Case 1:15-cv-00293-LTS-RWL Document 412-1 Filed 06/18/19 Page 1 of 7

EXHIBIT A
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FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW

June 4, 2019
Via Email

Robert D. Wick, Esq.

Christian Pistilli, Esq.
Covington & Burling LLP
One City Center
850 Tenth Street, NW
Washington, D.C. 20001-4956

Re: S&A Capital Partners, Inc., et al. v. JPMorgan Chase Bank, N.A.,
et al.
Civil Action No. 15-CV-293 (LTS) (RWL)

Dear Counsel:
We write regarding the emails and loan documents that Plaintiffs recently
received (JPMC-MRS-00387338 and SA00468846). As you are aware, these
documents were referenced in Plaintiffs’ reply in support of our motion for
summary judgment (Docket No. 394; “Reply”), Plaintiffs’ letter motion to file
excess pages (Docket No. 404; “Letter Motion”), and Defendants’ response to that
Letter Motion (Docket No. 407; “Response to Letter Motion”). We assume that
you have had the opportunity since our filings to acquaint yourselves with the
issues surrounding these documents.

To assure clarity, the specific documents are as follows:

1. JPMC-MRS-00387338, an email chain entitled “Lender’s Insurance

Funds” (“Insurance Emails”); and
2. SA00468846, a series of letters Chase sent to an MLPA borrower
indicating that the referenced loan had been fully satisfied (“Satisfaction
Letters”).

These new documents raise serious questions about the asserted

completeness of Defendants’ discovery production.

Foster, Walker & Di Marco, P.C. │ 350 Main Street, Third Floor, Malden, MA 02148
T 781-322-3700 │ F 781-322-3757 │ www.fwdlaw.net
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Covington & Burling
June 4, 2019
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As you know, Defendants and Defendants’ counsel made repeated, forceful

representations that Defendants’ document production was complete and accurate.
The discovery of not one, but two sets of new documents, render such
representations questionable, to the point of meaningless. As is clear, both of these
document collections contain unquestionably relevant records, all of which are
responsive to the discovery requests made by Plaintiffs in their First Request for
the Production of Documents to all Defendants. It is interesting to note here that
the documents discovered specifically address two main issues that have been
argued throughout this litigation:

1. Did each MLPA loan conform to the parties’ Agreement; and

2. Were any post sale payments withheld by Chase?

Defendants have been extremely verbose in their claims that Plaintiffs have
failed to prove exactly these issues. In fact, with respect to the Insurance Emails,
Chase has gone so far in its recent summary judgment filings to claim that the
exact allegations proven by these emails had not thus far been proven by the
Plaintiffs. Now those documents have mysteriously appeared after being
“mistakenly tagged as non-responsive.”

Accordingly, we write to demand that Chase clarify its explanations for the
lateness of the production of the Insurance Emails and explain in detail why Chase
specifically felt entitled to, and did, withhold the Satisfaction Letters.

In particular, please explain your assertion in your Response to Plaintiffs’

Letter Motion that it is “unsurprising” that the Satisfaction Letters were not
included in your custodial document production “because, among other things,
Plaintiffs agreed that the date range for custodial document productions would
begin no earlier than January 1, 2008.” As you are aware, Plaintiffs had
predecessor counsel at that time. Our office received the correspondence file
between prior counsel for Plaintiffs and Defendants. We reviewed this
correspondence and have spoken to prior counsel. However, we have not found,
and prior counsel is not aware of, any agreement by Plaintiffs that limits the date
range of Defendants’ custodial document production. Please provide us with a
copy of the communication that contains this agreement, or explain the
circumstances surrounding its consummation.

FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW
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Second, explain the process by which clearly responsive documents were

“mistakenly tagged as non-responsive” when the exact same email trail was
otherwise produced in a truncated format. You should further explain how the
representations made in your prior summary judgment filings -- that the insurance
proceeds were not received -- were verified prior to such representations being
made under oath. It is important to note here that this is the second instance in
which Chase has made claims in court filing specific to central allegations in this
litigation that later required correction. As you will remember, Mr. Zeeb
previously testified that MRS loans were not searchable in the RCV1 database, an
issue central to the Plaintiffs’ case, only later to require Mr. Zeeb’s correction. It is
now clear that factual statements by the Defendants are inconsistently truthful.

Third, Chase has certified and asserted throughout this case that, between the
iVault files and spreadsheets provided, Chase has surrendered all relevant loan
information. However, as is evidenced by the recently discovered additional
documents, either these documents were withheld intentionally, or Chase’s
production to date is simply not sufficient.

The Satisfaction Letters clearly show that Chase accepted full satisfaction of
a loan in 2006 and responded to customer inquiries and an OCC complaint
regarding that satisfaction in 2007. This information establishes that Chase sold
MRS a fully satisfied loan, in breach of Chase’s contractual obligations. It is
clear, therefore, that Chase’s method of production was flawed and incomplete;
unless, more nefariously, these are documents that were intentionally withheld. If
Chase has truly turned over all documents within iVault (which, according to
Chase’s representation to this Court, contains all loan documents), then these
relevant documents are not included in iVault. Therefore, it can only be assumed
that Chase possesses other relevant documents and information outside of iVault,
or Chase intentionally withheld relevant documents. Regardless, such
information is essential to Plaintiffs’ case and must now be produced. Once
again, it is worth noting that this, too, is another instance in which Chase has
discovered previously unproduced documents, the prior time being when Chase
admitted to only producing the “standard litigation file” in response to Plaintiffs’
requests. It appears that it is a common practice for Chase to withhold documents
even when there is no justification to do so.

The Insurance Emails are even more troubling as they catalog a protracted,
concerted and intentional effort made by Chase to withhold a substantial insurance

FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW
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payout that multiple Chase employees admitted rightfully belonged to MRS. The
Insurance Emails definitively show that this payment was received, a clearly
relevant fact. Also, this payment was omitted from the spreadsheet that Chase has
steadfastly insisted includes any and all monies received on the loans post-sale.
Once again, Chase’s consistent claim of a complete production is shown to be
inaccurate.

Together, these documents demonstrate that the methods Chase proffered to

determine the MLPA loans’ status and post-sale payments are severely deficient.
Despite Chase’s attestations “under penalty of perjury, that there is little
information that the View Activity reports could provide that would not otherwise
be in the materials already produced by Chase…”, it is clear that Chase’s claim is
wrong, intentionally or inadvertently (Docket No. 279, p 2). These documents also
encompass the exact type of notations that one would expect to find on the view
activity reports, which counsel described as “chronological entries on what
happened to the loans….” (Docket No. 277 22:12-13).

In light of the above, Plaintiffs believe that our previous request, and
subsequent denial, for a deposition pursuant to Fed. R. Civ. P. 30(b)(6) as it
pertains to the spreadsheets produced by Defendants should be reconsidered. The
information Chase provided is clearly deficient, as is the proffered declaration
made by Mark A. Shea on January 22, 2018. It is also clear that Chase failed to
examine all sources of information and documents within Chase’s control that
could contain the information Chase has conceded Plaintiffs are entitled to.
Despite the assertions that Chase’s production included all information in the View
Activity reports, View Summary reports, View Ledger reports and Boarding
Summaries, it obviously did not.

Therefore, in order to begin addressing Chase’s multiple failures, we request

that Chase provide at least the View Activity Reports for each loan discussed
herein -- loan numbers 100900426370526461 and 11713153 -- and we specifically
reserve the right to request additional View Activity Reports. We also request
Chase’s consent to a motion by Plaintiffs to file a sur-reply to Chase’s first partial
motion for summary judgment (Docket Nos. 301-304), to address the ramifications
of these newly discovered documents on Chase’s statute of limitations claims. If
these requests are agreed to, the Plaintiffs will alert the Court to the agreement of
the parties addressing Defendants’ failures. If not, we believe these issues should
be brought to the Court’s immediate attention.

FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW
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In summary, based on Chase’s failure to provide a full and complete

response to Plaintiffs’ discovery requests, the Plaintiffs seek the following:

(1) Written explanation:

a. As to the lateness of the production of the Insurance Emails and a

specific explanation as to why Chase withheld the Satisfaction
Letters;

b. As to Chase’s assertion that it is “unsurprising” that the

Satisfaction Letters were not included in Chase’s custodial
document production “because, among other things, Plaintiffs
agreed that the date range for custodial document productions
would begin no earlier than January 1, 2008.”;

c. As to the process by which clearly responsive documents were

“mistakenly tagged as non-responsive” when the exact email trail
was otherwise produced in a truncated format;

d. As to how the representations made in your prior summary

judgment filings -- that the insurance proceeds were not received --
were verified prior to such representations being made under oath;

(2) A copy of the communication that contains the agreement referenced in

Paragraph 1(b) above, or a written explanation regarding the circumstances
surrounding consummation of the agreement referenced in Paragraph 1(b) above;

(3) Consent to a deposition pursuant to Fed. R. Civ. P. 30(b)(6), as it

pertains to the spreadsheets produced by Defendants;

(4) Provide the View Activity Reports for at least loan numbers
100900426370526461 and 11713153; and

(5) Consent to a motion by Plaintiffs to file a sur-reply to Chase’s first

partial motion for summary judgment (Docket Nos. 301-304).

FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW
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June 4, 2019
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Please provide us with a time that you are available to discuss this matter.
As you are aware, with summary judgment motions pending, time is of the
essence. If we do not hear back from you by Thursday, June 6, 2019, at 3:00 p.m.,
we will seek assistance from the Court.

Very truly yours,

Foster, Walker & Di Marco, P.C.

/s/ Roberto L. Di Marco

Roberto L. Di Marco, Esq.
cc: Andrew Soukup, Esq.
Michael M. Maya, Esq.
Michael C. Nicholson, Esq.

FOSTER, WALKER & DI MARCO

ATTORNEYS AT LAW