In the Helen Galope matter- Plaintiffs Revised Statement of Genuine Issues

8/12/2019 In the Helen Galope matter- Plaintiffs Revised Statement of Genuine Issues

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PLAINTIFFS STATEMENT OF GENUINE DISPUTESGALOPE v DEUTSCHE BANK NATI ONAL TRUST COMPANY SACV12-323-CJC (RNBx)

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Moving Partys Facts and Evidence Opposing Partys Response and Supporting

Evidence

1. On December 16, 2006, Helen Galopeborrowed $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.

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

and Exhibit A; Free Writing Prospectus

FWP Ex 11 of RJN13; and LIBOR Rate

History Ex 8 of RJN 10.

2. The Loan was secured by a Deed ofTrust recorded against the real

property located at 19117 Delano

Street, Reseda, CA 91335 in the Los

Angeles County Recorders Office.

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.

3. In April 2007, HomEq began toservice the Loan for Deutsche Bank as

Trustee.

Disputed. Barclays Capital Real Estate, Inc.

was doing business as HomEq in 2007.

Barclays Capital Real Estate, Inc. was the

Case 8:12-cv-00323-CJC-RNB Document 72 Filed 08/13/12 Page 2 of 28 Page ID #:3269


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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.

4. By April 2008, Ms. Galope was$15,951.62 in arrears on the Loan.

Disputed.

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.

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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filed in this case which is already in the

Courts file.

6. The Modification Agreement containsa release provision and an integration

clause.

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.

7. On April 8, 2009, Ms. Galope madeher last modified payment on the

Loan.

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.

8. On August 17, 2011, Ms. GalopesChapter 13 bankruptcy was dismissed

and the automatic stay vacated.

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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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.

9. On September 1, 2011, the propertysold at foreclosure sale.

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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on September 1, 2011 17.

10.While the bankruptcy court reinstatedMs. Galopes Chapter 13 bankruptcy

case on August 30, 2011, the

bankruptcy court later dismissed this

bankruptcy case.

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.

11.Ms. Galope did not give WPT noticethat her Chapter 13 bankruptcy case

was reinstated on August 30, 2011

prior to the September 1, 2011

foreclosure sale.

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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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.

12.On March 27, 2012, the rescission ofthe September 1, 2011 foreclosure

sale was recorded in the Los Angeles

County Recorders Office.

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.

13.Ms. Galope declared under penalty ofperjury 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.

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 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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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.

14.Ms. Galope declared under the penaltyof 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.

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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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 Evidence in Support Thereof

1. Barclays and other banks manipulatedthe LIBOR rate from 2005 through

2009 when Galope obtained her

LIBOR Interest Only Adjustable Rate

Mortgage Loan at issue in this case.

Decl of William Matz; RJN 6-9. Ex 4-7, 13.

2. Deutsche Bank admitted that itsemployees were also involved in

manipulating the LIBOR rate during

this same time period.

RJN Ex.14-17



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3. Barclays and Deutsche Bank togetherhad control over the Mortgage Backed

Securitized Trust that Galopes loan

was created for and transferred into.

4. Karen Stacy is a paralegal forBarclays and has no personal

knowledge of the contents in her

declaration.

RJN 2-4 Ex 1-3.

5. Defendants knew that Galope did notknow the terms of her loan past 2013,

and even they, contended it was based

on adjustable interest after 2013.

RJN 1Motion 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 toDeutsche bank National Trust

Company, as trustee under Pooling

and Servicing Agreement dated as of

May 1, 2007 Securitized Asset-

Backed Receivables LLC Trust 2007-

BR4 Mortgage Pass-Through

Certificates, Series 2007-BR4.

Galope Decl; RJN 5

7. Barclays paid approximately $453million to settle with three agencies on

the LIBOR manipulation allegations

from 2005 through 2009.

RJN 6-9, Ex 4-7.



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8. Barclays admitted that it manipulatedor attempted to manipulate LIBOR.

RJN 8, Ex 6.

9. LIBOR rates were well under 8.775%when Ms. Galope received her loan at

issue in this case.

RJN 10 Ex 8.

10.LIBOR rates were well under 5.5%when Ms. Galope received her loan

modification at issue in this case.

RJN 10 Ex 8.

11.A rule 15 report was filed on March28, 2008 just two weeks before Ms.

Galope entered into a modified

interest only period with defendants

on her loan.

RJN 11 Ex 9.

12.Barclays and/or its subsidiary was thedepositor, servicer and Swap provider

and Deutsche Bank was the trustee of

the Mortgage Backed Securities Trust

that Ms. Galopes loan was transferred

into.

RJN 12-13 Ex 10-11.

13.There were 5,072 loans placed in thesame Mortgage Backed Securities

Trust along with Ms. Galopes loan.

RJN 13 Ex 11.

14.A substantial number of those loanswere LIBOR loans like Galopes and

the word LIBOR can be found 3,232

times in the FWP.

RJN 13 Ex 11.



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15.The words and phrases describing theterms of Ms. Galopes loan was

placed on legal size paper that would

not be printed out if faxed and

received on letter size paper.

Decl of Galope 8-15, Ex B.

16.Ms. Galope was informed that herpayments would go up or down

depending on the Market which

distressed her because she did not

know what that payment obligation

would be.

Decl of Galope 15-17

17.Ms. Galope did not receive any othercopy of her Loan Modification other

than the one that was faxed to her

which she received on letter size

paper.

Decl of Galope 18-25

18.Ms. Galope sought bankruptcyprotection because she was afraid that

the bank was going to rip her off when

they would not give her the loan terms

in writing.

Decl of Galope 29-32.

19.Ms. Galope has invested over$100,000.00 in the purchase of her

home.

Decl of Galope 33.

20.Ms. Galope was deprived of title toher home for months; and she

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 emotionallydistraught 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 ClaimDefendants 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 citeAllen v Wright, 468 US 737, 750 (1984) for their proposition that



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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. UnlikeAllen, 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 (9thCir 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 PlaintiffsInjury; that is, whether it was the type the antitrust laws wereintended to forestall

Galope is alleging price fixing by Deutsche Bank, Barclays and others. Galopes case is one of



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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 unlawfulper seunder 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 InjurySuch 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 HarmDefendants 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 loanby

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).



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As such, unlike Amarel, the nature of the harm is presumed.

4. The risk of Duplicative Harm; andHere, 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 unsupported 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 inthe 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



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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).



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That notice clearly stated:

I further understand this request DOES NOT impose any obligation on the Court, thedebtors 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 othermeans 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 dutyto 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.

InHatch v Collins, 225 CalApp3d 1104 (1990), the Court explained, A trustee has a general

duty to conductthe sale fairly, openly, reasonably and with due diligence, exercising sound discretion

to protect the rights ofthe mortgagor and othersA breach of the trustees duty to conductan 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.



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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 soughtwhich 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 FraudulentSame 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 noticewith

regard to the Automatic Stay on Tuesday August 30, 2011which defendants attorney received

through the ECF system. (RJN). Yet, defendant still took the home on two days later on Thursday

September 1, 2011by 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

monthsthat duration of distress warrants substantial emotional distress damages. (Decl of Galope)




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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 offaxinga 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 afax(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.



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Barclays does not refute that they received only Galopesletter 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

signingmaking 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.



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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, 2012that 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.


D. Barclays Market Manipulation of the LIBOR rate index was an Unlawful, Unfair andFraudulent 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, 2012Barclays 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)



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As such, Galopes loan and monthly obligations were not based on an independent index. The

depositors administrator, Barclays, who was also the servicer and Swap traderof 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.

(RJN).

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.



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

7)

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)


F. Plaintiff Has Standing to Bring the UCL Claims:Plaintiff incorporates the above.

Here, defendants transferred plaintiffs propertyin violation of a stay causing emotional distress.

(RJN)

Galope declared she also suffered emotional distress and incurred costs. (Decl of Galope)



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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 WasPresented 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)


H. There is Now Evidence To Add Defendants and Claims To Support the UCL17200 and 17500 Aiding and Abetting Allegations:

Plaintiff incorporates the above.

I. The Release Cannot Waive Plaintiffs RightsBecause It Would Be Against PublicPolicy 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



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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/ECFI 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 EMAILI caused such document(s) to be transmitted to the office(s) of the addressee(s) listedabove by electronic mail at the e-mail address(es) set forth herein.[ ] BY FAXI caused such document(s) to be transmitted facsimile from the offices located inWestminster, 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 Statesof America that the foregoing is true and correct.

Dated: August 13, 2012s/ Lenore Albert_____________________Lenore Albert



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Mailing List

For Defendant Western Progressive, LLC andDefendant Deutsche Bank National Trust Company:

Eric D. Hauser, Esq.Steven S. Son, Esq.HOUSER & ALLISON3760 Kilroy Airport Way, Suite 260Long Beach, CA 90806Telephone: (949) 679-1111Fax: (949) 679-1112Email: [email protected]

Ford Defendant BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQSERVICING:

Scott H. Jacobs (SBN 81980)[email protected] W. Corbridge (SBN 244934)

[email protected] SMITH LLP355 South Grand Avenue, Suite 2900Los Angeles, CA 90071-1514Telephone: 213.457.8000Facsimile: 213.457.8080
