2008 during the time period that these manipulations were occurring showing a strong direct tie between the manipulation of plaintiffs monthly interest rate obligations and the profits made by the Swap agreement in place in the MBS trust. (RJN) Ms. Galope would have walked away from this loan if she had known that the interest rates she would have been forced to pay were based on manipulation and not independent market factors. (Decl of Galope) The modification agreement, initially was represented by the Defendants to be based on these same LIBOR figures. Then on June 25, 2012, a day before Barclays settled with the CFTC, USDOJ and others, Defendants came into this court asserting the modification agreement was based on a change in the monthly payment not the interest rate. (RJN) These events, taken in their totality, demonstrate a genuine dispute. F. Plaintiff Has Standing to Bring the UCL Claims: Plaintiff incorporates the above. Here, defendants transferred plaintiffs property in violation of a stay causing emotional distress.

Galope declared she also suffered emotional distress and incurred costs. (Decl of Galope) 24 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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The entire market that created the rate for the interest only payments being paid by the borrowers like Galope was manipulated by these defendants. (RJN) Plaintiff paid over $60,000.00 based on the fixed LIBOR rate. (Decl of Galope, RJN) The manner in which the contract was presented was deceptive causing lost property rights and money. (Decl of Galope, RJN) G. The Market Manipulation of the LIBOR rate and Deceptive Manner the Contract Was Presented Were Misleading Advertisements Plaintiff had multiple phone conversations with Barclays employee Taheera Franklin regarding her modification. (Decl of Galope) Plaintiff received the loan documents by fax. (Decl of Galope) The loan documents were actually legal size. (Def Moving Papers) Plaintiff had a LIBOR loan in the Barclays MBS trust. (RJN) Barclays manipulated the LIBOR market rate. (RJN) Barclays published this rate in the Wall Street Journal. (RJN) It was the rate used on Galopes Loan. (RJN) These events, taken in their totality, demonstrate a genuine dispute. H. There is Now Evidence To Add Defendants and Claims To Support the UCL

17200 and 17500 Aiding and Abetting Allegations: Plaintiff incorporates the above. I. The Release Cannot Waive Plaintiffs Rights Because It Would Be Against Public Policy To Do So. There is no Answer on file. (RJN) The claims are based on fraud, unlawful, unfair conduct. (RJN) The Adversary Proceeding was dismissed at the pleading stage without prejudice and not due to the merits of any claim. (RJN) IV CONCLUSION 25 PLAINTIFFS STATEMENT OF GENUINE DISPUTES
GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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Wherefore plaintiffs respectfully request that this court deny plaintiffs motion for summary judgment, allow discovery to proceed and grant plaintiffs application for leave to add parties and claims consistent with the new evidence discovered and used in this opposition. Dated: August 13, 2012 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT /s/ Lenore Albert________________________ LENORE L. ALBERT, ESQ. Attorney for Plaintiff Helen Galope, and those similarly situated

26 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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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 August 13, 2012, I served a copy of the following document(s) described as: PLAINTIFFS STATEMENT OF GENUINE DISPUTES On the interested parties in this action as follows: See attached Mail List [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 electronic mail at the e-mail address(es) set forth herein. [ ] 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: August 13, 2012 s/ Lenore Albert_____________________ Lenore Albert

27 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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Mailing List For Defendant Western Progressive, LLC and Defendant Deutsche Bank National Trust Company: Eric D. Hauser, 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 Email: sson@houser-law.com

Ford Defendant BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING: Scott H. Jacobs (SBN 81980) shjacobs@reedsmith.com Brandon W. Corbridge (SBN 244934) bcorbridge@reedsmith.com REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Telephone: 213.457.8000 Facsimile: 213.457.8080

28 PLAINTIFFS STATEMENT OF GENUINE DISPUTES


GALOPE v DEUTSCHE BANK NATIONAL TRUST COMPANY SACV12-323-CJC (RNBx)