CASE FILE California Class Action

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Feder al di st r i c t c our t j udge gr ant s c l ass c er t i f i c at i on i n mor t gage appr ai sal sui t
Goodw i n Pr oc t er LLP
Anax et Y. J ones and Cr yst al N. J ohnson
USA
May 1 2012
The United States District Court for the Northern
District of California granted class certification in a
mortgage loan appraisal suit alleging defendants
conspired to inflate appraisals to increase the sale of loans in the
secondary market. The Court found that plaintiffs presented sufficient evidence to establish common questions of fact and law, holding that
common questions and answers need not uniformly apply to all class members. The Court also found that the analysis of individual appraisal
fees would not create individualized issues, but instead would provide additional support for plaintiffs claims that an inflated appraisal scheme
existed. Finally, the Court also held that the Real Estate Settlement Procedures Acts treble damages, attorneys fees and government
enforcement mechanisms did not make class action an inferior method of litigation. Click here for the opinion.

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Homeowners Win Cert. In WaMu Mortgage
Appraisal Suit
By Lana Bi r br ai r
Law360, New York (April 25, 2012, 10:28 PM ET) -- A California federal judge on
Wednesday certified a class in a suit claiming Washington Mutual Bank and First American
eAppraiseIT conspired to inflate appraisal values so that WaMu could sell securitized
mortgage loans at artificially higher prices.

After class certification was denied without prejudice in 2010, U.S. District Judge Ronald M.
Whyte on Wednesday granted the class's motion for certification, finding the plaintiffs had
successfully shown the alleged inflation of appraisal values in the aggregate could be
established by common proof. The judge certified a class of all consumers nationwide who
received home loans from WaMu since June 2006 in connection with appraisals obtained
through eAppraiseIT.

"We appreciate the court's ruling, which is thoughtful and well-reasoned," said J. Mark
Moore of Spiro Moore LLP, an attorney for the plaintiffs. "Of course, there remains much to
be done in the case, but this is an important step toward justice for the class."

The suit, launched in 2008, alleges that beginning in June 2006, WaMu conspired with
eAppraiseIT to inflate the appraised value of properties covered by mortgage loans so the
banks could sell the aggregated security interests in those properties at inflated prices, in
violation of the Real Estate Settlement Procedures Act.

Although home purchases were traditionally financed through third-party lenders who held
security interests in properties, based on professional appraisals, until their loans were
repaid, banks in recent years began selling loans to other financial institutions rather than
hold on to them, according to the order. This behavior gave banks an incentive to seek
higher appraisals for the mortgaged properties, the suit says.

The class accused WaMu of demanding that all appraisals be performed by those on an
approved list and then reserving the contractual right to challenge appraisals by requesting
a reconsideration of value, which the bank then used to get eAppraiseIT and Lender
Service Inc. to increase appraisal values. Lender Service has since been dismissed from
the suit.

WaMu also allegedly asked eAppraiseIT and Lender Service to hire former WaMu
employees as appraisal business managers with the authority to override values
determined by third-party appraisers. The two companies then altered reports to include
higher property values, remove negative references and otherwise comply with the bank's
wishes, according to the suit.

In certifying the class, Judge Whyte found that the plaintiffs had successfully alleged that a
Page 1 of 2 Homeowners Win Cert. In WaMu Mortgage Appraisal Suit - Law360
4/27/2012 http://www.law360.com/articles/334296/print?section=classaction
single, overriding agreement between WaMu and eAppraiseIT existed and had shown
enough evidence to infer a conspiracy, despite WaMu's objections that its relationship with
eAppraiseIT fluctuated and was at times contentious, creating various circumstances that
would need to be addressed individually.

Representatives for the defendants were not immediately available to comment
Wednesday.

The plaintiffs are represented by J. Mark Moore and Robert Ira Spiro of Spiro Moore LLP,
the Law Offices of Janet Lindner Spielberg, Joseph N. Kravec Jr. of Stember Feinstein
Doyle Payne & Kravec LLC, and Michael D. Braun of the Braun Law Group PC.

Washington Mutual is represented by Jonathan M. Lloyd, Stephen M. Rummage and Martin
L. Fineman of Davis Wright Tremaine LLP. EAppraiseIT is represented by Jeffrey D.
Rotenberg, Kerry Ford Cunningham, Carter Winford Ott, David F. Gross, Francesca Leigh
Cicero, Patrick J. Smith and Richard F. Hans of DLA Piper.

The case is Spears et al. v. Washington Mutual Inc. et al., case number 5:08-cv-00868, in
the U.S. District Court for the Northern District of California.

--Editing by Kat Laskowski.
All Content 2003-2012, Portfolio Media, Inc.
Page 2 of 2 Homeowners Win Cert. In WaMu Mortgage Appraisal Suit - Law360
4/27/2012 http://www.law360.com/articles/334296/print?section=classaction
Issue Dale: RESPA News Monthly
April 2009, Posted On: 4/17/2009
Case Law
Judge finds inflated appraisals violate RESPA
A California district courl jooge found that alleged appraisal5 ";alaled RESPA saying the infl ated prices were
"things olvalue." The judge dismissed other clams hroLght forth in this class acijon, indLdirg another RE$PA
>liolation, breach of contract, 'oIiolalion al tha California Business and Professions Code and California's Consll'Tler
legal Remedies kt.
The case is: Fellon A Spears, Jr and Sidney Selld!, el al. v. Washington MllUallnc., Forsl American eApptaise/T
and Lender:S $ervlC6slnc. (No. C-OBOO868 RWI). Judge Ronald M. Whyte oltha U.S. Northern
Dislrictol California. San Jose stbniHed his qli rion on the case March 9, 2009. Wh)'le considellld
eAppraiselTs and LSI's pending motions to dismiss.
A scheme to In/ late apprai sals?
Fellon Spears and Sidney Schol l fi led a lawsuit against Washington MJlual Bank FA, First .t>merican eilppraisalT,
and Lende(s SeNice Inc, (LSI) alleging they participated in a scheme to prollide home loan borro_1S with inflated
appraisals of the property they sought to purchase, The suit was filed on henalfof alf consumelS in Califomia who
recei...:!d home loans from Washington Mltual on or after June 1,2006, with ar:praisals Obtained through eAppraiselT
or LSI.
kcordi ng to lhe amended complailt. home purchases in the United States ha"" tradibonallybeen financed
through a lhird-partylender who retains ase(1lrity interest in the pmpertyuntil the loan is repad.ln order to ensure
that the secured lender >Mil recoup the value of lhe loan if the borrower defaults , the lender generally requires that lhe
property be profess ionaly apprais ed.
The plaintiffs al aged lhat in June 2006, Washington MllUal, with eAppraiselT and LSI, began a scheme to innate lhe
appraised values of homes, receilling loans in order 10 sell the aggregated s eCUlity interests in the financial markets
at inflated prices . kcording to the complaint, banks like Was tington Mltual changed from a busi ness model in wtich
they held the mortgage loans unti repaid, 10 one where they sot! the loans to institutions . This "paradigm
stilt: according to the plai ntiffs, Cfeated an Incenb; for the hank to seek hiftler awrais aIs in higher 'o(Ilume.
Pccording \0 the court, the plaintilfs' complaint described a sdleme in whidl Washington MJtual allegedyconspired
to inftate the appraised wlue of propertyundefl)'ing theirmortl)age loans , In 2005, Wash llgton MJtual retalled
and LSI \0 administer the oonk's appraisal progran. and LSI ha>e since perfolmed amost
all o/Washlngton MJtual's appraisal>, and the bank's bortOwers have become ar'(l LSi's largest source
olbusiness.
The a' egad that Washingtcn MJlual created a list of 'preferred appraisers" 10 perform apprais<lls lOr the
bank's OOrrowe/S. Washington MJtual also maintained right with those appraisers to eIla' enge an
appraisal tlyrequestng a "reconsidemtion 01 value" (knM as an ROV). The plaintiffs claimed Washington MJtual
woul! use the ROVlo gel and LSI 10 increase the appraisal value of property. In addWon, Washnglon
MJlual requested Ihal and LSI hire "appraisal busness managers: who were given aulhoritylo override
Ihe values detelmined by Ihird-party appraiselS.
Aller the compiaint was filed, the Federal Deposit Insurance Corporation was substituted as a ,eceil'8r 10,
Washi ngton MJlual , and the plantiffs later stip.llated 10 dismiss al claims the FDIC.
Applying RESPA
The plantiffs a' egad that the delendan'5 two pro""sions 01 RESPA: 12 U.S.C. 2607{a) and 2607tb). The
defendan'5 argued that the complaint failed 10 state a claim under both p ro.,;s ions
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Revi ew s
Sel ec t ed met adat a
I dent i f i er : gov.uscourts.cand.200212
Assi gned -t o: Hon. Ronald M. Whyte
Case-c ause: 28:1331 Fed. Question
Case-name: Spears et al v. Washington Mutual, Inc. et al
Cour t : cand
Dat e -c ase-f i l ed: 2008-02-08
Doc k et -num: 5:08-cv-00868
J ur i sdi c t i on: Federal Question
J ur y -demand: Plaintiff
Medi at ype: texts
Nat ur e-of -sui t : 190 Contract: Other
Pac er -c ase-num: 200212
Ref er r ed-t o: Magistrate Judge Howard R. Lloyd
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Case docket : Spears et al v. Washingt on Mut ual, I nc. et al
ht t p: / / ia600204.us.archive.org/ 12/ it ems/ gov.uscourt s.cand.200212/ gov.uscourt s.cand.200212.docket .ht ml[ 5/ 14/ 2012 11: 42: 17 AM]
Case det ai l s
Cour t : cand
Docket # : 5: 08-cv-00868
Case Name: Spears et al v. Washingt on Mut ual, I nc. et al
PACER case # : 200212
Dat e f i l ed: 2008-02-08
Assi gned t o: Hon. Ronald M. Whyt e
Ref er r ed t o: Magist rat e Judge Howard R. Lloyd
Case Cause: 28: 1331 Fed. Quest ion
Nat ur e of Sui t : 190 Cont ract : Ot her
Jur y Demand: Plaint iff
Jur i sdi ct i on: Federal Quest ion
Par t i es
Repr esent ed Par t y At t or ney & Cont act I nf o
Felt on A Spears, Jr.
Plaint iff
on behalf of t hemselves and all ot hers similarly sit uat ed
Ira Spiro
Spiro Moss LLP
11377 W. Olympic Blvd
Fifth Floor
Los Angeles, CA 90064-1683
310-235-2468
Fax: 310-235-2456
Email: Ira@SpiroMoss.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
James Mark Moore
Spiro Moss Barness LLP
11377 West Olympic Boulevard, 5th Floor
Los Angeles, CA 90064
310-235-2468
Fax: 310-235-2456
Email: mark@spiromoss.com
LEAD ATTORNEY
Janet Lindner Spielberg
Law Offices of Janet Lindner Spielberg
Suite 400
12400 Wilshire Boulevard
310-392-8801
Fax: 310-278-5938
Email: jlspielberg@jlslp.com
LEAD ATTORNEY
Joseph N. Kravec , Jr.
Stember Feinstein Doyle Payne & Cordes, LLC
Allegheny Building, 17th Floor
429 Forbes Avenue
Pittsburgh, PA 15219
412-281-8400
Fax: 412-281-1007
Email: jkravec@stemberfeinstein.com
LEAD ATTORNEY
Michael D. Braun
Braun Law Group, P.C.
10680 West Pico Boulevard, Suite 280
310-836-6000
Fax: 310-836-6010
Email: service@braunlawgroup.com
LEAD ATTORNEY
Robert Ira Spiro
Spiro Moss LLP
Fifth Floor
(310) 235-2468
Fax: 310-235-2456
Email: ira@spiromoss.com
LEAD ATTORNEY
Sidney Scholl
Plaint iff
on behalf of t hemselves and all ot hers similarly sit uat ed
Ira Spiro
(See above for address)
LEAD ATTORNEY
James Mark Moore
LEAD ATTORNEY
LEAD ATTORNEY
LEAD ATTORNEY
Michael D. Braun
LEAD ATTORNEY
Robert Ira Spiro
LEAD ATTORNEY
Mr. Juan Bencosme
Plaint iff
Mrs. Carmen Bencosme
Plaint iff
Federal Deposit I nsurance Corporat ion
Receiver
as Receiver for Defendant Washingt on Mut ual Bank TERMI NATED: 02/ 12/ 2009
Jonathan Mark Lloyd
Davis Wright Tremaine LLP
505 Montgomery Street
Suite 800
San Francisco, CA 94111-6533
415-276-6500
Fax: 415-276-6599
Email: jonathanlloyd@dwt.com
LEAD ATTORNEY
PRO HAC VICE
David A. Super
Baker Botts LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20004-2400
202-639-7768
Email: david.super@bakerbotts.com
PRO HAC VICE
Ryan E. Bull ,
Baker Botts LLP
202-639-7986
Fax:
Email: Ryan.Bull@bakerbotts.com
PRO HAC VICE
Sam N. Dawood
Suite 800
San Francisco, CA 94111
(415) 276-6500
Email: samdawood@dwt.com
Stephen M. Ng
Baker Botts LLP
202-639-7704
Fax: 202-585-4075
Email: stephen.ng@bakerbotts.com
PRO HAC VICE
Stephen Michael Rummage
Suite 800
415-276-6500
Fax: 415-276-6599
Email: steverummage@dwt.com
PRO HAC VICE
Washingt on Mut ual, I nc.
Defendant
a Washingt on corporat ion TERMI NATED: 05/ 01/ 2008
Jonathan Mark Lloyd
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
206-757-8088
Fax: 206-757-7088
LEAD ATTORNEY
Robert J. Pfister
Simpson Thacher & Bartlett LLP
1999 Avenue of the Stars, 29th Floor
310-407-7500
Fax: 310-407-7502
Email: rpfister@stblaw.com
LEAD ATTORNEY
1201 Third Avenue
Suite 2200
206-622-3150
Fax: 206-757-7700
LEAD ATTORNEY
PRO HAC VICE
Jonathan Mark Lloyd
Martin L. Fineman
Suite 800
415-276-6500
Fax: 415-276-6599
Email: martinfineman@dwt.com
Jeffrey D. Rotenberg
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, NY 10020-1104
212-335-4556
Fax: 917-778-85561251
Email: jrotenberg@tpw.com
LEAD ATTORNEY
PRO HAC VICE
Kerry Ford Cunningham
DLA Piper LLP (US)
New York, NY 10020
212-335-4668
Fax: 917-778-8668
Email: kerry.cunningham@dlapiper.com
LEAD ATTORNEY
First American Eappraiseit
Defendant
a Delaware corporat ion
PRO HAC VICE
Laura Jean Fowler
McDonough Holland & Allen PC
500 Capitol Mall, 18th Floor
Sacramento, CA 95814
(916) 444-3900
Fax: (916) 444-8334
Email: lfowler@mhalaw.com
LEAD ATTORNEY
Patrick J. Smith
DLA Piper LLP (US)
New York, NY 10020-1104
212-335-4556
Fax: 917-778-85561251
Email: psmith@tpw.com
LEAD ATTORNEY
PRO HAC VICE
Richard F. Hans
Thacher Proffitt & Wood LLP
2 World Financial Center
Invalid email address as of 03/31/10
New York, NY 10281
212-912-7885
Fax: 212-912-7751
Email: invalidaddress@invalidaddress.com
LEAD ATTORNEY
PRO HAC VICE
Michael T. Fogarty
McDonough Holland & Allen
500 Capitol Mall
18th Floor
916-444-3900
Fax: 916-444-3249
Email: tfogarty@mhalaw.com
Christopher J Clark
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8000
Fax: 212-259-6333
Email: cjclark@dl.com
LEAD ATTORNEY
PRO HAC VICE
Kevin C Wallace
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8000
Fax: 212-259-6333
Email: kwallace@dl.com
LEAD ATTORNEY
Lender Service, I nc.
Defendant
PRO HAC VICE
Kris Hue Chau Man
Dewey & LeBoeuf LLP
One Embarcadero Center
Suite 400
415-951-1100
Email: kman@dl.com
LEAD ATTORNEY
Margaret Anne Keane
Dewey & LeBoeuf LLP
Suite 400
415-951-1100
Fax: 415-951-1180
Email: mkeane@dl.com
LEAD ATTORNEY
Angela M. Papalaskaris
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8235
Fax: 212-259-6333
Email: apapalas@dl.com
PRO HAC VICE
Kris Hue Chau Man
Washingt on Mut ual Bank FA
Defendant
also known asWashingt on Mut ual Bank
Jonathan Mark Lloyd
LEAD ATTORNEY
Martin L. Fineman
LEAD ATTORNEY
Sam N. Dawood
LEAD ATTORNEY
LEAD ATTORNEY
Jonathan Mark Lloyd
Document s
Dat e
Fi l ed
Document
#
At t achment
#
Shor t
Descr i pt i on
Long Descr i pt i on
Upl oad
dat e
SHA1 hash
2008-
02-
08
1 0 Complaint
CLASS ACTI ON
COMPLAI NT for
Damages, Equit able,
Declarat ory and
I nj unct ive Relief
(Summons I ssued);
j ury demand;
against all
defendant s ( Filing
fee $ 350, receipt
number
54611002547). Filed
by Felt on A Spears,
Jr, Sidney Scholl.
(bw, COURT STAFF)
(Filed on 2/ 8/ 2008)
(Ent ered:
02/ 08/ 2008)
2010-
02-16
15: 06: 00
80b8e09f0e698e53ddbb501dd7d137c95766d049
2008-
02-
08
2 0
ADR
Scheduling
Order
ADR SCHEDULI NG
ORDER: Case
Management
St at ement due by
5/ 20/ 2008. Case
Management
Conference set for
5/ 27/ 2008 01: 30
PM. (bw, COURT
STAFF) (Filed on
2/ 8/ 2008) (Ent ered:
02/ 08/ 2008)
2009-
08-02
22: 46: 49
bafba2011e7b09f66e10f3f9f291a06fb9134e6e
2008-
02-
13
3 0
Mot ion for
Pro Hac Vice
Applicat ion for
Admission t o appear
in Pro Hac Vice for
at t orney Joseph N.
Kravec, Jr. ( Filing
fee $ 210, receipt
number
54611002591) filed
Jr, Sidney Scholl.
(bw, COURT STAFF)
(Filed on
2/ 13/ 2008)
(Ent ered:
02/ 14/ 2008)
2009-
08-02
22: 50: 00
f14d677cd16c85a6770e713844c3c89020d16b03
CERTI FI CATI ON of
2008-
02-
13
4 0
Cert ificat e of
Service
Joseph N. Kravac,
Jr. in Support of his
Applicat ion for
Admission Pro Hac
Vice by Felt on A
Spears, Jr, Sidney
Scholl re 3 ( Filing
fee $ 210, receipt
number
54611002591) (bw,
COURT STAFF)
(Filed on
2/ 13/ 2008)
(Ent ered:
02/ 14/ 2008)
2009-
08-02
22: 44: 31
800f9b824ee92b5e277e62f4771a28cabd231afb
2008-
02-
15
5 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
grant ing 3 Mot ion
for Pro Hac Vice as
t o Joseph N.
Kravec, Jr. (hrllc2,
COURT STAFF)
(Filed on
2/ 15/ 2008)
(Ent ered:
02/ 15/ 2008)
2009-
08-02
22: 53: 02
8ec6d0131c298ed9e48d40f5b866ae94be78da50
2008-
02-
15
6 0
Not ice
(Ot her)
MDL Filing by
Washingt on Mut ual,
I nc. (At t achment s:
# 1 Mot ion t o
Transfer, # 2 Brief
in support of Mot ion
t o Transfer, # 3
Schedule of Act ions,
# 4 Not ice of
Appearance, # 5
WaMu's Corporat e
Disclosure
St at ement , # 6
Not ice of Tag-Along
Act ion) (Pfist er,
Robert ) (Filed on
2/ 15/ 2008) Text
modified on
2/ 19/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
02/ 15/ 2008)
2009-
08-02
22: 46: 54
53e500751dee13ab5393e118bed76a877b03f44b
PROOFS OF
SERVI CE of
Summons and
Complaint on
Defendant s
2008-
02-
29
7 0
Cert ificat e of
Service
I nc., First American
Eappraiseit and
Lender's Service,
I nc. re ( 1 ), ( 2 )
Jr, Sidney Scholl
(At t achment s: # 1
Exhibit A, # 2 Proof
of Service )
(P(Braun, Michael)
(Filed on
2/ 29/ 2008) Text
modified on
3/ 3/ 2008
conforming t o
post ed document
capt ion, linkage
added, Proof of
services submit t ed
on form for Cent ral
Dist rict of California
(bw, COURT
STAFF). (Ent ered:
02/ 29/ 2008)
2009-
08-02
22: 49: 35
991a75d32432acf335504968c73ce6e927f88996
2008-
03-
03
8 0
Not ice
(Ot her)
Cert ificat ion of
Denial of MDL
Transfer by Felt on A
Spears, Jr, Sidney
Scholl
Exhibit 1, # 2
Exhibit 2) (Kravec,
Joseph) (Filed on
3/ 3/ 2008) Text
modified on
3/ 3/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
03/ 03/ 2008)
2009-
08-02
22: 45: 16
495312981710b7c92f7fec67b7d23fc70d0e8d1f
2008-
03-
11
9 0 St ipulat ion
STI PULATI ON and
(Proposed) Order
Ext ending Time t o
Answer or
Ot herwise Respond
re 1 by Washingt on
Mut ual, I nc.
(Fineman, Mart in)
(Filed on
3/ 11/ 2008) Text
modified on
3/ 12/ 2008
conforming t o
post ed document
2009-
08-02
22: 52: 39
039b3ef304ad0d117f41f00db5f5ffb71378afb1
capt ion (bw, COURT
STAFF). (Ent ered:
03/ 11/ 2008)
2008-
03-
12
10 0 Errat a
ERRATA t o
St ipulat ion and
[ Proposed] Order
Ext ending Time t o
Answer or
Ot herwise Respond
re 9 by Washingt on
Mut ual, I nc.
(Fineman, Mart in)
(Filed on
3/ 12/ 2008) Text
modified on
3/ 13/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
03/ 12/ 2008)
2009-
08-02
22: 41: 58
ce3fa6925ff54719cc6a1b5ecafcd8adf9aa3321
2008-
03-
14
11 0
St ipulat ion
and Order
STI PULATI ON AND
ORDER Ext ending
Time t o Answer or
Ot herwise Respond.
Plaint iffs' amended
complaint shall be
filed by 3/ 19/ 2008.
Defendant s t o have
30 days from
service t o answer or
ot herwise respond.
I nt ial case
management
conference remains
set for 5/ 27/ 2008.
Signed by
Magist rat e Judge
Howard R. Lloyd on
3/ 14/ 2008. (hrllc2,
COURT STAFF)
(Filed on
3/ 14/ 2008)
(Ent ered:
03/ 14/ 2008)
2009-
08-02
22: 40: 56
94deef7ae8ce536d1412938f0c64bf1064baa4f2
2008-
03-
19
12 0 St ipulat ion
STI PULATI ON and
[ Proposed] Order
Re: (1) Ext ending
Time t o File an
Amended
Complaint ; (2)
Modifying t he Case
Management
Conference Dat e by
(Spielberg, Janet )
2009-
08-02
22: 50: 05
d674b8117dd88274d1bee12e1e775f16ed61c613
(Filed on
3/ 19/ 2008)
(Ent ered:
03/ 19/ 2008)
2008-
03-
28
13 0
St ipulat ion
and Order
STI PULATI ON AND
ORDER Ext ending
Time t o File
Amended
Complaint . Plaint iffs
t o file amended
complaint by
3/ 28/ 2008.
Defendant s' answer
or ot her response
due by 5/ 2/ 2008.
I nit ial case
management
conference set for
5/ 27/ 2008. Signed
by Magist rat e Judge
Howard R. Lloyd on
3/ 28/ 2008. (hrllc2,
COURT STAFF)
(Filed on
3/ 28/ 2008)
(Ent ered:
03/ 28/ 2008)
2009-
08-02
22: 52: 31
f3a584074a5b7cd3bb3584264f722e7e6160d568
2008-
03-
28
14 0
Amended
Complaint
First Amended
Complaint for
Damages, Equit able,
Declarat ory and
I nj unct ive Relief;
Demand for Jury
Trial against
I nc. Filed by Sidney
Scholl. (Spiro,
Robert ) (Filed on
3/ 28/ 2008) Text
modified on
3/ 31/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
03/ 28/ 2008)
2009-
08-02
22: 44: 34
2e0ff9fd5958df24ebfa35cafa5db927ccdcdc58
2008-
04-
01
15 0
Summons
I ssued
Summons I ssued as
t o Washingt on
Mut ual, I nc., First
American
Eappraiseit ,
Washingt on Mut ual
Bank FA, Lender
Service, I nc. re
Amended Complaint
(bw, COURT STAFF)
2009-
08-02
22: 42: 44
85f8e323e3a0ce2b7acc7ab97e95f0ff6a3cb0c7
(Filed on 4/ 1/ 2008)
(Ent ered:
04/ 01/ 2008)
2008-
04-
03
16 0
Not ice of
Appearance
NOTI CE of
Appearance by Kris
Hue Chau Man on
behalf of LSI
Appraisal, LLC (Man,
Kris) (Filed on
4/ 3/ 2008) (Ent ered:
04/ 03/ 2008)
2009-
08-02
22: 48: 57
77fa96e29211e2990b178c75c11da8ea8ca4cce4
2008-
04-
03
17 0
Not ice of
Appearance
NOTI CE of
Appearance by
Margaret Anne
Keane on behalf of
LSI Appraisal, LLC
(Keane, Margaret )
(Filed on 4/ 3/ 2008)
(Ent ered:
04/ 03/ 2008)
2009-
08-02
22: 48: 23
f883bfed21e3902b80515b4a48432adca663fe43
2008-
04-
10
18 0
Mot ion for
Pro Hac Vice
Applicat ion for leave
t o appear in Pro
Hac Vice for
At t orney Pat rick J.
Smit h ( Filing fee $
210, receipt number
54611002943) filed
by First American
EappraiseiT. (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 50: 47
9d4cd99df2414b7e5ec0b29391ae79d44e35dd82
2008-
04-
10
19 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
At t orney Pat rick J.
Smit h re 18 by First
American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 47: 27
61dcc3cb864161f5389d57710d9a97d334828a92
2008-
04- 20 0
Mot ion for
t o appear in Pro
Hac Vice for
At t orney Richard F.
Hans ( Filing fee $
210, receipt number
54611002943) filed
2009-
08-02 cce25eaaf87d1bd6a7c62f1152755d1c9fa07cda
10
Pro Hac Vice by First American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
22: 50: 16
2008-
04-
10
21 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
At t orney Richard F.
Hans re 20 by First
American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 45: 58
0610b903b338512941d049c29aa7c72114c0b86c
2008-
04-
10
22 0
Mot ion for
Pro Hac Vice
t o appear in Pro
Hac Vice for
At t orney Kerry Ford
Cunningham ( Filing
fee $ 210, receipt
number
54611002943) filed
by First American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 45: 11
5861822e29868504f1259a7bfbd58f47ebae3fef
2008-
04-
10
23 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
At t orney Kerry Ford
Cunningham re 22
by First American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 43: 26
e232b336861b8cab8f6c680908362a51ec1c5549
t o appear in Pro
Hac Vice for
At t orney Jeffrey D.
Rot enberg ( Filing
fee $ 210, receipt
2008-
04-
10
24 0
Mot ion for
Pro Hac Vice
number
54611002943) filed
by First American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 44: 59
e5de59f14dc7ad3471c40d694d1eba2610c1209a
2008-
04-
10
25 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
At t orney Jeffrey D.
Rot enberg re 24 by
First American
Eappraiseit . (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 49: 17
379acdcf4f6c380a9386d7140b22645a9351db87
2008-
04-
10
26 0
Cert ificat e of
Service
CERTI FI CATE OF
SERVI CE by First
American
Eappraiseit re 20 ,
24 , 22 and 18 (bw,
COURT STAFF)
(Filed on
4/ 10/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 47: 36
de9ca732b4c6e09efdaef7374ffda06b3df72e40
2008-
04-
11
27 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
grant ing 20 Mot ion
for Pro Hac Vice as
t o Richard F. Hans.
(hrllc2, COURT
STAFF) (Filed on
4/ 11/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 43: 01
42d1ef86e9009e7d779c85c022b1b023d777fed1
2008-
04-
11
28 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o Kerry Ford
Cunningham.
(hrllc2, COURT
STAFF) (Filed on
4/ 11/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 43: 23
156d5426c7b777fd45590896ca92203d7d22a744
2008-
04-
11
29 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o Jeffrey D.
Rot enberg. (hrllc2,
COURT STAFF)
(Filed on
4/ 11/ 2008)
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 43: 08
db56d309899dece6e51d3fab33a13c6f57e0052e
2008-
04-
11
30 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o Pat rick J. Smit h.
(hrllc2, COURT
STAFF) (Filed on
4/ 11/ 2008) (hrllc2,
COURT STAFF).
(Ent ered:
04/ 11/ 2008)
2009-
08-02
22: 47: 20
d9913e1c45d2dd992bd6476045031b5b3104faaa
2008-
04-
15
31 0
Mot ion for
Pro Hac Vice
t o appear in Pro
Hac Vice for
at t orney Jonat han
M. Lloyd ( Filing fee
$ 210, receipt
number
54611002960) filed
by Washingt on
Mut ual, I nc. (bw,
COURT STAFF)
(Filed on
4/ 15/ 2008)
(Ent ered:
04/ 15/ 2008)
2009-
08-02
22: 47: 00
a3a47b8dd23dca29687dbaa23ce72686d05725e5
2008-
04-
15
32 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
at t orney Jonat han
M. Lloyd re 31 (
Filing fee $ 210,
receipt number
54611002960) by
I nc. (bw, COURT
STAFF) (Filed on
4/ 15/ 2008)
(Ent ered:
04/ 15/ 2008)
2009-
08-02
22: 48: 01
fb1e0e93fd3340a75424f98770ba38b5cf288a4f
2008-
04-
15
33 0
Mot ion for
Pro Hac Vice
t o appear in Pro
Hac Vice for
at t orney St ephen M.
Rummage ( Filing
fee $ 210, receipt
number
54611002961) filed
by Washingt on
Mut ual, I nc. (bw,
COURT STAFF)
(Filed on
4/ 15/ 2008)
(Ent ered:
04/ 15/ 2008)
2009-
08-02
22: 51: 38
565ea5b067ddf9225dfddbc88b142a06642454d0
2008-
04-
15
34 0
Received
Document
Received (Proposed)
Order Grant ing
t o appear in Pro
Hac Vice for
at t orney St ephen M.
Rummage re 33 (
Filing fee $ 210,
receipt number
54611002961.) by
I nc. (bw, COURT
STAFF) (Filed on
4/ 15/ 2008)
(Ent ered:
04/ 15/ 2008)
2009-
08-02
22: 49: 44
66390ad9dc865cfbb49643e58d4237151f7af726
2008-
04-
16
35 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o Jonat han M.
Lloyd. (hrllc2,
COURT STAFF)
(Filed on
4/ 16/ 2008)
(Ent ered:
04/ 16/ 2008)
2009-
08-02
22: 44: 54
d6c39ad005bab96cb4f17d14c5152d57eb14a585
2008-
04-
16
36 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o St ephen M.
Rummage. (hrllc2,
COURT STAFF)
(Filed on
4/ 16/ 2008)
(Ent ered:
04/ 16/ 2008)
2009-
08-02
22: 50: 59
b3395519d9ecaac7d219714fafb74b9665ea7cd3
CERTI FI CATE OF
2008-
04-
16
37 0
Cert ificat e of
Service
SERVI CE by
I nc. re 34 Received
Document , 32
Received Document
Pro Hac Vice
Applicat ions and
Orders for St ephen
Rummage and
Jonat han Lloyd
(Fineman, Mart in)
(Filed on
4/ 16/ 2008)
(Ent ered:
04/ 16/ 2008)
2009-
08-02
22: 46: 03
3cb3fce0d673cb4defb895e0ecbe9b3f9630e012
2008-
04-
17
38 0
Cert ificat e of
Service
Proof of Service by
First American
Eappraiseit re 29
Order on Mot ion for
Pro Hac Vice, 28
Pro Hac Vice, 27
Pro Hac Vice, 30
Pro Hac Vice
(Fowler, Laura)
(Filed on
4/ 17/ 2008) Modified
on 4/ 17/ 2008 (bw,
COURT STAFF).
(Ent ered:
04/ 17/ 2008)
2009-
08-02
22: 46: 27
c568de1b6274b23a689ca947d5fbc0d332f6cd70
2008-
05-
01
39 0
Not ice of
Volunt ary
Dismissal
NOTI CE of
Volunt ary Dismissal
of Defendant
I nc. by Felt on A
Spears, Jr, Sidney
Scholl (Braun,
Michael) (Filed on
5/ 1/ 2008) (Ent ered:
05/ 01/ 2008)
2009-
08-02
22: 43: 47
fe8c2fe75df90890d99b75ba405c98e515c9b492
2008-
05-
01
40 0
Cert ificat e of
Service
PROOF OF SERVI CE
re 39 by Felt on A
Spears, Jr, Sidney
Scholl (Braun,
Michael) (Filed on
5/ 1/ 2008) Modified
on 5/ 1/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 01/ 2008)
2009-
08-02
22: 52: 01
4db994605e7ebec640fdfae192702be7ddb3b51e
NOTI CE of
Appearance by Sam
Dawood for
2008-
05-
02
41 0
Not ice of
Appearance
Washingt on Mut ual
Bank (Dawood,
Sam) (Filed on
5/ 2/ 2008) (Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 46: 46
0baa6a01d8aa4ada0d800fc6375cd410738f275f
2008-
05-
02
42 0
Mot ion t o
Dismiss
Mot ion t o Dismiss
Plaint iffs' First
Amended Complaint
( 14 ) filed by
Washingt on Mut ual
Bank FA. Mot ion
Hearing set for
7/ 15/ 2008 10: 00 AM
in Court room 2, 5t h
Floor, San Jose.
(Dawood, Sam)
(Filed on 5/ 2/ 2008)
Linkage added on
5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 51: 04
54bdc1f43d9c59312a88ee316554d0510f094b19
2008-
05-
02
43 0
Declarat ion in
Support
Declarat ion of
St ephen M.
Rummage in
Support of Mot ion
t o Dismiss First
Amended Complaint
( 42 ) filed by
Washingt on Mut ual
Bank FA.
Exhibit A t o F, # 2
Exhibit G t o I , # 3
Exhibit J t o M)
(Dawood, Sam)
(Filed on 5/ 2/ 2008)
Linkaged added on
5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 45: 40
a70c84d0d58785ea76eb4a34115edee1b3b2da78
2008-
05-
02
44 0
Request for
Judicial
Not ice
Request for Judicial
Not ice in Support of
Mot ion t o Dismiss
First Amended
Complaint ( 42 )
filed by Washingt on
Mut ual Bank FA.
(Dawood, Sam)
(Filed on 5/ 2/ 2008)
Linkage added on
5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
2009-
08-02
22: 49: 51
a1f7ff36fd5ceeb4b43baa347dc9047a52d38e8c
05/ 02/ 2008)
2008-
05-
02
45 0 Clerk's Not ice
CLERK'S NOTI CE re
Deadline for
Consent or
Declinat ion t o
Proceed Before a
Magist rat e Judge.
Consent s or
declinat ions due by
5/ 9/ 2008. (hrllc2,
COURT STAFF)
(Filed on 5/ 2/ 2008)
(Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 52: 56
77133abf95870fe4f24f72ef1424e83bd6bf1d5b
2008-
05-
02
46 0
Mot ion t o
Dismiss
MOTI ON t o Dismiss;
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss filed by
First American
Eappraiseit . Mot ion
Hearing set for
7/ 15/ 2008 10: 00 AM
Floor, San Jose.
Proposed Order, # 2
Proof of
Service)(Fowler,
Laura) (Filed on
5/ 2/ 2008) Text
modified on
5/ 5/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 42: 04
5562a62586b3dee223f5473c58dbfa420277888a
2008-
05-
02
47 0 Brief
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss Plaint iffs'
First Amended
Complaint re 42 , (
43 ). ( 44 ) filed
byWashingt on
Mut ual Bank FA.
(Relat ed
document (s) 43 , 44
, 42 ) (Dawood,
Sam) (Filed on
on 5/ 5/ 2008 (bw,
COURT STAFF).
2009-
08-02
22: 44: 50
b1e56c6efa91619a9550ed490a159ff4fee05e7a
(Ent ered:
05/ 02/ 2008)
2008-
05-
02
48 0
Mot ion t o
Dismiss
Mot ion t o Dismiss;
and Memorandum
in Support of Mot ion
Mot ion Hearing set
for 7/ 15/ 2008 10: 00
AM in Court room 2,
5t h Floor, San Jose.
Affidavit of Kat hleen
M. Rice in Support
of Mot ion t o
Dismiss)(Man, Kris)
(Filed on 5/ 2/ 2008)
Modified on
5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 47: 54
e92f59a46781f515fed4ed21e6ba97b32e1574c5
2008-
05-
02
49 0
Cert ificat e of
Service
PROOF OF SERVI CE
re ( 48 ) by Lender
Service, I nc. (Man,
Kris) (Filed on
on 5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 02/ 2008)
2009-
08-02
22: 43: 36
2bca86ce94f13d801bb255920bba815c48ed49de
2008-
05-
03
50 0
Proposed
Order
(Proposed) Order
Grant ing Defendant
LSI APPRAI SAL,
LLC'S Mot ion t o
Dismiss re 48 by
(Man, Kris) (Filed on
on 5/ 5/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 03/ 2008)
2009-
08-02
22: 51: 48
9efdea7eb40dc9e76978a0860b2fe266a571a159
2008-
05-
05
51 0
Request for
Waiver of
Service
REQUEST FOR
WAI VER of Service
sent t o Washingt on
Mut ual Bank, F.A.
(aka Washingt on
Mut ual Bank) on
4/ 15/ 08 by Sidney
Scholl. Waiver of
Service due by
6/ 13/ 2008.
(Spielberg, Janet )
(Filed on 5/ 5/ 2008)
(Ent ered:
2009-
08-02
22: 42: 52
f884faa44b4ddc2e02e39ff3611ca3394ced4b22
05/ 05/ 2008)
2008-
05-
05
52 0
Summons
Ret urned
Unexecut ed
Summons Ret urned
Unexecut ed by
Sidney Scholl as t o
Sidney Scholl.
Waiver of Summons
filed. (Spielberg,
Janet ) (Filed on
5/ 5/ 2008) (Ent ered:
05/ 05/ 2008)
2009-
08-02
22: 41: 05
803d4548ef5db5b5947f9e66274a7b9116d2ad1b
2008-
05-
06
53 0
ADR
Cert ificat ion
(ADR L.R. 3-5
b)of
discussion of
ADR opt ions
ADR Cert ificat ion
(ADR L.R. 3-5b) of
discussion of ADR
opt ions filed on
behalf of LSI
Appraisal, LLC (Man,
Kris) (Filed on
5/ 6/ 2008) (Ent ered:
05/ 06/ 2008)
2009-
08-02
22: 52: 19
0b02e40027d89641dc6fb113bb41fff230cdb137
2008-
05-
06
54 0
ADR
Cert ificat ion
(ADR L.R. 3-5
b)of
discussion of
ADR opt ions
ADR Cert ificat ion
(ADR L.R. 3-5b) of
discussion of ADR
opt ions (Rummage,
St ephen) (Filed on
5/ 6/ 2008) (Ent ered:
05/ 06/ 2008)
2009-
08-02
22: 45: 05
53e0c3fc8d577e668361ed872249c663b100c3b6
2008-
05-
07
55 0
Cert ificat e of
I nt erest ed
Ent it ies
Cert ificat ion as t o
I nt erest ed Ent it ies
or Persons Pursuant
t o Civil Local Rule 3-
16 by Felt on A
Spears, Jr, Sidney
Scholl (Braun,
Michael) (Filed on
5/ 7/ 2008) Text
modified on
5/ 8/ 2008
conforming t o
post ed document
capt ion (bw, COURT
STAFF). (Ent ered:
05/ 07/ 2008)
2009-
08-02
22: 41: 46
953fa3ca8eb9d0e9ab9795b30c868d9746a79125
2008-
05-
07
56 0
Cert ificat e of
I nt erest ed
Ent it ies
Cert ificat ion of
or Persons Pursuant
t o Civil Local Rule 3-
16 by Lender
Kris) (Filed on
5/ 7/ 2008) Text
modified on
5/ 8/ 2008
conforming t o
post ed document
capt ion (bw, COURT
2009-
08-02
22: 48: 46
20f4ea6180faad127aa9ea7de65a828f933f38f9
STAFF). (Ent ered:
05/ 07/ 2008)
2008-
05-
07
57 0
Cert ificat e of
Service
PROOF OF SERVI CE
re 56 by Lender
Service, I nc.(Man,
Kris) (Filed on
on 5/ 8/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 07/ 2008)
2009-
08-02
22: 44: 44
c8c142f09e042cc59afdde89953a571c88670089
2008-
05-
08
58 0
ADR
Cert ificat ion
(ADR L.R. 3-5
b)of
discussion of
ADR opt ions
ADR Cert ificat ion
(ADR L.R. 3-5b) of
discussion of ADR
opt ions (Fowler,
Laura) (Filed on
5/ 8/ 2008) (Ent ered:
05/ 08/ 2008)
2009-
08-02
22: 42: 47
7869b76f58884e10af25d57e158325363f752785
2008-
05-
09
59 0
Declinat ion t o
Proceed
Before a U.S.
Magist rat e
Judge
Declinat ion t o
Proceed Before a
U.S. Magist rat e
Judge by First
American
Eappraiseit . (Fowler,
Laura) (Filed on
5/ 9/ 2008) (Ent ered:
05/ 09/ 2008)
2009-
08-02
22: 49: 21
503435330c5292a9a15743c5e0f22f9b78ad531a
2008-
05-
09
60 0
Cert ificat e of
Service
CERTI FI CATE OF
SERVI CE by First
American
Eappraiseit re 59
Declinat ion t o
Proceed Before a
U.S. Magist rat e
Judge (Fowler,
Laura) (Filed on
5/ 9/ 2008) (Ent ered:
05/ 09/ 2008)
2009-
08-02
22: 42: 21
852a5785421c90d826c990c0367dc33e053a7bb4
2008-
05-
09
61 0
Declinat ion t o
Proceed
Before a U.S.
Magist rat e
Judge
Declinat ion t o
Proceed Before a
U.S. Magist rat e
Judge and Request
for Reassignment t o
a Unit ed St aes
Dist rict Judge by
Lender Service, I nc..
on 5/ 13/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 09/ 2008)
2009-
08-02
22: 53: 27
df0adc58fd89dc7004e8ac146919701b795b8d1e
PROOF OF SERVI CE
re ( 61 ) by Lender
2008-
05-
09
62 0
Cert ificat e of
Service
Kris) (Filed on
on 5/ 13/ 2008 (bw,
COURT STAFF).
(Ent ered:
05/ 09/ 2008)
2009-
08-02
22: 42: 11
9d39fd3f7d130b18a9c931c02cf56efa305ff85d
2008-
05-
12
63 0
Clerk's Not ice
of I mpending
Reassignment
CLERK'S NOTI CE of
I mpending
Reassignment t o
U.S. Dist rict Judge
(pmc, COURT
STAFF) (Filed on
5/ 12/ 2008)
(Ent ered:
05/ 12/ 2008)
2009-
08-02
22: 53: 20
3d54249ce44b28bdfae3bd849f29599dcf7ebf25
2008-
05-
12
64 0
Order
Reassigning
Case
ORDER
REASSI GNI NG
CASE. Case
reassigned t o
Dist rict Judge
Ronald M. Whyt e
for all furht er
proceedings and
Magist rat e Judge
Howard R. Lloyd for
all discovery
mat t ers. Signed by
The Execut ive
Commit t ee on
05/ 12/ 08. (t sh,
COURT STAFF)
(Filed on
5/ 12/ 2008)
(Addit ional
at t achment (s)
added on
5/ 13/ 2008: # 1
Cert ificat e of
Service) (t sh,
COURT STAFF).
(Ent ered:
05/ 12/ 2008)
2009-
08-02
22: 48: 32
1ec26531cd1f7f22d672be3e7d3bede80f55fbaa
2008-
05-
13
65 0
ADR
Cert ificat ion
(ADR L.R. 3-5
b)of
discussion of
ADR opt ions
ADR Cert ificat ion
(ADR L.R. 3-5b) of
discussion of ADR
opt ions (Kravec,
Joseph) (Filed on
5/ 13/ 2008)
(Ent ered:
05/ 13/ 2008)
2009-
08-02
22: 41: 41
b1be61a7a63c59017f4dca9b6b6b613c42c9799b
2008-
05-
13
66 0
ADR
Cert ificat ion
(ADR L.R. 3-5
b)of
discussion of
ADR Cert ificat ion
(ADR L.R. 3-5b) of
discussion of ADR
opt ions (Kravec,
Joseph) (Filed on
5/ 13/ 2008)
2009-
08-02
22: 49: 40
b8186a0d08ebddec52d0bbabc71117cc0c129dd7
ADR opt ions (Ent ered:
05/ 13/ 2008)
2008-
05-
13
67 0
Cert ificat e of
I nt erest ed
Ent it ies
Cert ificat e of
by Washingt on
Mut ual Bank FA
ident ifying
Corporat e Parent
Washingt on Mut ual
I nc for Washingt on
Mut ual Bank FA.
(Rummage,
St ephen) (Filed on
5/ 13/ 2008)
(Ent ered:
05/ 13/ 2008)
2009-
08-02
22: 50: 39
479564bcd501ff32fdd5b04259e5d88291edde8f
2008-
05-
14
68 0 Errat a
ERRATA re 47 Brief,
in Support of
Washingt on Mut ual
Bank's Mot ion t o
Dismiss. (Rummage,
St ephen) (Filed on
5/ 14/ 2008)
(Ent ered:
05/ 14/ 2008)
2009-
08-02
22: 52: 11
55cfb28dcdb39259bb6e9248f56ba5527802f9e9
2008-
05-
13
69 0
Mot ion for
Pro Hac Vice
APPLI CATI ON of
Angela M.
Papalaskaris for
Admisson Pro Hac
Vice ( Filing fee $
210, receipt number
54611003174) filed
by Lender Service,
I nc.. (dhm, COURT
STAFF) (Filed on
5/ 13/ 2008)
(Ent ered:
05/ 15/ 2008)
2009-
08-02
22: 44: 26
f326c0c9d36df98c728ff1184d1ed5790712f15e
2008-
05-
13
70 0
Proposed
Order
Proposed Order re
69 APPLI CATI ON of
Angela M.
Papalaskaris for
Admisson Pro Hac
Vice ( Filing fee $
210, receipt number
54611003174).
(dhm, COURT
STAFF) (Filed on
5/ 13/ 2008)
(Ent ered:
05/ 15/ 2008)
2009-
08-02
22: 43: 53
9dd00e652ff52448a30ccccdc76f0b97c8655bb0
CLERK'S NOTI CE
Cont inuing Mot ion
Hearing on
Defendant s
2008-
05-
15
71 0
Clerk's Not ice
Cont inuing
Mot ion
Hearing
eAppraiselI , LSI
Appraisal,
Washingt on Mut ual
Bank's Mot ions t o
Dismiss: Mot ion
Hearing set for
7/ 25/ 2008 09: 00 AM
Floor, San Jose. (j g,
COURT STAFF)
(Filed on
5/ 15/ 2008)
(Ent ered:
05/ 15/ 2008)
2009-
08-02
22: 45: 48
c6e7ff12692129781951694767dcb15c12736672
2008-
05-
15
CLERK'S NOTI CE OF
SETTI NG CASE
MANAGEMENT
CONFERENCE: Case
Management
Conference set for
8/ 29/ 2008 10: 30
AM. Joint Case
Management
St at ement due by
8/ 22/ 2008. (j g,
COURT STAFF)
(Filed on
5/ 15/ 2008)
(Ent ered:
05/ 15/ 2008)
2009-
08-02
22: 50: 25
581b7934bc90ac29830eeec013a87710e26dde6d
2008-
05-
15
73 0
Order on
Mot ion for
Pro Hac Vice
ORDER by
Magist rat e Judge
Howard R. Lloyd
for Pro Hac Vice as
t o Angela M.
Papalaskaris. (hrllc2,
COURT STAFF)
(Filed on
5/ 15/ 2008)
(Ent ered:
05/ 15/ 2008)
2009-
08-02
22: 46: 22
d7de94c7ce579539a40b1ccd6e26b69d79c45113
2008-
05-
14
74 0
Mot ion for
Pro Hac Vice
APPLI CATI ON of
Christ opher J. Clark
for Admission Pro
Hac Vice ( Filing fee
$ 210, receipt
number
54611003191) filed
by Lender Service,
I nc. (dhm, COURT
STAFF) (Filed on
5/ 14/ 2008)
(Ent ered:
05/ 16/ 2008)
2009-
08-02
22: 41: 52
4271949a09f0940e019e50867aa7c93fe9248aaf
Proposed Order re
2008-
05-
14
75 0
Proposed
Order
74 APPLI CATI ON of
Christ opher J. Clark
for Admission Pro
$ 210, receipt
number
54611003191).
(dhm, COURT
STAFF) (Filed on
5/ 14/ 2008)
(Ent ered:
05/ 16/ 2008)
2009-
08-02
22: 41: 09
22149a5e9b06224883885001c47f4ebefecd8fe7
2008-
05-
14
76 0
Mot ion for
Pro Hac Vice
APPLI CATI ON of
Kevin C. Wallace for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611003192) filed
by Lender Service,
I nc. (dhm, COURT
STAFF) (Filed on
5/ 14/ 2008)
(Ent ered:
05/ 16/ 2008)
2009-
08-02
22: 49: 03
de75d0a505e1e766cbc011c7a54ec197c8fdc4bf
2008-
05-
14
77 0
Proposed
Order
Proposed Order re
76 APPLI CATI ON of
Kevin C. Wallace for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611003192).
(dhm, COURT
STAFF) (Filed on
5/ 14/ 2008)
(Ent ered:
05/ 16/ 2008)
2009-
08-02
22: 45: 31
717e0f2ba331ccc5c4b26d5be4a9fd087c575811
2008-
05-
14
78 0
Cert ificat e of
Service
CERTI FI CATE OF
SERVI CE by Lender
Service, I nc. re 74
APPLI CATI ON for
leave t o appear in
Pro Hac Vice ( Filing
fee $ 210, receipt
number
54611003191), 75
Proposed Order, 76
APPLI CATI ON for
leave t o appear in
Pro Hac Vice ( Filing
fee $ 210, receipt
number
54611003192), 77
Proposed Order
(dhm, COURT
STAFF) (Filed on
5/ 14/ 2008)
2009-
08-02
22: 50: 53
40ec54488cfc990abf869a4731e21748909152a7
(Ent ered:
05/ 16/ 2008)
2008-
05-
19
79 0
Not ice of
Appearance
NOTI CE of
Appearance by
Jonat han Mark
Lloyd on behalf of
Washingt on Mut ual
Bank (Lloyd,
Jonat han) (Filed on
5/ 19/ 2008)
(Ent ered:
05/ 19/ 2008)
2009-
08-02
22: 42: 23
4fbfdffcbe11306f726928d40369b805f9c1fa0d
2008-
05-
19
80 0 St ipulat ion
STI PULATI ON and
[ Proposed] Order
Re: Rescheduling of
Briefing Schedule
and Hearing Dat e
on Defendant s'
Mot ions t o Dismiss
by Lender Service,
I nc.. (Man, Kris)
(Filed on
5/ 19/ 2008)
(Ent ered:
05/ 19/ 2008)
2009-
08-02
22: 42: 29
e2c8ebbfc9f01c6f3be795c46de72bb1cf9b94ec
2008-
05-
22
81 0
St ipulat ion
and Order
STI PULATI ON AND
ORDER 80 Re:
Rescheduling of
Briefing Schedule
and Hearing Dat e
on Defendant 's
Mot ions t o Dismiss.
Mot ion Hearing set
for 8/ 15/ 2008 09: 00
AM in Court room 6,
Signed by Judge
Ronald M. Whyt e on
5/ 22/ 08. (j g, COURT
STAFF) (Filed on
5/ 22/ 2008)
(Ent ered:
05/ 22/ 2008)
2009-
08-02
22: 52: 45
9f8336b5c01707e6b3f05805a0d604fb5339b5a1
2008-
05-
22
82 0
Order on
Mot ion for
Pro Hac Vice
ORDER by Judge
Ronald M. Whyt e
Grant ing 74 Mot ion
for Pro Hac Vice for
At t orney
Christ opher J. Clark.
(j g, COURT STAFF)
(Filed on
5/ 22/ 2008)
(Ent ered:
05/ 22/ 2008)
2009-
08-02
22: 49: 48
d652ce0dd1cafa1806bc71a2e7b63f722abfcc64
ORDER by Judge
2008-
05-
22
83 0
Order on
Mot ion for
Pro Hac Vice
Ronald M. Whyt e
At t orney Kevin C.
Wallace. (j g, COURT
STAFF) (Filed on
5/ 22/ 2008)
(Ent ered:
05/ 22/ 2008)
2009-
08-02
22: 43: 57
4d81c494706a5ba0e61ef48a1392440a50687e5a
2008-
05-
22
84 0
Cert ificat e of
Service
CERTI FI CATE OF
SERVI CE by Lender
Service, I nc. re 73
Pro Hac Vice, 82
Pro Hac Vice, 83
Pro Hac Vice, 81
St ipulat ion and
Order,, Set
Hearings,,
Terminat e Hearings,
5/ 22/ 2008)
(Ent ered:
05/ 22/ 2008)
2009-
08-02
22: 45: 25
5b134f57064a19b32153fda60549c30006198391
2008-
05-
23
85 0
Cert ificat e of
I nt erest ed
Ent it ies
Cert ificat e of
by First American
Eappraiseit (Fowler,
Laura) (Filed on
5/ 23/ 2008)
(Ent ered:
05/ 23/ 2008)
2009-
08-02
22: 42: 08
e4cf9949b74a3a453fa41a6370966367f5520692
2008-
06-
03
86 0
Not ice of
Appearance
NOTI CE of
Appearance by
Angela M.
Papalaskaris on
behalf of LSI
Appraisal, LLC
(Papalaskaris,
Angela) (Filed on
6/ 3/ 2008) (Ent ered:
06/ 03/ 2008)
2009-
08-02
22: 53: 23
26a1b4d1ed0db7d1f40557199be037038872b25a
2008-
06-
05
87 0 Affidavit
AFFI DAVI T of Venue
Pursuant t o Civil
Code Sect ion
1780(c) by Sidney
Scholl. (Kravec,
Joseph) (Filed on
6/ 5/ 2008) (Ent ered:
06/ 05/ 2008)
2009-
08-02
22: 51: 29
7bdf2ec0b867019b4bae60f35586ee77015a2faf
NOTI CE by Felt on A
Spears, Jr, Sidney
Scholl of MDL Filing
2008-
06-
19
88 0
Not ice
(Ot her)
Exhibit 1 - Part I , #
2 Exhibit 1 - Part I I ,
# 3 Exhibit 1 - Part
I I I , # 4 Exhibit 2, #
5 Exhibit 3)(Kravec,
Joseph) (Filed on
6/ 19/ 2008)
(Ent ered:
06/ 19/ 2008)
2009-
08-02
22: 44: 16
b8a9ded48edf4bf783f225a5767784da3aa2320a
2008-
06-
19
89 0 St ipulat ion
STI PULATI ON AND
[ PROPOSED]
ORDER RE:
MOTI ON FOR
ADMI NI STRATI VE
RELI EF by Felt on A
Spears, Jr, Sidney
Scholl. (Braun,
Michael) (Filed on
6/ 19/ 2008)
(Ent ered:
06/ 19/ 2008)
2009-
08-02
22: 49: 57
020659bdaae2fd154b83371b36c41d80b5ca2fba
2008-
06-
19
90 0
Mot ion for
Miscellaneous
Relief
MOTI ON Leave t o
File a Single Fort y
(40) Page Brief in
Opposit ion t o Two
Separat e Briefs Filed
by Defendant s
Washingt on Mut ual
FA and First
American
eAppraiseI T re 89
St ipulat ion filed by
Felt on A Spears, Jr,
Sidney Scholl.
(Braun, Michael)
(Filed on
6/ 19/ 2008)
(Ent ered:
06/ 19/ 2008)
2009-
08-02
22: 52: 49
9c436b7e265522550656a7b130df511721bf103f
2008-
06-
20
91 0
Mot ion t o
St ay
MOTI ON t o St ay
Proceedings filed by
Sidney Scholl.
Mot ion Hearing set
for 7/ 25/ 2008 09: 00
AM in Court room 6,
(Braun, Michael)
(Filed on
6/ 20/ 2008)
(Ent ered:
06/ 20/ 2008)
2009-
08-02
22: 51: 19
fdfecfd61e93e358a1fd73388b4b41b617bb0677
Brief re 91 MOTI ON
t o St ay Proceedings
- MEMORANDUM OF
2008-
06-
20
92 0 Brief
POI NTS AND
AUTHORI TI ES I N
SUPPORT OF
PLAI NTI FFS'
MOTI ON TO STAY
PROCEEDI NGS -
filed byFelt on A
Spears, Jr, Sidney
Scholl. (Relat ed
document (s) 91 )
(Braun, Michael)
(Filed on
6/ 20/ 2008)
(Ent ered:
06/ 20/ 2008)
2009-
08-02
22: 41: 49
716f82f0d6dfe301d05fbafb8e65b18ee57dec7f
2008-
06-
20
93 0
Proposed
Order
Proposed Order
Grant ing Plaint iffs'
Mot ion t o St ay
Proceedings by
Sidney Scholl.
(Braun, Michael)
(Filed on
6/ 20/ 2008)
(Ent ered:
06/ 20/ 2008)
2009-
08-02
22: 49: 11
b9e3ac14c6d8d9d986afa730398d32ea097531b7
2008-
06-
23
94 0
Not ice
(Ot her)
Spears, Jr, Sidney
Scholl of MDL Filing
Exhibit 1, # 2
Exhibit 2, # 3
Exhibit 3)(Kravec,
Joseph) (Filed on
6/ 23/ 2008)
(Ent ered:
06/ 23/ 2008)
2009-
08-02
22: 53: 15
4e11452b241f209c7842d441609c8dfe086ba769
2008-
06-
24
95 0
Not ice of
Appearance
NOTI CE of
Appearance by
James Mark Moore
(Moore, James)
(Filed on
6/ 24/ 2008)
(Ent ered:
06/ 24/ 2008)
2009-
08-02
22: 49: 31
45c6d3178abf9dbb8ef836e5207c54283f3c0a9f
2008-
06-
25
96 0
Order on
Mot ion for
Miscellaneous
Relief
STI PULATI ON AND
ORDER by Judge
Whyt e grant ing 90
Mot ion t o file a
consolidat ed brief of
no more t han 40
pages in response
t o EA and WMB's
mot ion t o dismiss.
(rmwlc2, COURT
STAFF) (Filed on
2009-
08-02
22: 48: 40
f8725bc54b7f8b02a6ec9329cdd611d9dd38b82c
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2008-
06-
25
97 0
Mot ion for
Discovery
MOTI ON for
Discovery
(Jurisdict ional);
Not ice of Mot ion
and Support ing
Memorandum filed
Jr, Sidney Scholl.
Proposed
Order)(Kravec,
Joseph) (Filed on
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2009-
08-02
22: 50: 11
b798592f385712dfda962b068cdcdb4147773fe2
2008-
06-
25
98 0 Affidavit
AFFI DAVI T re 97
MOTI ON for
Discovery
(Jurisdict ional);
Not ice of Mot ion
and Support ing
Memorandum (of
Joseph N. Kravec,
Jr.) by Felt on A
Spears, Jr, Sidney
Scholl. (Kravec,
Joseph) (Filed on
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2009-
08-02
22: 43: 31
20130ed40bcbaf73c4852cfcf773156e588ebb75
2008-
06-
25
99 0
Memorandum
in Opposit ion
Memorandum in
Opposit ion re 48
MOTI ON t o Dismiss
: Not ice of Mot ion;
and Memorandum
t o Dismiss of LSI
Appraisal, LLC filed
byFelt on A Spears,
Jr, Sidney Scholl.
(Kravec, Joseph)
(Filed on
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2009-
08-02
22: 41: 53
275aa366fa177734ea9f698f74a9b9e6bec4e5e5
AFFI DAVI T of
Joseph N. Kravec,
Jr. in Support of
Plaint iffs'
Memorandum in
Opposit ion t o
Defendant s' Mot ions
2008-
06-
25
100 0 Affidavit
t o Dismiss by Felt on
A Spears, Jr, Sidney
Scholl.
Exhibit 1, # 2
Exhibit 2, # 3
Exhibit 3, # 4
Exhibit 4)(Kravec,
Joseph) (Filed on
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2009-
08-02
22: 42: 34
4b9064b4bdcf90897b775ddc65736596f50d630d
2008-
06-
25
101 0
Memorandum
in Opposit ion
Memorandum in
Opposit ion re 42
MOTI ON t o Dismiss
First Amended
Complaint , 46
MOTI ON t o Dismiss
of Washingt on
Mut ual Bank, FA
and First American
eAppraiseI T filed
byFelt on A Spears,
Jr, Sidney Scholl.
(Kravec, Joseph)
(Filed on
6/ 25/ 2008)
(Ent ered:
06/ 25/ 2008)
2009-
08-02
22: 50: 28
4fb939c02ad6cb35e995fbe674643f43b1e8f2bc
2008-
06-
26
102 0 Affidavit
AFFI DAVI T of Venue
Pursuant t o Civil
Code Sect ion
1780(c) by Felt on A
Spears, Jr. (Kravec,
Joseph) (Filed on
6/ 26/ 2008)
(Ent ered:
06/ 26/ 2008)
2009-
08-02
22: 46: 36
571168b0ea63c3d738a152d187cc47cf0ad5bf21
2008-
07-
03
103 0
Memorandum
in Opposit ion
Memorandum in
Opposit ion re 91
MOTI ON t o St ay
Proceedings filed
byLender Service,
I nc.. (Keane,
Margaret ) (Filed on
7/ 3/ 2008) (Ent ered:
07/ 03/ 2008)
2009-
08-02
22: 48: 50
2574ea2c7c5811b9e413d98644a0aaa94dddc5f7
2008-
07-
03
104 0
Memorandum
in Opposit ion
Memorandum in
Opposit ion re 91
MOTI ON t o St ay
Proceedings filed
byWashingt on
Mut ual Bank FA.
(Rummage,
St ephen) (Filed on
7/ 3/ 2008) (Ent ered:
2009-
08-02
22: 51: 57
4c55cce8c11e5053cafc77f4a436ef1f9ba5edb8
07/ 03/ 2008)
2008-
07-
03
105 0
Declarat ion in
Support
Declarat ion of
St ephen M.
Rummage in
Support of 104
Memorandum in
Opposit ion t o
Plaint iffs' Mot ion t o
St ay Proceedings
filed byWashingt on
Mut ual Bank FA.
Exhibit A, # 2
Exhibit B, # 3
Exhibit C)(Relat ed
document (s) 104 )
(Rummage,
St ephen) (Filed on
7/ 3/ 2008) (Ent ered:
07/ 03/ 2008)
2009-
08-02
22: 41: 01
0783828f57e7c74c6fbe179a955a4da6af52546e
2008-
07-
03
106 0 Joinder
Joinder re 104
Memorandum in
Opposit ion t o
Plaint iff's Mot ion t o
St ay Proceedings by
First American
Eappraiseit . (Fowler,
Laura) (Filed on
7/ 3/ 2008) (Ent ered:
07/ 03/ 2008)
2009-
08-02
22: 47: 44
e727d6302aed11b2b0d6456dadbdc5e1093d014b
2008-
07-
08
107 0
Clerk's Not ice
Cont inuing
Mot ion
Hearing
CLERK'S NOTI CE
Cont inuing Mot ion
Hearing on Plaint iff's
Mot ion t o St ay
Proceedings. Mot ion
Hearing set for
8/ 15/ 2008 09: 00 AM
COURT STAFF)
(Filed on 7/ 8/ 2008)
(Ent ered:
07/ 08/ 2008)
2009-
08-02
22: 41: 35
e4904d54f5acd910cabbd04e66c2b2dbe6e5eb2f
2008-
07-
11
108 0
Not ice
(Ot her)
Spears, Jr re 107
Clerk's Not ice
Cont inuing Mot ion
Hearing
Proof of
Service)(Spielberg,
Janet ) (Filed on
7/ 11/ 2008)
(Ent ered:
07/ 11/ 2008)
2009-
08-02
22: 47: 10
0844ce96dd295159ab39b7a19d4bf56300b970dd
2008-
07-
11
109 0
Reply
Memorandum
Reply Memorandum
of Point s and
Aut horit ies in
Support of 91
Plaint iffs' Mot ion t o
St ay Proceedings
filed byFelt on A
Spears, Jr, Sidney
Scholl. (Braun,
Michael) (Filed on
7/ 11/ 2008) Modified
on 7/ 15/ 2008
linking ent ry t o
document # 91
(dhm, COURT
STAFF). (Ent ered:
07/ 11/ 2008)
2009-
08-02
22: 41: 12
56e55fa18da5775ca39ba677e6efb478f575bde4
2008-
07-
11
110 0
Declarat ion in
Support
Declarat ion of
Michael D. Braun in
Support of 109
Reply Memorandum
of Point s and
Aut horit ies in
Support of Plaint iffs'
Mot ion t o St ay
Proceedings filed
byFelt on A Spears,
Jr, Sidney Scholl.
Exhibit A, # 2
Exhibit B, # 3
Exhibit C, # 4
Exhibit D, # 5
Exhibit E, # 6
Affidavit of
Service)(Relat ed
document (s) 109 )
(Braun, Michael)
(Filed on
7/ 11/ 2008)
(Ent ered:
07/ 11/ 2008)
2009-
08-02
22: 47: 39
774b0c45a0054ea96d644e268e9220cf7ceeec37
2008-
07-
23
111 0
Clerk's Not ice
Cont inuing
Mot ion
CLERK'S NOTI CE
Cont inuing Mot ion
Hearing on
Defendant s
Washingt on Mut ual
Bank, EAppaiseI T,
and LSI Appraisal's
Mot ion t o Dismiss
and Cont inuing t he
Case Management
Conference: Mot ion
Hearing set for
9/ 19/ 2008 09: 00 AM
2009-
08-02
22: 51: 33
c00bd5b3422df631372676fb0bf3a26b8c7ba2ea
Hearing
Floor, San Jose.
Case Management
Conference reset for
9/ 19/ 2009 10: 30 AM
COURT STAFF)
(Filed on
7/ 23/ 2008)
(Ent ered:
07/ 23/ 2008)
2008-
07-
31
112 0
Not ice
(Ot her)
Spears, Jr, Sidney
Scholl re 97
MOTI ON for
Discovery
(Jurisdict ional);
Not ice of Mot ion
and Support ing
Memorandum
(RESCHEDULED)
(Kravec, Joseph)
(Filed on
7/ 31/ 2008)
(Ent ered:
07/ 31/ 2008)
2009-
08-02
22: 42: 18
74b6766af6107fecd225a28cb3e3a14b4716df87
2008-
08-
01
113 0
Reply t o
Opposit ion
Reply t o 48
MOTI ON t o Dismiss
filed by Lender
Service, I nc.. (Man,
Kris) (Filed on
t ext on 8/ 5/ 2008
(dhm, COURT
STAFF). (Ent ered:
08/ 01/ 2008)
2009-
08-02
22: 52: 25
3d00b732b416ced46776697f1625eac7e2bbf002
2008-
08-
01
114 0
Reply t o
Opposit ion
Reply in Support of
46 mot ion t o
dismiss filed by First
American
Eappraiseit .
(Fogart y, Michael)
(Filed on 8/ 1/ 2008)
Modified on
8/ 5/ 2008 linking
ent ry t o document
# 46 (dhm, COURT
STAFF). (Ent ered:
08/ 01/ 2008)
2009-
08-02
22: 43: 14
75869f48d40b76b72276ef4026001945eeed778b
2008-
Reply t o
Reply in Support of
42 MOTI ON t o
Dismiss First
Amended Complaint
filed by Washingt on
Mut ual Bank FA. 2009-
08-
01
115 0
Opposit ion
(Rummage,
St ephen) (Filed on
t ext on 8/ 5/ 2008
(dhm, COURT
STAFF). (Ent ered:
08/ 01/ 2008)
08-02
22: 46: 11
c053dc9eba2252c8424046a6b99fa9c12f074c58
2008-
08-
01
116 0
Request for
Judicial
Not ice
Request for Judicial
Not ice re 115 Reply
t o Opposit ion, 42
MOTI ON t o Dismiss
First Amended
Complaint filed
byWashingt on
Mut ual Bank FA.
Exhibit Exs. A &
B)(Relat ed
document (s) 115 ,
42 ) (Rummage,
St ephen) (Filed on
8/ 1/ 2008) (Ent ered:
08/ 01/ 2008)
2009-
08-02
22: 48: 14
65a4728698cc2a41253f55bdd9b66cf31bfb8672
2008-
08-
01
117 0
Declarat ion in
Support
Declarat ion of Kris
H. Man in Support
of 113 Reply t o
Opposit ion filed
byLender Service,
I nc.. (At t achment s:
# 1 Exhibit
A)(Relat ed
document (s) 113 )
8/ 1/ 2008) (Ent ered:
08/ 01/ 2008)
2009-
08-02
22: 41: 28
b4258ec6231a01783ebeb018db120a991fdfc889
2008-
08-
15
118 0
Mot ion
Hearing
Minut e Ent ry:
Mot ion Hearing held
on 8/ 15/ 2008
before Ronald M.
Whyt e (Dat e Filed:
8/ 15/ 2008) re 91
MOTI ON t o St ay
Proceedings filed by
Felt on A Spears, Jr.,
Sidney Scholl.
Mot ion Hearing on
Defendant 's Mot ion
t o Dismiss reset for
10/ 17/ 2008 09: 00
AM in Court room 6,
(Court Report er
Lee-Anne
Short ridge.) (j g,
COURT STAFF)
(Dat e Filed:
2009-
08-02
22: 41: 22
e0b1068e850cbb7566e515aade9ee934644435e3
8/ 15/ 2008)
(Ent ered:
08/ 20/ 2008)
2008-
08-
20
CLERK'S NOTI CE OF
CONTI NUANCE OF
CASE MANAGEMENT
CONFERENCE: Case
Management
Conference set for
10/ 17/ 2008 10: 30
AM. (j g, COURT
STAFF) (Filed on
8/ 20/ 2008)
(Ent ered:
08/ 20/ 2008)
2009-
08-02
22: 47: 23
583ce399d13ac9c16c2b060be5aac4a3fba64f63
2008-
10-
03
120 0
MOTI ON for
Discovery re:
Jurisdict ion filed by
Sidney Scholl.
Mot ion Hearing set
for 11/ 18/ 2008
10: 00 AM in
Court room 2, 5t h
Floor, San Jose.
(Kravec, Joseph)
(Filed on
10/ 3/ 2008)
(Ent ered:
10/ 03/ 2008)
2008-
10-
13
121 0
STI PULATI ON and
[ Proposed] Order re
CMC and MTD
Dat es by Sidney
Scholl. (Braun,
Michael) (Filed on
10/ 13/ 2008)
(Ent ered:
10/ 13/ 2008)
2008-
10-
14
122 0
STI PULATI ON AND
[ PROPOSED
ORDER] Re: St aying
Briefing and
Adj ourning Hearing
Dat e for Mot ion for
Jurisdict ional
Discovery by Lender
Service, I nc..
Proof of
Service)(Man, Kris)
(Filed on
10/ 14/ 2008)
(Ent ered:
10/ 14/ 2008)
2008-
10-
15
123 0
STI PULATI ON AND
ORDER 121 t o
Cont inue Mot ion
Hearing on
Defendant 's Mot ion
t o Dismiss and Case
Management
Conference: Case
Management
Conference set for
11/ 21/ 2008 10: 30
AM. Mot ion Hearing
set for 11/ 21/ 2008
09: 00 AM in
Court room 6, 4t h
Floor, San Jose.
Signed by Judge
Ronald M. Whyt e on
10/ 15/ 08. (j g,
COURT STAFF)
(Filed on
10/ 15/ 2008)
(Ent ered:
10/ 15/ 2008)
2008-
10-
21
124 0
STI PULATI ON AND
ORDER st aying
briefing and
cont inuing hearing
dat e on 97 plaint iffs'
mot ion for
j urisdict ional
discovery. Mot ion
hearing cont inued
t o 12/ 16/ 2008,
10: 00 AM. Signed
by Magist rat e Judge
Howard R. Lloyd on
10/ 21/ 2008. (hrllc2,
COURT STAFF)
(Filed on
10/ 21/ 2008)
(Ent ered:
10/ 21/ 2008)
2008-
11-
03
125 0
STI PULATI ON and
[ Proposed] Order t o
Subst it ut e t he
Federal Deposit
I nsurance
Corporat ion, as
Receiver for
Washingt on Mut ual
Bank, as Real Part y
in I nt erest by
Washingt on Mut ual
Bank FA. (Lloyd,
11/ 3/ 2008)
(Ent ered:
11/ 03/ 2008)
2008-
11-
03
126 0
STI PULATI ON and
[ Proposed] Order t o
St ay Proceedings by
Washingt on Mut ual
Bank FA. (Lloyd,
11/ 3/ 2008)
(Ent ered:
11/ 03/ 2008)
2008-
11-
18
127 0
STI PULATI ON AND
ORDER 126 t o St ay
Proceedings. Case is
St ayed for 90 Days.
Case Management
Conference set for
2/ 13/ 2009 10: 30
AM. Mot ion Hearing
on Defendant 's
Mot ions t o Dismiss
Plait niff's First
Amended Complaint
set for 2/ 13/ 2009
09: 00 AM in
Court room 6, 4t h
Floor, San Jose.
Signed by Judge
Ronald M. Whyt e on
11/ 18/ 08. (j g,
COURT STAFF)
(Filed on
11/ 18/ 2008)
(Ent ered:
11/ 18/ 2008)
2010-
02-16
15: 22: 06
9eedcaf7f376b9e862428fda311c875b329bab4b
2008-
11-
18
128 0
CLERKS NOTI CE re
Mot ion Hearing.
Mot ion Hearing re
97 set for
3/ 10/ 2009 10: 00 AM
Floor, San Jose.
(hrllc2, COURT
STAFF) (Filed on
11/ 18/ 2008)
(Ent ered:
11/ 18/ 2008)
2008-
11- 129 0
STI PULATI ON AND
ORDER 125 t o
Subst it ut e t he FDI C,
as Receiver for
Washingt on Mut ual
Bank, as Real Part y
in I nt erest . Signed
by Judge Ronald M.
2010-
02-16 1741d55f5627962c98fe81c9370bc018dc50dd6c
19
Whyt e on 11/ 19/ 08.
(j g, COURT STAFF)
(Filed on
11/ 19/ 2008)
(Ent ered:
11/ 19/ 2008)
15: 24: 29
2008-
12-
05
130 0
APPLI CATI ON of
Ryan E. Bull for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611004321) filed
by Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
2008-
12-
05
131 0
Proposed Order re
130 APPLI CATI ON
of Ryan E. Bull for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611004321) by
Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
2008-
12-
05
132 0
APPLI CATI ON of
David A. Super for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611004322) filed
by Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
Proposed Order re
132 APPLI CATI ON
of David A Super for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
2008-
12-
05
133 0
54611004322) by
Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
2008-
12-
05
134 0
APPLI CATI ON of
St ephen M. Ng for
Admission Pro Hac
Vice ( Filing fee $
210, receipt number
54611004323) filed
by Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
2008-
12-
05
135 0
Proposed Order re
134 APPLI CATI ON
of St ephen M. Ng
for Admission Pro
$ 210, receipt
number
54611004323) by
Federal Deposit
I nsurance
Corporat ion. (dhm,
COURT STAFF)
(Filed on
12/ 5/ 2008)
(Ent ered:
12/ 10/ 2008)
2008-
12-
16
136 0
ORDER by Judge
Ronald M. Whyt e
At t orney Ryan E.
Bull. (j g, COURT
STAFF) (Filed on
12/ 16/ 2008)
(Ent ered:
12/ 16/ 2008)
2008-
12-
16
137 0
ORDER by Judge
Ronald M. Whyt e
At t orney David A.
Super. (j g, COURT
STAFF) (Filed on
12/ 16/ 2008)
(Ent ered:
12/ 16/ 2008)
2008-
12-
16
138 0
ORDER by Judge
Ronald M. Whyt e
At t orney St ephen M.
Ng. (j g, COURT
STAFF) (Filed on
12/ 16/ 2008)
(Ent ered:
12/ 16/ 2008)
2009-
01-
28
139 0
NOTI CE of Change
of Address by
Michael T. Fogart y
(Fogart y, Michael)
(Filed on
1/ 28/ 2009)
(Ent ered:
01/ 28/ 2009)
2009-
02-
03
140 0
STATEMENT OF
RECENT DECI SI ON
pursuant t o Civil
Local Rule 7-3.d
filed byFirst
American
Eappraiseit .
(Fogart y, Michael)
(Filed on 2/ 3/ 2009)
(Ent ered:
02/ 03/ 2009)
2010-
02-16
15: 26: 56
498d495c5493eb4591ea17e6ff04422867ff34ba
2009-
02-
04
141 0
STI PULATI ON of
Dismissal of Claims
Against Federal
Deposit I nsurance
Corporat ion, as
Receiver for
Washingt on Mut ual
Bank by Felt on A
Spears, Jr, Sidney
Scholl. (Kravec,
Joseph) (Filed on
2/ 4/ 2009) (Ent ered:
02/ 04/ 2009)
2010-
02-16
15: 25: 10
3bf9f0764272bec6471b85005533879d09591b0d
MOTI ON TO
SUBMI T ARGUMENT
I N RESPONSE TO
ARGUMENT I N
DEFENDANT, E-
APPRAI SI T'S
STATEMENT OF
RECENT DECI SI ON ;
DECLARATI ON OF
I RA SPI RO filed by
2009-
02-
05
142 0
Sidney Scholl.
Proposed Order
GRANTI NG
PLAI NTI FFS'
MOTI ON FOR
ADMI NI STRATI VE
RELI EF TO SUBMI T
ARGUMENT I N
RESPONSE TO
ARGUMENT I N
DEFENDANT, E-
APPRAI SI T'S
STATEMENT OF
RECENT
DECI SI ON)(Spiro,
Robert ) (Filed on
2/ 5/ 2009) (Ent ered:
02/ 05/ 2009)
2009-
02-
06
143 0
CASE MANAGEMENT
STATEMENT
(JOI NT) filed by
Sidney Scholl.
(Kravec, Joseph)
(Filed on 2/ 6/ 2009)
(Ent ered:
02/ 06/ 2009)
2009-
02-
11
144 0
St at ement re 48
MOTI ON t o Dismiss
: Not ice of Mot ion;
and Memorandum
t o Dismiss, 46
MOTI ON t o Dismiss
(of Recent Decision)
Jr, Sidney Scholl.
Exhibit A)(Kravec,
Joseph) (Filed on
2/ 11/ 2009)
(Ent ered:
02/ 11/ 2009)
144 1
2009-
02-
17
145 0
Memorandum in
Opposit ion re 97
Mot ion for
Jurisdict ional
Discovery filed
byLender Service,
I nc.. (Keane,
2/ 17/ 2009)
(Ent ered:
02/ 17/ 2009)
2009-
02-
24
146 0
Reply Memorandum
re 97 MOTI ON for
Discovery
(Jurisdict ional);
Not ice of Mot ion
and Support ing
Memorandum filed
byFelt on A Spears,
Jr, Sidney Scholl.
(Kravec, Joseph)
(Filed on
2/ 24/ 2009)
(Ent ered:
02/ 24/ 2009)
2009-
03-
09
147 0
ORDER by Judge
Whyt e finding as
moot 42
I nc.'s Mot ion t o
Dismiss; grant ing in
part and denying in
part 46 First
American
EAppraiseit 's Mot ion
t o Dismiss; grant ing
48 Lender's
Services, I nc.'s
Mot ion t o Dismiss.
(rmwlc2, COURT
STAFF) (Filed on
3/ 9/ 2009) (Ent ered:
03/ 09/ 2009)
2010-
02-16
15: 29: 42
a6724c356aa0d9687ef3eda4961b2857c82a09f2
2009-
03-
09
148 0
ORDER by
Magist rat e Judge
Howard R. Lloyd
denying 97 wit hout
prej udice plaint iff's
mot ion for
j urisdict ional
discovery. Mot ion
hearing set for
3/ 10/ 2009 is
vacat ed. (hrllc2,
COURT STAFF)
(Filed on 3/ 9/ 2009)
(Ent ered:
03/ 09/ 2009)
AMENDED
COMPLAI NT
(SECOND) against
First American
Eappraiseit , Lender
Service, I nc.. Filed
byJuan Bencosme,
2009-
03-
30
149 0
Carmen Bencosme,
Sidney Scholl.
Exhibit 1, # 2
Exhibit 2, # 3
Exhibit 3, # 4
Exhibit 4, # 5
Exhibit 5, # 6
Exhibit 6)(Kravec,
Joseph) (Filed on
3/ 30/ 2009)
(Ent ered:
03/ 30/ 2009)
149 1
149 2
149 3
149 4
149 5
149 6
2009-
03-
30
150 0
MOTI ON t o
I nt ervene filed by
Sidney Scholl.
Mot ion Hearing set
for 5/ 8/ 2009 09: 00
AM in Court room 6,
Memorandum in
Support of Mot ion
t o I nt ervene, # 2
Proposed
Order)(Braun,
Michael) (Filed on
3/ 30/ 2009)
(Ent ered:
03/ 30/ 2009)
150 1
150 2
Transcript of
Proceedings held on
02/ 13/ 09, before
Judge Ronald M.
Whyt e. Court
Report er/ Transcriber
Lee-Anne
Short ridge,
Telephone number
408-287-4580. Per
General Order No.
59 and Judicial
Conference policy,
t his t ranscript may
be viewed only at
2009-
04-
03
151 0
t he Clerks Office
public t erminal or
may be purchased
t hrough t he Court
Report er/ Transcriber
unt il t he deadline
for t he Release of
Transcript
Rest rict ion.Aft er
t hat dat e it may be
obt ained t hrough
PACER. Any Not ice
of I nt ent t o Request
Redact ion, if
required, is due no
lat er t han 5
business days from
dat e of t his filing.
Release of
Transcript
Rest rict ion set for
6/ 29/ 2009. (las, )
(Filed on 4/ 3/ 2009)
(Ent ered:
04/ 03/ 2009)
2009-
04-
07
152 0
Spears, Jr, Sidney
Scholl (Spiro,
Robert ) (Filed on
4/ 7/ 2009) (Ent ered:
04/ 07/ 2009)
2009-
04-
10
153 0
NOTI CE by Lender
Service, I nc.
Administ rat ive
Mot ion Seeking
Order Re: Briefing
Schedule and
Adj ournment of
Hearing Dat e for
Mot ion t o I nt ervene.
(Papalaskaris,
Angela) (Filed on
4/ 10/ 2009)
(Ent ered:
04/ 10/ 2009)
2009-
04-
10
154 0
STI PULATI ON re
153 Not ice (Ot her)
St ipulat ion and
[ Proposed] Order
Re: Briefing
Schedule and
Adj ournment of
Hearing Dat e for
by Lender Service,
I nc.. (Papalaskaris,
Angela) (Filed on
4/ 10/ 2009)
(Ent ered:
04/ 10/ 2009)
2009-
04-
21
155 0
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss and in
Opposit ion t o
Mot ion t o I nt ervene
filed by Lender
Service, I nc.. Mot ion
Hearing set for
6/ 5/ 2009 09: 00 AM
Floor, San Jose.
(Keane, Margaret )
(Filed on
4/ 21/ 2009)
(Ent ered:
04/ 21/ 2009)
2010-
02-16
15: 34: 28
3519e984097c0fb44a9b1bb131b4a903573b87ab
2009-
04-
21
156 0
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
First American
Hearing set for
6/ 5/ 2009 09: 00 AM
Floor, San Jose.
(Fogart y, Michael)
(Filed on
4/ 21/ 2009)
(Ent ered:
04/ 21/ 2009)
2010-
02-16
15: 36: 50
d64007a90aac29e01b01efbb24162e2595b992fc
2009-
05-
01
157 0
MOTI ON t o St rike
156 MOTI ON t o
Dismiss ;
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss
PLAI NTI FFS
MOTI ON TO STRI KE
PORTI ONS OF
DEFENDANT
eAppraiseI T, LLCs
MOTI ON TO
DI SMI SS filed by
Mot ion Hearing set
for 6/ 5/ 2009 09: 00
AM in Court room 6,
Proposed
Order)(Moore,
James) (Filed on
5/ 1/ 2009) (Ent ered:
05/ 01/ 2009)
2009-
05-
07
158 0
STI PULATI ON AND
ORDER 154 Re:
Briefing Schedule
and Adj ournment of
Hearing Dat e for
Mot ion Hearing set
for 6/ 5/ 2009 09: 00
AM in Court room 6,
Signed by Judge
Ronald M. Whyt e on
5/ 7/ 09. (j g, COURT
STAFF) (Filed on
5/ 7/ 2009) (Ent ered:
05/ 07/ 2009)
2009-
05-
15
159 0
Reply Memorandum
re 150 MOTI ON t o
I nt ervene by
Put at ive Class
Members Juan and
Carmen Bencosme
filed byFelt on A
Spears, Jr, Sidney
Scholl, Juan
Bencosme, Carmen
Bencosme. (Kravec,
Joseph) (Filed on
5/ 15/ 2009)
(Ent ered:
05/ 15/ 2009)
2010-
02-16
15: 36: 23
e31baee8e6a50e084eb115dc4202ada98b2f9bd3
2009-
05-
15
160 0
Memorandum in
Opposit ion re 156
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss filed
byFelt on A Spears,
Jr, Sidney Scholl,
Juan Bencosme,
Carmen Bencosme.
(Kravec, Joseph)
(Filed on
5/ 15/ 2009)
(Ent ered:
05/ 15/ 2009)
2009-
05-
15
161 0
Memorandum in
Opposit ion re 155
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss and in
Opposit ion t o
filed byFelt on A
Spears, Jr, Sidney
Scholl, Juan
Bencosme, Carmen
Bencosme. (Kravec,
Joseph) (Filed on
5/ 15/ 2009)
(Ent ered:
05/ 15/ 2009)
2010-
02-16
15: 39: 42
c21aac9bebfe3c697032a69ac06bc88d03d714fb
2009-
05-
15
162 0
Memorandum in
Opposit ion t o
Mot ion t o St rike
filed byFirst
American
Eappraiseit .
(Fogart y, Michael)
(Filed on
5/ 15/ 2009)
(Ent ered:
05/ 15/ 2009)
2009-
05-
22
163 0
Reply Memorandum
of Point s and
Aut horit ies in
Support of Mot ion
To Dismiss filed
byFirst American
Eappraiseit .
(Fogart y, Michael)
(Filed on
5/ 22/ 2009)
(Ent ered:
05/ 22/ 2009)
2009-
05-
22
164 0
NOTI CE of Change
of Address by
Michael T. Fogart y
(Fogart y, Michael)
(Filed on
5/ 22/ 2009)
(Ent ered:
05/ 22/ 2009)
Reply Memorandum
re 157 MOTI ON t o
St rike 156 MOTI ON
2009-
05-
22
165 0
t o Dismiss ;
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss
PLAI NTI FFS
MOTI ON TO STRI KE
PORTI ONS OF
DEFENDANT
eAppraiseI T, LLCs
MOTI ON TO
DI SMI SS MOTI ON
t o St rike 156
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss
PLAI NTI FFS
MOTI ON TO STRI KE
PORTI ONS OF
DEFENDANT
eAppraiseI T, LLCs
MOTI ON TO
DI SMI SS filed
byFelt on A Spears,
Jr. (Moore, James)
(Filed on
5/ 22/ 2009)
(Ent ered:
05/ 22/ 2009)
2009-
05-
26
166 0
Reply Memorandum
re 155 MOTI ON t o
Dismiss ;
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss and in
Opposit ion t o
Defendant LSI
Appraisal, LLC's
Reply Memorandum
of Law in Support of
Mot ion t o Dismiss
filed byLender
Service, I nc..
Exhibit A)(Keane,
5/ 26/ 2009)
(Ent ered:
05/ 26/ 2009)
2009-
05-
26
167 0
Declarat ion of Kevin
C. Wallace in
Support of 166
Reply Memorandum,
Declarat ion of Kevin
C. Wallace
Regarding ECF
Syst em
Unavailabilit y filed
byLender Service,
I nc.. (Relat ed
document (s) 166 )
(Keane, Margaret )
(Filed on
5/ 26/ 2009)
(Ent ered:
05/ 26/ 2009)
2009-
06-
05
168 0
Minut e Ent ry:
on 6/ 5/ 2009 before
Ronald M. Whyt e
(Dat e Filed:
6/ 5/ 2009) re 156
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
First American
Eappraiseit , 155
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss and in
Opposit ion t o
filed by Lender
Service, I nc., 150
MOTI ON t o
I nt ervene filed by
Sidney Scholl, 157
MOTI ON t o St rike
156 MOTI ON t o
Dismiss ;
Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss
PLAI NTI FFS
MOTI ON TO STRI KE
PORTI ONS OF
DEFENDANT
eAppraiseI T, LLCs
MOTI ON TO
DI SMI SS MOTI ON
t o St rike 156
MOTI ON t o Dismiss
; Memorandum of
Point s and
Aut horit ies in
Support of Mot ion
t o Dismiss
PLAI NTI FFS
MOTI ON TO STRI KE
PORTI ONS OF
DEFENDANT
eAppraiseI T, LLCs
MOTI ON TO
DI SMI SS filed by
Felt on A Spears, Jr..
(Court Report er
Lee-Anne
Short ridge.) (j g,
COURT STAFF)
(Dat e Filed:
6/ 5/ 2009) (Ent ered:
06/ 10/ 2009)
2009-
08-
30
169 0
ORDER by Judge
Whyt e denying 150
Mot ion t o I nt ervene;
t o Dismiss; grant ing
in part and denying
in part 156 Mot ion
t o Dismiss; denying
157 Mot ion t o
St rike. (rmwlc2,
COURT STAFF)
(Filed on
8/ 30/ 2009)
(Ent ered:
08/ 30/ 2009)
2009-
09-
11
170 0
CLERKS NOTI CE OF
SETTI NG CASE
MANAGEMENT
CONFERENCE: Case
Management
Conference set for
9/ 25/ 2009 10: 30 AM
Floor, San Jose.
Joint Case
Management
St at ement due by
9/ 21/ 2009. (j g,
COURT STAFF)
(Filed on
9/ 11/ 2009)
(Ent ered:
09/ 11/ 2009)
2009-
09-
14
171 0
ANSWER t o
Amended Complaint
and Affirmat ive
Defenses byFirst
American
Eappraiseit .
(Fogart y, Michael)
(Filed on
9/ 14/ 2009)
(Ent ered:
09/ 14/ 2009)
2010-
02-16
15: 42: 21
3315eadebc2e0cfa55365b0f91d754a83c158388
2009-
09-
21
172 0
CASE MANAGEMENT
STATEMENT
(JOI NT) filed by
Sidney Scholl,
(Kravec, Joseph)
(Filed on
9/ 21/ 2009)
(Ent ered:
09/ 21/ 2009)
2009-
09-
22
173 0
* * * E-FI LED I N
ERROR - PLEASE
I GNORE ENTRY * * *
ORDER cont inuing
hearing on 24
mot ion for ent ry of
j udgment . Signed
by Judge Whyt e on
9/ 20/ 09. (rmwlc3,
COURT STAFF)
(Filed on
9/ 22/ 2009) Modified
on 9/ 22/ 2009 (j g,
COURT STAFF).
(Ent ered:
09/ 22/ 2009)
2009-
09-
23
174 0
CLERKS NOTI CE
Rescheduling Case
Management
Conference set for
10/ 2/ 2009 10: 30 AM
t he Honorable
Ronald M. Whyt e in
Court room 6, 4t h
Floor, San Jose.
Case Management
St at ement due by
9/ 25/ 2009. (cm,
COURT STAFF)
(Filed on
9/ 23/ 2009)
(Ent ered:
09/ 23/ 2009)
2009-
10-
02
175 0
Minut e Ent ry: I nit ial
Case Management
Conference held on
10/ 2/ 2009 before
Ronald M. Whyt e
(Dat e Filed:
10/ 2/ 2009). Furt her
Case Management
Conference set for
4/ 23/ 2010 10: 30 AM
Floor, San Jose.
Mot ion Hearing set
for 4/ 23/ 2010 09: 00
AM in Court room 6,
(Court Report er Not
Report ed.) (j g,
COURT STAFF)
(Dat e Filed:
10/ 2/ 2009)
(Ent ered:
10/ 08/ 2009)
2009-
10-
27
176 0
STI PULATI ON for
Prot ect ive Order by
Sidney Scholl,
(Kravec, Joseph)
(Filed on
10/ 27/ 2009)
(Ent ered:
10/ 27/ 2009)
2009-
11-
02
177 0
STI PULATED
PROTECTI VE
ORDER (MODI FI ED
BY THE COURT) re
176 . Signed by
Magist rat e Judge
Howard R. Lloyd on
11/ 2/ 2009. (hrllc2,
COURT STAFF)
(Filed on
11/ 2/ 2009)
(Ent ered:
11/ 02/ 2009)
2010-
03-31
04: 13: 15
916eb126c88ed7eeb02a93ea1077c55354bb44d1
2009-
11-
13
178 0
MOTI ON t o St ay
AND MOTI ON BY
EAPPRAI SEI T, LLC
FOR
CERTI FI CATI ON OF
I NTERLOCUTORY
APPEAL filed by First
American
Hearing set for
1/ 8/ 2010 09: 00 AM
2010-
02-16
15: 44: 30
f253c73b600c9dba03d6e5bbfdabe5ae7c20d716
Floor, San Jose.
(Fogart y, Michael)
(Filed on
11/ 13/ 2009)
(Ent ered:
11/ 13/ 2009)
2009-
11-
13
179 0
STI PULATI ON
SETTI NG FORTH
BRI EFI NG
SCHEDULE by First
American
Eappraiseit .
(Fogart y, Michael)
(Filed on
11/ 13/ 2009)
(Ent ered:
11/ 13/ 2009)
2009-
12-
04
180 0
Memorandum in
Opposit ion re 178
MOTI ON t o St ay
AND MOTI ON BY
EAPPRAI SEI T, LLC
FOR
CERTI FI CATI ON OF
I NTERLOCUTORY
APPEAL filed
byFelt on A Spears,
Jr. (Moore, James)
(Filed on
12/ 4/ 2009)
(Ent ered:
12/ 04/ 2009)
2010-
02-16
15: 45: 39
1af47d7fd360a7150cfa24fd2bf176972cf28e24
2009-
12-
18
181 0
Reply Memorandum
I N SUPPORT OF 178
MOTI ON BY
EAPPRAI SEI T, LLC
FOR
CERTI FI CATI ON OF
I NTERLOCUTORY
APPEAL AND FOR A
STAY filed by First
American
Eappraiseit .
(Fogart y, Michael)
(Filed on
12/ 18/ 2009)
Modified on
1/ 4/ 2010 counsel
failed t o link ent ry
t o document # 178
(dhm, COURT
STAFF). (Ent ered:
12/ 18/ 2009)
ORDER by Judge
Whyt e denying 178
2010-
01-
08
182 0
mot ion for
cert ificat ion of
int erlocut ory appeal
and for a st ay.
(rmwlc2, COURT
STAFF) (Filed on
1/ 8/ 2010) (Ent ered:
01/ 08/ 2010)
2010-
02-16
15: 48: 00
ef07a802e7358326384ff120106b678259b83a0b
2010-
01-
08
183 0
Minut e Ent ry:
on 1/ 8/ 2010 before
Ronald M. Whyt e
(Dat e Filed:
1/ 8/ 2010) re 178
MOTI ON t o St ay
AND MOTI ON BY
EAPPRAI SEI T, LLC
FOR
CERTI FI CATI ON OF
I NTERLOCUTORY
APPEAL filed by First
American
Eappraiseit . (Court
Report er Lee-Anne
Short ridge.) (j g,
COURT STAFF)
(Dat e Filed:
1/ 8/ 2010) (Ent ered:
01/ 27/ 2010)
2010-
02-
03
184 0
STI PULATI ON
(Joint ) and
Proposed Case
Management
Scheduling Order
Amending Order
Ent ered on Oct ober
2, 2009 by Sidney
Scholl, Felt on A
Spears, Jr. (Kravec,
Joseph) (Filed on
2/ 3/ 2010) (Ent ered:
02/ 03/ 2010)
2010-
02-
12
185 0
STI PULATI ON AND
Case Management
ORDER 184 . Mot ion
Hearing set for
7/ 2/ 2010 09: 00 AM
Floor, San Jose.
Signed by Judge
Ronald M. Whyt e on
2/ 9/ 10. (j g, COURT
STAFF) (Filed on
2/ 12/ 2010)
(Ent ered:
02/ 12/ 2010)
2010-
03-29
03: 43: 37
7c56a29935220d1cbc846b64f0911efe30f768ea
2010-
03-
31
186 0
NOTI CE by Sidney
Scholl, Felt on A
Spears, Jr of
Change of Firm
(Kravec, Joseph)
(Filed on
3/ 31/ 2010)
(Ent ered:
03/ 31/ 2010)
2012-
04-
26
249 0
ORDER by Judge
Whyt e grant ing 217
Mot ion for Class
Cert ificat ion and
Set t ing Case
Management
Conference.(rmwlc1,
COURT STAFF)
(Filed on
4/ 25/ 2012)
2012-
04-26
07: 54: 15
cce8b18a8da8abb9cbbcf985cefdb13f512c02c8
PlainSit e : : Flashlight : : Case No. 5: 08-cv-00868-RMW: Spears et al v. Washingt on Mut ual, I nc. et al, Ronald M. Whyt e presiding
ht t p: / / www.plainsit e.org/ flashlight / case.ht ml?id= 50314[ 5/ 14/ 2012 1: 02: 18 PM]
California Northern District Court, Case No. 5:08-cv-00868-RMW:
Spears et al v. Washingt on Mut ual, Inc. et al
Judge Ronald M. Whyte, presiding
No tags have been applied so far. Sign in to add some.
Fel t on A Spear s, J r ., Plaintiff
Michael David Braun
Union Pacific
Phone: +1 310 442 7755
Fax: +1 310 442 7756
E-Mail: service@braunlawgroup.com
Joseph N. Kravec, Jr.
ssem.com Law Firm Placeholder
Phone: +1 412 642 2300
Fax: +1 412 642 2309
E-Mail: jnk@ssem.com
jlslp.com Law Firm Placeholder
Phone: +1 310 392 8801
Fax: +1 310 278 5938
E-Mail: jlspielberg@jlslp.com
Ira Spiro
spiromoss.com Law Firm Placeholder
Phone: +1 310 235 2468
Fax: +1 310 235 2456
E-Mail: Ira@SpiroMoss.com
Si dney Sc hol l , Plaintiff
Robert Ira Spiro
Phone: +1 310 235 2468
Fax: +1 310 235 2456
E-Mail: ira@spiromoss.com
Michael David Braun
Union Pacific
Phone: +1 310 442 7755
Fax: +1 310 442 7756
Joseph N. Kravec, Jr.
ssem.com Law Firm Placeholder
Phone: +1 412 642 2300
Fax: +1 412 642 2309
E-Mail: jnk@ssem.com
James Mark Moore
Phone: +1 310 235 2468
Fax: +1 310 235 2456
E-Mail: mark@spiromoss.com
jlslp.com Law Firm Placeholder
Phone: +1 310 392 8801
Fax: +1 310 278 5938
Ira Spiro
Need Password Help?
Phone: +1 310 235 2468
Fax: +1 310 235 2456
E-Mail: Ira@SpiroMoss.com
v.
Fi r st Amer i c an Eappr ai sei t , Defendant
Michael T. Fogarty
mhalaw.com Law Firm Placeholder
Phone: +1 916 444 3900
Fax: +1 916 444 3249
E-Mail: tfogarty@mhalaw.com
Laura Jean Fowler
mhalaw.com Law Firm Placeholder
Phone: +1 916 444 3900
Fax: +1 916 444 3249
E-Mail: lfowler@mhalaw.com
Richard F. Hans
tpw.com Law Firm Placeholder
Phone: +1 212 912 7885
Fax: +1 212 912 7751
E-Mail: rhans@tpw.com
Jeffrey D. Rotenberg
Phone: +1 212 912 8218
Fax: +1 212 912 7751
E-Mail: jrotenberg@tpw.com
Patrick J. Smith
Phone: +21291 274 00x7934
Fax: +1 212 912 7751
E-Mail: psmith@tpw.com
Phone: +1 212 912 7400
Fax: +1 212 912 7751
E-Mail:
Lender Ser vi c e, I nc ., Defendant
Margaret Anne Keane
dl.com Law Firm Placeholder
Phone: +1 415 951 1100
Fax: +1 415 951 1180
E-Mail: mkeane@dl.com
Kevin C Wallace
Phone: +1 212 259 8000
Fax: +1 212 259 6333
E-Mail: kwallace@dl.com
Phone: +1 212 259 8235
Fax: +1 212 259 6333
E-Mail: apapalas@dl.com
Kris Hue Chau Man
Phone: +1 415 951 1100
Fax:
E-Mail: kman@dl.com
Christopher J Clark
Phone: +1 212 259 8000
Fax: +1 212 259 6333
E-Mail: cjclark@dl.com
Sam N. Dawood
Washi ngt on Mut ual Bank FA, Defendant
Phone: +1 415 276 6500
Fax:
E-Mail: samdawood@dwt.com
Martin L. Fineman
Phone: +1 415 276 6500
Fax: +1 415 276 6599
E-Mail: martinfineman@dwt.com
Jonathan Mark Lloyd
Phone: +1 206 757 8088
Fax: +1 206 757 7088
E-Mail: jonathanlloyd@dwt.com
Phone: +1 206 622 3150
Fax: +1 206 757 7700
E-Mail: steverummage@dwt.com
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Of f i c e San Jose
Fi l ed 2/8/2008
J ur y Demand Plaintiff
Demand
Nat ur e of Sui t 190
Cause
28:1331 Fed. Question
J ur i sdi c t i on Federal Question
Di sposi t i on
Count y Santa Clara
Ter mi nat ed
Or i gi n 1
Reopened None
Lead Case None
Rel at ed Case
Ot her Cour t Case None
Def Cust ody St at us
Fl ags ADRMOP, E-Filing
--
Fi l ed: 2/8/2008, Ent er ed: 2/8/2008
Summons Issued as to Washington Mutual, Inc., First American Eappraiseit, Lender Service, Inc. (bw, COURT STAFF) (Filed
on 2/8/2008)
--
Fi l ed: 2/8/2008, Ent er ed: 2/8/2008
CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on 2/8/2008)
1
Fi l ed: 2/8/2008, Ent er ed: 2/8/2008
CLASS ACTION COMPLAINT for Damages, Equitable, Declaratory and Injunctive Relief (Summons Issued); jury demand;
against all defendants ( Filing fee $ 350, receipt number 54611002547). Filed by Felton A Spears, Jr, Sidney Scholl. (bw,
COURT STAFF) (Filed on 2/8/2008)
2
Fi l ed: 2/8/2008, Ent er ed: 2/8/2008
ADR SCHEDULING ORDER: Case Management Statement due by 5/20/2008. Case Management Conference set for
5/27/2008 01:30 PM. (bw, COURT STAFF) (Filed on 2/8/2008)
--
Fi l ed: 2/13/2008, Ent er ed: 2/14/2008
Received (Proposed) Order Granting Application for Admission to appear in Pro Hac Vice for attorney Joseph N. Kravec, Jr. re
[3] by Felton A Spears, Jr, Sidney Scholl. (bw, COURT STAFF) (Filed on 2/13/2008)
3
Fi l ed: 2/13/2008, Ent er ed: 2/14/2008
Application for Admission to appear in Pro Hac Vice for attorney Joseph N. Kravec, Jr. ( Filing fee $ 210, receipt number
54611002591) filed by Felton A Spears, Jr, Sidney Scholl. (bw, COURT STAFF) (Filed on 2/13/2008)
4
Fi l ed: 2/13/2008, Ent er ed: 2/14/2008
CERTIFICATION of Joseph N. Kravac, Jr. in Support of his Application for Admission Pro Hac Vice by Felton A Spears, Jr,
Sidney Scholl re [3] ( Filing fee $ 210, receipt number 54611002591) (bw, COURT STAFF) (Filed on 2/13/2008)
5
Fi l ed: 2/15/2008, Ent er ed: 2/15/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [3] Motion for Pro Hac Vice as to Joseph N. Kravec, Jr. (hrllc2, COURT
STAFF) (Filed on 2/15/2008)
6
Fi l ed: 2/15/2008, Ent er ed: 2/15/2008
MDL Filing by Washington Mutual, Inc. (Attachments: # (1) Motion to Transfer, # (2) Brief in support of Motion to Transfer, # (3)
Schedule of Actions, # (4) Notice of Appearance, # (5) WaMu's Corporate Disclosure Statement, # (6) Notice of Tag-Along
Action) (Pfister, Robert) (Filed on 2/15/2008) Text modified on 2/19/2008 conforming to posted document caption (bw, COURT
STAFF).
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
7
Fi l ed: 2/29/2008, Ent er ed: 2/29/2008
PROOFS OF SERVICE of Summons and Complaint on Defendants Washington Mutual, Inc., First American Eappraiseit and
Lender's Service, Inc. re ([1]), ([2]) by Felton A Spears, Jr, Sidney Scholl (Attachments: # (1) Exhibit A, # (2) Proof of Service )
(P(Braun, Michael) (Filed on 2/29/2008) Text modified on 3/3/2008 conforming to posted document caption, linkage added,
Proof of services submitted on form for Central District of California (bw, COURT STAFF).
Attachment 1
Attachment 2
8
Fi l ed: 3/3/2008, Ent er ed: 3/3/2008
Certification of Denial of MDL Transfer by Felton A Spears, Jr, Sidney Scholl (Attachments: # (1) Exhibit 1, # (2) Exhibit 2)
(Kravec, Joseph) (Filed on 3/3/2008) Text modified on 3/3/2008 conforming to posted document caption (bw, COURT STAFF).
Attachment 1
Attachment 2
9
Fi l ed: 3/11/2008, Ent er ed: 3/11/2008
STIPULATION and (Proposed) Order Extending Time to Answer or Otherwise Respond re [1] by Washington Mutual, Inc.
(Fineman, Martin) (Filed on 3/11/2008) Text modified on 3/12/2008 conforming to posted document caption (bw, COURT
STAFF).
10
Fi l ed: 3/12/2008, Ent er ed: 3/12/2008
ERRATA to Stipulation and [Proposed] Order Extending Time to Answer or Otherwise Respond re [9] by Washington Mutual,
Inc. (Fineman, Martin) (Filed on 3/12/2008) Text modified on 3/13/2008 conforming to posted document caption (bw, COURT
STAFF).
11
Fi l ed: 3/14/2008, Ent er ed: 3/14/2008
STIPULATION AND ORDER Extending Time to Answer or Otherwise Respond. Plaintiffs' amended complaint shall be filed by
3/19/2008. Defendants to have 30 days from service to answer or otherwise respond. Intial case management conference
remains set for 5/27/2008. Signed by Magistrate Judge Howard R. Lloyd on 3/14/2008. (hrllc2, COURT STAFF) (Filed on
3/14/2008)
12
Fi l ed: 3/19/2008, Ent er ed: 3/19/2008
STIPULATION and [Proposed] Order Re: (1) Extending Time to File an Amended Complaint; (2) Modifying the Case
Management Conference Date by Felton A Spears, Jr. (Spielberg, Janet) (Filed on 3/19/2008)
13
Fi l ed: 3/28/2008, Ent er ed: 3/28/2008
STIPULATION AND ORDER Extending Time to File Amended Complaint. Plaintiffs to file amended complaint by 3/28/2008.
Defendants' answer or other response due by 5/2/2008. Initial case management conference set for 5/27/2008. Signed by
Magistrate Judge Howard R. Lloyd on 3/28/2008. (hrllc2, COURT STAFF) (Filed on 3/28/2008)
14
Fi l ed: 3/28/2008, Ent er ed: 3/28/2008
First Amended Complaint for Damages, Equitable, Declaratory and Injunctive Relief; Demand for Jury Trial against Washington
Mutual, Inc. Filed by Sidney Scholl. (Spiro, Robert) (Filed on 3/28/2008) Text modified on 3/31/2008 conforming to posted
document caption (bw, COURT STAFF).
15
Fi l ed: 4/1/2008, Ent er ed: 4/1/2008
Summons Issued as to Washington Mutual, Inc., First American Eappraiseit, Washington Mutual Bank FA, Lender Service, Inc.
re Amended Complaint (bw, COURT STAFF) (Filed on 4/1/2008)
16
Fi l ed: 4/3/2008, Ent er ed: 4/3/2008
NOTICE of Appearance by Kris Hue Chau Man on behalf of LSI Appraisal, LLC (Man, Kris) (Filed on 4/3/2008)
17
Fi l ed: 4/3/2008, Ent er ed: 4/3/2008
NOTICE of Appearance by Margaret Anne Keane on behalf of LSI Appraisal, LLC (Keane, Margaret) (Filed on 4/3/2008)
18
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Application for leave to appear in Pro Hac Vice for Attorney Patrick J. Smith ( Filing fee $ 210, receipt number 54611002943)
filed by First American EappraiseiT. (bw, COURT STAFF) (Filed on 4/10/2008)
19
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for Attorney Patrick J. Smith re [18] by
First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
20
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Application for leave to appear in Pro Hac Vice for Attorney Richard F. Hans ( Filing fee $ 210, receipt number 54611002943)
filed by First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
21
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for Attorney Richard F. Hans re [20] by
First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
22
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Application for leave to appear in Pro Hac Vice for Attorney Kerry Ford Cunningham ( Filing fee $ 210, receipt number
54611002943) filed by First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
23
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for Attorney Kerry Ford Cunningham re
[22] by First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
24
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Application for leave to appear in Pro Hac Vice for Attorney Jeffrey D. Rotenberg ( Filing fee $ 210, receipt number
54611002943) filed by First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
25
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for Attorney Jeffrey D. Rotenberg re [24]
by First American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008)
26
Fi l ed: 4/10/2008, Ent er ed: 4/11/2008
CERTIFICATE OF SERVICE by First American Eappraiseit re [20], [24], [22] and [18] (bw, COURT STAFF) (Filed on
4/10/2008)
--
Fi l ed: 4/11/2008, Ent er ed: 4/11/2008
Remark: Copy of orders (Docket Nos. 27-30) mailed to L. Fowler, McDonough, Holland & Allen PC, 555 Capitol Mall, 9th Floor,
Sacramento, CA 95814-4692. (hrllc2, COURT STAFF) (Filed on 4/11/2008)
27
Fi l ed: 4/11/2008, Ent er ed: 4/11/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [20] Motion for Pro Hac Vice as to Richard F. Hans. (hrllc2, COURT
28
Fi l ed: 4/11/2008, Ent er ed: 4/11/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [22] Motion for Pro Hac Vice as to Kerry Ford Cunningham. (hrllc2,
29
Fi l ed: 4/11/2008, Ent er ed: 4/11/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [24] Motion for Pro Hac Vice as to Jeffrey D. Rotenberg. (hrllc2,
30
Fi l ed: 4/11/2008, Ent er ed: 4/11/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [18] Motion for Pro Hac Vice as to Patrick J. Smith. (hrllc2, COURT
STAFF) (Filed on 4/11/2008) (hrllc2, COURT STAFF).
31
Fi l ed: 4/15/2008, Ent er ed: 4/15/2008, Ter mi nat ed: 4/16/2008
Application for leave to appear in Pro Hac Vice for attorney Jonathan M. Lloyd ( Filing fee $ 210, receipt number 54611002960)
filed by Washington Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008)
32
Fi l ed: 4/15/2008, Ent er ed: 4/15/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for attorney Jonathan M. Lloyd re [31] (
Filing fee $ 210, receipt number 54611002960) by Washington Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008)
33
Application for leave to appear in Pro Hac Vice for attorney Stephen M. Rummage ( Filing fee $ 210, receipt number
54611002961) filed by Washington Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008)
34
Fi l ed: 4/15/2008, Ent er ed: 4/15/2008
Received (Proposed) Order Granting Application for leave to appear in Pro Hac Vice for attorney Stephen M. Rummage re [33]
( Filing fee $ 210, receipt number 54611002961.) by Washington Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008)
--
Fi l ed: 4/16/2008, Ent er ed: 4/16/2008
Remark: Copies of orders (Docket Nos. 35 and 36) mailed to attention of Edith Sherte, Davis, Wright, Tremaine LLP, 505
Montgomery Street, Suite 800, San Francisco, CA 94111. (hrllc2, COURT STAFF) (Filed on 4/16/2008)
35
Fi l ed: 4/16/2008, Ent er ed: 4/16/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [31] Motion for Pro Hac Vice as to Jonathan M. Lloyd. (hrllc2, COURT
36
Fi l ed: 4/16/2008, Ent er ed: 4/16/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [33] Motion for Pro Hac Vice as to Stephen M. Rummage. (hrllc2,
37
Fi l ed: 4/16/2008, Ent er ed: 4/16/2008
CERTIFICATE OF SERVICE by Washington Mutual, Inc. re [34] Received Document, [32] Received Document Pro Hac Vice
Applications and Orders for Stephen Rummage and Jonathan Lloyd (Fineman, Martin) (Filed on 4/16/2008)
38
Fi l ed: 4/17/2008, Ent er ed: 4/17/2008
Proof of Service by First American Eappraiseit re [29] Order on Motion for Pro Hac Vice, [28] Order on Motion for Pro Hac Vice,
[27] Order on Motion for Pro Hac Vice, [30] Order on Motion for Pro Hac Vice (Fowler, Laura) (Filed on 4/17/2008) Modified on
4/17/2008 (bw, COURT STAFF).
39
Fi l ed: 5/1/2008, Ent er ed: 5/1/2008
NOTICE of Voluntary Dismissal of Defendant Washington Mutual, Inc. by Felton A Spears, Jr, Sidney Scholl (Braun, Michael)
(Filed on 5/1/2008)
40
Fi l ed: 5/1/2008, Ent er ed: 5/1/2008
PROOF OF SERVICE re [39] by Felton A Spears, Jr, Sidney Scholl (Braun, Michael) (Filed on 5/1/2008) Modified on 5/1/2008
(bw, COURT STAFF).
41
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
NOTICE of Appearance by Sam Dawood for Washington Mutual Bank (Dawood, Sam) (Filed on 5/2/2008)
42
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
Motion to Dismiss Plaintiffs' First Amended Complaint ([14]) filed by Washington Mutual Bank FA. Motion Hearing set for
7/15/2008 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Dawood, Sam) (Filed on 5/2/2008) Linkage added on 5/5/2008 (bw,
COURT STAFF).
43
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
Declaration of Stephen M. Rummage in Support of Motion to Dismiss First Amended Complaint ([42]) filed by Washington
Mutual Bank FA. (Attachments: # (1) Exhibit A to F, # (2) Exhibit G to I, # (3) Exhibit J to M) (Dawood, Sam) (Filed on 5/2/2008)
Linkaged added on 5/5/2008 (bw, COURT STAFF).
Attachment 1
Attachment 2
Attachment 3
44
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
Request for Judicial Notice in Support of Motion to Dismiss First Amended Complaint ([42]) filed by Washington Mutual Bank
FA. (Dawood, Sam) (Filed on 5/2/2008) Linkage added on 5/5/2008 (bw, COURT STAFF).
45
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
CLERK'S NOTICE re Deadline for Consent or Declination to Proceed Before a Magistrate Judge. Consents or declinations due
by 5/9/2008. (hrllc2, COURT STAFF) (Filed on 5/2/2008)
46
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
MOTION to Dismiss; Memorandum of Points and Authorities in Support of Motion to Dismiss filed by First American Eappraiseit.
Motion Hearing set for 7/15/2008 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments: # (1) Proposed Order, # (2)
Proof of Service)(Fowler, Laura) (Filed on 5/2/2008) Text modified on 5/5/2008 conforming to posted document caption (bw,
COURT STAFF).
Attachment 1
Attachment 2
47
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiffs' First Amended Complaint re [42], ([43]). ([44])
filed byWashington Mutual Bank FA. (Related document(s)[43], [44], [42]) (Dawood, Sam) (Filed on 5/2/2008) Modified on
5/5/2008 (bw, COURT STAFF).
48
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
Motion to Dismiss; and Memorandum in Support of Motion to Dismiss filed by Lender Service, Inc. Motion Hearing set for
7/15/2008 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments: # (1) Affidavit of Kathleen M. Rice in Support of Motion
to Dismiss)(Man, Kris) (Filed on 5/2/2008) Modified on 5/5/2008 (bw, COURT STAFF).
Attachment 1
49
Fi l ed: 5/2/2008, Ent er ed: 5/2/2008
PROOF OF SERVICE re ([48]) by Lender Service, Inc. (Man, Kris) (Filed on 5/2/2008) Modified on 5/5/2008 (bw, COURT
STAFF).
50
Fi l ed: 5/3/2008, Ent er ed: 5/3/2008
(Proposed) Order Granting Defendant LSI APPRAISAL, LLC'S Motion to Dismiss re [48] by Lender Service, Inc. (Man, Kris)
(Filed on 5/3/2008) Modified on 5/5/2008 (bw, COURT STAFF).
51
Fi l ed: 5/5/2008, Ent er ed: 5/5/2008
REQUEST FOR WAIVER of Service sent to Washington Mutual Bank, F.A. (aka Washington Mutual Bank) on 4/15/08 by
Sidney Scholl. Waiver of Service due by 6/13/2008. (Spielberg, Janet) (Filed on 5/5/2008)
52
Fi l ed: 5/5/2008, Ent er ed: 5/5/2008
Summons Returned Unexecuted by Sidney Scholl as to Sidney Scholl. Waiver of Summons filed. (Spielberg, Janet) (Filed on
5/5/2008)
53
Fi l ed: 5/6/2008, Ent er ed: 5/6/2008
ADR Certification (ADR L.R. 3-5b) of discussion of ADR options filed on behalf of LSI Appraisal, LLC (Man, Kris) (Filed on
5/6/2008)
54
Fi l ed: 5/6/2008, Ent er ed: 5/6/2008
ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Rummage, Stephen) (Filed on 5/6/2008)
55
Fi l ed: 5/7/2008, Ent er ed: 5/7/2008
Certification as to Interested Entities or Persons Pursuant to Civil Local Rule 3-16 by Felton A Spears, Jr, Sidney Scholl (Braun,
Michael) (Filed on 5/7/2008) Text modified on 5/8/2008 conforming to posted document caption (bw, COURT STAFF).
56
Fi l ed: 5/7/2008, Ent er ed: 5/7/2008
Certification of Interested Entities or Persons Pursuant to Civil Local Rule 3-16 by Lender Service, Inc. (Man, Kris) (Filed on
5/7/2008) Text modified on 5/8/2008 conforming to posted document caption (bw, COURT STAFF).
57
Fi l ed: 5/7/2008, Ent er ed: 5/7/2008
PROOF OF SERVICE re [56] by Lender Service, Inc.(Man, Kris) (Filed on 5/7/2008) Modified on 5/8/2008 (bw, COURT
STAFF).
58
Fi l ed: 5/8/2008, Ent er ed: 5/8/2008
ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Fowler, Laura) (Filed on 5/8/2008)
59
Fi l ed: 5/9/2008, Ent er ed: 5/9/2008
Declination to Proceed Before a U.S. Magistrate Judge by First American Eappraiseit. (Fowler, Laura) (Filed on 5/9/2008)
60
Fi l ed: 5/9/2008, Ent er ed: 5/9/2008
CERTIFICATE OF SERVICE by First American Eappraiseit re [59] Declination to Proceed Before a U.S. Magistrate Judge
(Fowler, Laura) (Filed on 5/9/2008)
61
Fi l ed: 5/9/2008, Ent er ed: 5/9/2008
Declination to Proceed Before a U.S. Magistrate Judge and Request for Reassignment to a United Staes District Judge by
Lender Service, Inc.. (Man, Kris) (Filed on 5/9/2008) Modified on 5/13/2008 (bw, COURT STAFF).
62
Fi l ed: 5/9/2008, Ent er ed: 5/9/2008
PROOF OF SERVICE re ([61]) by Lender Service, Inc. (Man, Kris) (Filed on 5/9/2008) Modified on 5/13/2008 (bw, COURT
STAFF).
63
Fi l ed: 5/12/2008, Ent er ed: 5/12/2008
CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (pmc, COURT STAFF) (Filed on 5/12/2008)
64
Fi l ed: 5/12/2008, Ent er ed: 5/12/2008
ORDER REASSIGNING CASE. Case reassigned to District Judge Ronald M. Whyte for all furhter proceedings and Magistrate
Judge Howard R. Lloyd for all discovery matters. Signed by The Executive Committee on 05/12/08. (tsh, COURT STAFF) (Filed
on 5/12/2008) (Additional attachment(s) added on 5/13/2008: # (1) Certificate of Service) (tsh, COURT STAFF).
65
Fi l ed: 5/13/2008, Ent er ed: 5/13/2008
ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Kravec, Joseph) (Filed on 5/13/2008)
66
Fi l ed: 5/13/2008, Ent er ed: 5/13/2008
ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Kravec, Joseph) (Filed on 5/13/2008)
67
Fi l ed: 5/13/2008, Ent er ed: 5/13/2008
Certificate of Interested Entities by Washington Mutual Bank FA identifying Corporate Parent Washington Mutual Inc for
Washington Mutual Bank FA. (Rummage, Stephen) (Filed on 5/13/2008)
69
Fi l ed: 5/13/2008, Ent er ed: 5/15/2008
APPLICATION of Angela M. Papalaskaris for Admisson Pro Hac Vice ( Filing fee $ 210, receipt number 54611003174) filed by
Lender Service, Inc.. (dhm, COURT STAFF) (Filed on 5/13/2008)
70
Fi l ed: 5/13/2008, Ent er ed: 5/15/2008
Proposed Order re [69] APPLICATION of Angela M. Papalaskaris for Admisson Pro Hac Vice ( Filing fee $ 210, receipt number
54611003174). (dhm, COURT STAFF) (Filed on 5/13/2008)
68
Fi l ed: 5/14/2008, Ent er ed: 5/14/2008
ERRATA re [47] Brief, in Support of Washington Mutual Bank's Motion to Dismiss. (Rummage, Stephen) (Filed on 5/14/2008)
74
Fi l ed: 5/14/2008, Ent er ed: 5/16/2008
APPLICATION of Christopher J. Clark for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003191) filed by
Lender Service, Inc. (dhm, COURT STAFF) (Filed on 5/14/2008)
75
Fi l ed: 5/14/2008, Ent er ed: 5/16/2008
Proposed Order re [74] APPLICATION of Christopher J. Clark for Admission Pro Hac Vice ( Filing fee $ 210, receipt number
76
Fi l ed: 5/14/2008, Ent er ed: 5/16/2008
APPLICATION of Kevin C. Wallace for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003192) filed by Lender
Service, Inc. (dhm, COURT STAFF) (Filed on 5/14/2008)
77
Fi l ed: 5/14/2008, Ent er ed: 5/16/2008
Proposed Order re [76] APPLICATION of Kevin C. Wallace for Admission Pro Hac Vice ( Filing fee $ 210, receipt number
78
Fi l ed: 5/14/2008, Ent er ed: 5/16/2008
CERTIFICATE OF SERVICE by Lender Service, Inc. re [74] APPLICATION for leave to appear in Pro Hac Vice ( Filing fee $
210, receipt number 54611003191), [75] Proposed Order, [76] APPLICATION for leave to appear in Pro Hac Vice ( Filing fee $
210, receipt number 54611003192), [77] Proposed Order (dhm, COURT STAFF) (Filed on 5/14/2008)
71
Fi l ed: 5/15/2008, Ent er ed: 5/15/2008
CLERK'S NOTICE Continuing Motion Hearing on Defendants eAppraiselI, LSI Appraisal, Washington Mutual Bank's Motions to
Dismiss: Motion Hearing set for 7/25/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. (jg, COURT STAFF) (Filed on
5/15/2008)
72
Fi l ed: 5/15/2008, Ent er ed: 5/15/2008
CLERK'S NOTICE OF SETTING CASE MANAGEMENT CONFERENCE: Case Management Conference set for 8/29/2008
10:30 AM. Joint Case Management Statement due by 8/22/2008. (jg, COURT STAFF) (Filed on 5/15/2008)
73
Fi l ed: 5/15/2008, Ent er ed: 5/15/2008
ORDER by Magistrate Judge Howard R. Lloyd granting [69] Motion for Pro Hac Vice as to Angela M. Papalaskaris. (hrllc2,
79
Fi l ed: 5/19/2008, Ent er ed: 5/19/2008
NOTICE of Appearance by Jonathan Mark Lloyd on behalf of Washington Mutual Bank (Lloyd, Jonathan) (Filed on 5/19/2008)
80
Fi l ed: 5/19/2008, Ent er ed: 5/19/2008
STIPULATION and [Proposed] Order Re: Rescheduling of Briefing Schedule and Hearing Date on Defendants' Motions to
Dismiss by Lender Service, Inc.. (Man, Kris) (Filed on 5/19/2008)
81
Fi l ed: 5/22/2008, Ent er ed: 5/22/2008
STIPULATION AND ORDER [80] Re: Rescheduling of Briefing Schedule and Hearing Date on Defendant's Motions to Dismiss.
Motion Hearing set for 8/15/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge Ronald M. Whyte on 5/22/08.
(jg, COURT STAFF) (Filed on 5/22/2008)
82
Fi l ed: 5/22/2008, Ent er ed: 5/22/2008
ORDER by Judge Ronald M. Whyte Granting [74] Motion for Pro Hac Vice for Attorney Christopher J. Clark. (jg, COURT
83
Fi l ed: 5/22/2008, Ent er ed: 5/22/2008
ORDER by Judge Ronald M. Whyte Granting [76] Motion for Pro Hac Vice for Attorney Kevin C. Wallace. (jg, COURT STAFF)
(Filed on 5/22/2008)
84
Fi l ed: 5/22/2008, Ent er ed: 5/22/2008
CERTIFICATE OF SERVICE by Lender Service, Inc. re [73] Order on Motion for Pro Hac Vice, [82] Order on Motion for Pro
Hac Vice, [83] Order on Motion for Pro Hac Vice, [81] Stipulation and Order,, Set Hearings,, Terminate Hearings, (Man, Kris)
(Filed on 5/22/2008)
85
Fi l ed: 5/23/2008, Ent er ed: 5/23/2008
Certificate of Interested Entities by First American Eappraiseit (Fowler, Laura) (Filed on 5/23/2008)
86
Fi l ed: 6/3/2008, Ent er ed: 6/3/2008
NOTICE of Appearance by Angela M. Papalaskaris on behalf of LSI Appraisal, LLC (Papalaskaris, Angela) (Filed on 6/3/2008)
87
Fi l ed: 6/5/2008, Ent er ed: 6/5/2008
AFFIDAVIT of Venue Pursuant to Civil Code Section 1780(c) by Sidney Scholl. (Kravec, Joseph) (Filed on 6/5/2008)
88
Fi l ed: 6/19/2008, Ent er ed: 6/19/2008
NOTICE by Felton A Spears, Jr, Sidney Scholl of MDL Filing (Attachments: # (1) Exhibit 1 - Part I, # (2) Exhibit 1 - Part II, # (3)
Exhibit 1 - Part III, # (4) Exhibit 2, # (5) Exhibit 3)(Kravec, Joseph) (Filed on 6/19/2008)
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
89
Fi l ed: 6/19/2008, Ent er ed: 6/19/2008
STIPULATION AND [PROPOSED] ORDER RE: MOTION FOR ADMINISTRATIVE RELIEF by Felton A Spears, Jr, Sidney
Scholl. (Braun, Michael) (Filed on 6/19/2008)
90
MOTION Leave to File a Single Forty (40) Page Brief in Opposition to Two Separate Briefs Filed by Defendants Washington
Mutual FA and First American eAppraiseIT re [89] Stipulation filed by Felton A Spears, Jr, Sidney Scholl. (Braun, Michael)
(Filed on 6/19/2008)
91
Fi l ed: 6/20/2008, Ent er ed: 6/20/2008
MOTION to Stay Proceedings filed by Felton A Spears, Jr, Sidney Scholl. Motion Hearing set for 7/25/2008 09:00 AM in
Courtroom 6, 4th Floor, San Jose. (Braun, Michael) (Filed on 6/20/2008)
92
Fi l ed: 6/20/2008, Ent er ed: 6/20/2008
Brief re [91] MOTION to Stay Proceedings - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'
MOTION TO STAY PROCEEDINGS - filed byFelton A Spears, Jr, Sidney Scholl. (Related document(s)[91]) (Braun, Michael)
(Filed on 6/20/2008)
93
Fi l ed: 6/20/2008, Ent er ed: 6/20/2008
Proposed Order Granting Plaintiffs' Motion to Stay Proceedings by Felton A Spears, Jr, Sidney Scholl. (Braun, Michael) (Filed
on 6/20/2008)
94
Fi l ed: 6/23/2008, Ent er ed: 6/23/2008
NOTICE by Felton A Spears, Jr, Sidney Scholl of MDL Filing (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit
3)(Kravec, Joseph) (Filed on 6/23/2008)
Attachment 1
Attachment 2
Attachment 3
95
Fi l ed: 6/24/2008, Ent er ed: 6/24/2008
NOTICE of Appearance by James Mark Moore (Moore, James) (Filed on 6/24/2008)
96
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
STIPULATION AND ORDER by Judge Whyte granting [90] Motion to file a consolidated brief of no more than 40 pages in
response to EA and WMB's motion to dismiss. (rmwlc2, COURT STAFF) (Filed on 6/25/2008)
97
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
MOTION for Discovery (Jurisdictional); Notice of Motion and Supporting Memorandum filed by Felton A Spears, Jr, Sidney
Scholl. (Attachments: # (1) Proposed Order)(Kravec, Joseph) (Filed on 6/25/2008)
Attachment 1
98
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
AFFIDAVIT re [97] MOTION for Discovery (Jurisdictional); Notice of Motion and Supporting Memorandum (of Joseph N. Kravec,
Jr.) by Felton A Spears, Jr, Sidney Scholl. (Kravec, Joseph) (Filed on 6/25/2008)
99
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
Memorandum in Opposition re [48] MOTION to Dismiss : Notice of Motion; Motion to Dismiss; and Memorandum in Support of
Motion to Dismiss of LSI Appraisal, LLC filed byFelton A Spears, Jr, Sidney Scholl. (Kravec, Joseph) (Filed on 6/25/2008)
100
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
AFFIDAVIT of Joseph N. Kravec, Jr. in Support of Plaintiffs' Memorandum in Opposition to Defendants' Motions to Dismiss by
Felton A Spears, Jr, Sidney Scholl. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3, # (4) Exhibit 4)(Kravec,
Joseph) (Filed on 6/25/2008)
Attachment 1
Attachment 2
Attachment 3
Attachment 4
101
Fi l ed: 6/25/2008, Ent er ed: 6/25/2008
Memorandum in Opposition re [42] MOTION to Dismiss First Amended Complaint, [46] MOTION to Dismiss of Washington
Mutual Bank, FA and First American eAppraiseIT filed byFelton A Spears, Jr, Sidney Scholl. (Kravec, Joseph) (Filed on
6/25/2008)
102
Fi l ed: 6/26/2008, Ent er ed: 6/26/2008
AFFIDAVIT of Venue Pursuant to Civil Code Section 1780(c) by Felton A Spears, Jr. (Kravec, Joseph) (Filed on 6/26/2008)
103
Fi l ed: 7/3/2008, Ent er ed: 7/3/2008
Memorandum in Opposition re [91] MOTION to Stay Proceedings filed byLender Service, Inc.. (Keane, Margaret) (Filed on
7/3/2008)
104
Fi l ed: 7/3/2008, Ent er ed: 7/3/2008
Memorandum in Opposition re [91] MOTION to Stay Proceedings filed byWashington Mutual Bank FA. (Rummage, Stephen)
(Filed on 7/3/2008)
105
Fi l ed: 7/3/2008, Ent er ed: 7/3/2008
Declaration of Stephen M. Rummage in Support of [104] Memorandum in Opposition to Plaintiffs' Motion to Stay Proceedings
filed byWashington Mutual Bank FA. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C)(Related document(s)[104])
(Rummage, Stephen) (Filed on 7/3/2008)
Attachment 1
Attachment 2
Attachment 3
106
Fi l ed: 7/3/2008, Ent er ed: 7/3/2008
Joinder re [104] Memorandum in Opposition to Plaintiff's Motion to Stay Proceedings by First American Eappraiseit. (Fowler,
Laura) (Filed on 7/3/2008)
107
Fi l ed: 7/8/2008, Ent er ed: 7/8/2008
CLERK'S NOTICE Continuing Motion Hearing on Plaintiff's Motion to Stay Proceedings. Motion Hearing set for 8/15/2008 09:00
AM in Courtroom 6, 4th Floor, San Jose. (jg, COURT STAFF) (Filed on 7/8/2008)
108
Fi l ed: 7/11/2008, Ent er ed: 7/11/2008
NOTICE by Felton A Spears, Jr re [107] Clerk's Notice Continuing Motion Hearing (Attachments: # (1) Proof of
Service)(Spielberg, Janet) (Filed on 7/11/2008)
Attachment 1
109
Fi l ed: 7/11/2008, Ent er ed: 7/11/2008
Reply Memorandum of Points and Authorities in Support of [91] Plaintiffs' Motion to Stay Proceedings filed byFelton A Spears,
Jr, Sidney Scholl. (Braun, Michael) (Filed on 7/11/2008) Modified on 7/15/2008 linking entry to document #91 (dhm, COURT
STAFF).
110
Fi l ed: 7/11/2008, Ent er ed: 7/11/2008
Declaration of Michael D. Braun in Support of [109] Reply Memorandum of Points and Authorities in Support of Plaintiffs' Motion
to Stay Proceedings filed byFelton A Spears, Jr, Sidney Scholl. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, #
(4) Exhibit D, # (5) Exhibit E, # (6) Affidavit of Service)(Related document(s)[109]) (Braun, Michael) (Filed on 7/11/2008)
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
--
Fi l ed: 7/23/2008, Ent er ed: 7/23/2008
Set/Reset Hearings: Case Management Conference set for 9/19/2008 10:30 AM. (jg, COURT STAFF) (Filed on 7/23/2008)
111
Fi l ed: 7/23/2008, Ent er ed: 7/23/2008
CLERK'S NOTICE Continuing Motion Hearing on Defendants Washington Mutual Bank, EAppaiseIT, and LSI Appraisal's
Motion to Dismiss and Continuing the Case Management Conference: Motion Hearing set for 9/19/2008 09:00 AM in Courtroom
6, 4th Floor, San Jose. Case Management Conference reset for 9/19/2009 10:30 AM in Courtroom 6, 4th Floor, San Jose. (jg,
--
Fi l ed: 7/31/2008, Ent er ed: 8/1/2008
Set Deadline as to [97] MOTION for Discovery (Jurisdictional. Motion Hearing set for 10/7/2008 10:00 AM. (dhm, COURT
112
Fi l ed: 7/31/2008, Ent er ed: 7/31/2008
NOTICE by Felton A Spears, Jr, Sidney Scholl re [97] MOTION for Discovery (Jurisdictional); Notice of Motion and Supporting
Memorandum (RESCHEDULED) (Kravec, Joseph) (Filed on 7/31/2008)
113
Fi l ed: 8/1/2008, Ent er ed: 8/1/2008
Reply to [48] MOTION to Dismiss filed by Lender Service, Inc.. (Man, Kris) (Filed on 8/1/2008) Modified text on 8/5/2008 (dhm,
COURT STAFF).
114
Fi l ed: 8/1/2008, Ent er ed: 8/1/2008
Reply in Support of [46] motion to dismiss filed by First American Eappraiseit. (Fogarty, Michael) (Filed on 8/1/2008) Modified
on 8/5/2008 linking entry to document #46 (dhm, COURT STAFF).
115
Fi l ed: 8/1/2008, Ent er ed: 8/1/2008
Reply in Support of [42] MOTION to Dismiss First Amended Complaint filed by Washington Mutual Bank FA. (Rummage,
Stephen) (Filed on 8/1/2008) Modified text on 8/5/2008 (dhm, COURT STAFF).
116
Fi l ed: 8/1/2008, Ent er ed: 8/1/2008
Request for Judicial Notice re [115] Reply to Opposition, [42] MOTION to Dismiss First Amended Complaint filed byWashington
Mutual Bank FA. (Attachments: # (1) Exhibit Exs. A & B)(Related document(s)[115], [42]) (Rummage, Stephen) (Filed on
8/1/2008)
Attachment 1
117
Fi l ed: 8/1/2008, Ent er ed: 8/1/2008
Declaration of Kris H. Man in Support of [113] Reply to Opposition filed byLender Service, Inc.. (Attachments: # (1) Exhibit
A)(Related document(s)[113]) (Man, Kris) (Filed on 8/1/2008)
Attachment 1
118
Fi l ed: 8/15/2008, Ent er ed: 8/20/2008
Minute Entry: Motion Hearing held on 8/15/2008 before Ronald M. Whyte (Date Filed: 8/15/2008) re [91] MOTION to Stay
Proceedings filed by Felton A Spears, Jr., Sidney Scholl. Motion Hearing on Defendant's Motion to Dismiss reset for 10/17/2008
09:00 AM in Courtroom 6, 4th Floor, San Jose. (Court Reporter Lee-Anne Shortridge.) (jg, COURT STAFF) (Date Filed:
8/15/2008)
119
Fi l ed: 8/20/2008, Ent er ed: 8/20/2008
CLERK'S NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE: Case Management Conference set for
10/17/2008 10:30 AM. (jg, COURT STAFF) (Filed on 8/20/2008)
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Spears et al v. Washingt on Mut ual, I nc. et al : : Just ia Docket s & Filings
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Justia > Dockets & Filings > California > California Northern District Court > Contract > Other Contract > Spears et al v. Washington Mutual, Inc. et al
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Spear s et al v . Washi ngt on Mut ual , I nc. et al
Pl ai nt i f f s: Felton A Spears, Jr. and Sidney Scholl
Def endant s: Washington Mutual, Inc., First American Eappraiseit and Lender
Service, Inc.

Case Number : 5:2008cv00868
Fi l ed: February 8, 2008

Cour t : California Northern District Court
Of f i ce: San Jose Office
Count y : Santa Clara
Pr esi di ng Judge: Magistrate Judge Howard R. Lloyd

Nat ur e of Sui t : Contract - Other Contract
Cause: 28:1331 Fed. Question
Jur i sdi ct i on: Federal Question
Jur y Demanded By : Plaintiff

Avai l abl e Case Document s
The following documents for this case are available for you to view or download.
Dat e Fi l ed # Document Tex t
April 25, 2012 249 ORDER by Judge Whyte granting 217 Motion for Class
Certification and Setting Case Management
Conference.(rmwlc1, COURT STAFF) (Filed on 4/25/2012)
December 22,
2010
227 STIPULATION AND ORDER 225 Continuing Briefing
Schedule: Motion Hearing set for 6/24/2011 09:00 AM in
Courtroom 6, 4th Floor, San Jose before Hon. Ronald M.
Whyte. Signed by Judge Ronald M. Whyte on 12/22/10.
(jgS, COURT STAFF) (Filed on 12/22/2010)
December 22,
2010
226 ORDER by Judge Whyte granting 223 Administrative
Motion to File Under Seal (rmwlc2, COURT STAFF) (Filed on
12/22/2010)
September 15,
2010
216 STIPULATION AND ORDER 215 Setting Briefing
Schedule: Motion Hearing set for 1/21/2011 09:00 AM in
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Courtroom 6, 4th Floor, San Jose. Signed by Judge Ronald
M. Whyte on 9/15/10. (jg, COURT STAFF) (Filed on
9/15/2010)
July 2, 2010 209 ORDER by Judge Whyte denying without prejudice 189 ,
197 Motion to Certify Class. (rmwlc2, COURT STAFF) (Filed
on 7/2/2010)
June 30, 2010 208 STIPULATION AND ORDER 207 Continuing Case
Management Conference. Signed by Judge Ronald M. Whyte
on 6/30/10. (jg, COURT STAFF) (Filed on 6/30/2010)
May 24, 2010 195 ORDER by Judge Whyte denying 188 Motion to Seal.
(rmwlc2, COURT STAFF) (Filed on 5/24/2010)
May 13, 2010 192 ORDER re 188 MOTION to Seal. Signed by Judge Whyte
on 5/13/10. (rmwlc2, COURT STAFF) (Filed on 5/13/2010)
February 12, 2010 185 STIPULATION AND Case Management ORDER 184 .
Motion Hearing set for 7/2/2010 09:00 AM in Courtroom 6,
4th Floor, San Jose. Signed by Judge Ronald M. Whyte on
2/9/10. (jg, COURT STAFF) (Filed on 2/12/2010)
January 8, 2010 182 ORDER by Judge Whyte denying 178 motion for
certification of interlocutory appeal and for a stay. (rmwlc2,
November 2, 2009 177 STIPULATED PROTECTIVE ORDER (MODIFIED BY THE
COURT) re 176 . Signed by Magistrate Judge Howard R.
Lloyd on 11/2/2009. (hrllc2, COURT STAFF) (Filed on
11/2/2009)
September 22,
2009
173 *** E-FILED IN ERROR - PLEASE IGNORE ENTRY ***
ORDER continuing hearing on 24 motion for entry of
judgment. Signed by Judge Whyte on 9/20/09. (rmwlc3,
COURT STAFF) (Filed on 9/22/2009) Modified on 9/22/2009
(jg, COURT STAFF).
August 30, 2009 169 ORDER by Judge Whyte denying 150 Motion to
Intervene; granting 155 Motion to Dismiss; granting in part
and denying in part 156 Motion to Dismiss; denying 157
Motion to Strike. (rmwlc2, COURT STAFF) (Filed on
8/30/2009)
May 7, 2009 158 STIPULATION AND ORDER 154 Re: Briefing Schedule and
Adjournment of Hearing Date for Motion to Intervene.
Motion Hearing set for 6/5/2009 09:00 AM in Courtroom 6,
4th Floor, San Jose. Signed by Judge Ronald M. Whyte on
5/7/09. (jg, COURT STAFF) (Filed on 5/7/2009)
March 9, 2009 148 ORDER by Magistrate Judge Howard R. Lloyd denying 97
without prejudice plaintiff's motion for jurisdictional
discovery. Motion hearing set for 3/10/2009 is vacated.
(hrllc2, COURT STAFF) (Filed on 3/9/2009)
March 9, 2009 147 ORDER by Judge Whyte finding as moot 42 Washington
Mutual, Inc.'s Motion to Dismiss; granting in part and
denying in part 46 First American EAppraiseit's Motion to
Dismiss; granting 48 Lender's Services, Inc.'s Motion to
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Dismiss. (rmwlc2, COURT STAFF) (Filed on 3/9/2009)
November 19,
2008
129 STIPULATION AND ORDER 125 to Substitute the FDIC,
as Receiver for Washington Mutual Bank, as Real Party in
Interest. Signed by Judge Ronald M. Whyte on 11/19/08.
(jg, COURT STAFF) (Filed on 11/19/2008)
November 18,
2008
127 STIPULATION AND ORDER 126 to Stay Proceedings. Case
is Stayed for 90 Days. Case Management Conference set for
2/13/2009 10:30 AM. Motion Hearing on Defendant's
Motions to Dismiss Plaitniff's First Amended Complaint set
for 2/13/2009 09:00 AM in Courtroom 6, 4th Floor, San
Jose. Signed by Judge Ronald M. Whyte on 11/18/08. (jg,
October 21, 2008 124 STIPULATION AND ORDER staying briefing and
continuing hearing date on 97 plaintiffs' motion for
jurisdictional discovery. Motion hearing continued to
12/16/2008, 10:00 AM. Signed by Magistrate Judge Howard
R. Lloyd on 10/21/2008. (hrllc2, COURT STAFF) (Filed on
10/21/2008)
October 15, 2008 123 STIPULATION AND ORDER 121 to Continue Motion
Hearing on Defendant's Motion to Dismiss and Case
Management Conference: Case Management Conference set
for 11/21/2008 10:30 AM. Motion Hearing set for
11/21/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose.
Signed by Judge Ronald M. Whyte on 10/15/08. (jg, COURT
Last Document Downloaded: April 26, 2012 03:00:59 PDT
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Pl ai nt i f f : Fel t on A Spear s, Jr .
Represented By: Michael David Braun, Joseph N. Kravec, Jr., Janet Lindner Spielberg
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CIVIL DOCKET FOR CASE #: 5:08-cv-00868-RMW
Spears et al v. Washington Mutual, Inc. et al
Assigned to: Hon. Ronald M. Whyte
Referred to: Magistrate Judge Howard R. Lloyd
Cause: 28:1331 Fed. Question
Date Filed: 02/08/2008
Jury Demand: Plaintiff
Nature of Suit: 190 Contract: Other
Jurisdiction: Federal Question
Plaintiff
Felton A Spears, Jr.
on behalf of themselves and all others
similarly situated
represented by James Mark Moore
Spiro Moore LLP
11377 West Olympic Boulevard
5th Floor
310-235-2468
Fax: 310-235-2456
Email: mark@spiromoore.com
LEAD ATTORNEY
Law Offices of Janet Lindner Spielberg
Suite 400
12400 Wilshire Boulevard
310-392-8801
Fax: 310-278-5938
Email: jlspielberg@jlslp.com
LEAD ATTORNEY
Stember Feinstein Doyle Payne &
Kravec, LLC
Allegheny Building
429 Forbes Avenue
17th Floor
Pittsburgh, PA 15219-1639
412-281-8400
Fax: 412-281-1007
Query Reports Utilities Logout
LEAD ATTORNEY
Michael D. Braun
Braun Law Group, P.C.
10680 West Pico Boulevard
Suite 280
310-836-6000
Fax: 310-836-6010
Email: service@braunlawgroup.com
LEAD ATTORNEY
Robert Ira Spiro
Spiro Moore LLP
Fifth Floor
(310) 235-2468
Fax: 310-235-2456
Email: ira@spiromoore.com
LEAD ATTORNEY
Plaintiff
Sidney Scholl
on behalf of themselves and all others
similarly situated
represented by James Mark Moore
LEAD ATTORNEY
LEAD ATTORNEY
LEAD ATTORNEY
Michael D. Braun
LEAD ATTORNEY
Robert Ira Spiro
LEAD ATTORNEY
Plaintiff
Mr. Juan Bencosme represented by Joseph N. Kravec , Jr.
Plaintiff
Mrs. Carmen Bencosme represented by Joseph N. Kravec , Jr.
V.
Receiver
Federal Deposit Insurance
Corporation
as Receiver for Defendant Washington
Mutual Bank
TERMINATED: 02/12/2009
represented by Jonathan Mark Lloyd
Suite 800
415-276-6500
Fax: 415-276-6599
LEAD ATTORNEY
PRO HAC VICE
David A. Super
Baker Botts LLP
202-639-7768
Email: david.super@bakerbotts.com
PRO HAC VICE
Ryan E. Bull ,
Baker Botts LLP
202-639-7986
Fax:
Email: Ryan.Bull@bakerbotts.com
PRO HAC VICE
Sam N. Dawood
Suite 800
(415) 276-6500
Email: samdawood@dwt.com
Stephen M. Ng
Baker Botts LLP
202-639-7704
Fax: 202-585-4075
Email: stephen.ng@bakerbotts.com
PRO HAC VICE
Suite 800
415-276-6500
Fax: 415-276-6599
PRO HAC VICE
V.
Defendant
Washington Mutual, Inc.
a Washington corporation
1201 Third Avenue, Suite 2200
206-757-8088
Fax: 206-757-7088
LEAD ATTORNEY
Robert J. Pfister
Simpson Thacher & Bartlett LLP
1999 Avenue of the Stars, 29th Floor
310-407-7500
Fax: 310-407-7502
Email: rpfister@stblaw.com
LEAD ATTORNEY
1201 Third Avenue
Suite 2200
206-622-3150
Fax: 206-757-7700
LEAD ATTORNEY
PRO HAC VICE
Martin L. Fineman
Suite 800
415-276-6575
Fax: 415-276-6599
Email: martinfineman@dwt.com
Defendant
First American Eappraiseit
a Delaware corporation
also known as
eAppraiseIT, LLC
represented by Jeffrey D. Rotenberg
DLA Piper LLP (US)
New York, NY 10020-1104
212-335-4556
Fax: 917-778-85561251
Email: jrotenberg@tpw.com
LEAD ATTORNEY
PRO HAC VICE
DLA Piper LLP (US)
New York, NY 10020
212-335-4668
Fax: 917-778-8668
Email:
kerry.cunningham@dlapiper.com
LEAD ATTORNEY
PRO HAC VICE
Laura Jean Fowler
Best Best & Krieger LLP
500 Capitol Mall, Suite 1700
(916) 325-4000
Fax: (916) 325-4010
Email: laura.fowler@bbklaw.com
LEAD ATTORNEY
Patrick J. Smith
DLA Piper LLP (US)
New York, NY 10020-1104
212-335-4556
Fax: 917-778-85561251
Email: psmith@tpw.com
LEAD ATTORNEY
PRO HAC VICE
Richard F. Hans
Thacher Proffitt & Wood LLP
2 World Financial Center
Invalid email address as of 03/31/10
New York, NY 10281
212-912-7885
Fax: 212-912-7751
Email:
invalidaddress@invalidaddress.com
LEAD ATTORNEY
PRO HAC VICE
Carter Winford Ott
DLA Piper LLP (US)
555 Mission Street
Suite 2400
415-836-2500
Fax: 415-836-2501
Email: carter.ott@dlapiper.com
David F. Gross
DLA Piper LLP (US)
555 Mission Street
Suite 2400
415-836-2500
Fax: 415-836-2501
Email: david.gross@dlapiper.com
Francesca Leigh Cicero
DLA Piper LLP (US)
555 Mission Street
Suite 2400
415-836-2500
Fax: 415-836-2501
Email: francesca.cicero@dlapiper.com
Michael T. Fogarty
Boutin Jones Inc.
555 Capitol Mall, Suite 1500
916-321-4444
Fax: 916-441-7597
Email: tfogarty@boutininc.com
Defendant
Lender Service, Inc.
represented by Christopher J Clark
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8000
Fax: 212-259-6333
Email: cjclark@dl.com
LEAD ATTORNEY
PRO HAC VICE
Kevin C Wallace
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8000
Fax: 212-259-6333
Email: kwallace@dl.com
LEAD ATTORNEY
PRO HAC VICE
Kris Hue Chau Man
Dewey & LeBoeuf LLP
Suite 400
415-951-1100
Email: kman@dl.com
LEAD ATTORNEY
Margaret Anne Keane
Dewey & LeBoeuf LLP
Suite 400
415-951-1100
Fax: 415-951-1180
Email: mkeane@dl.com
LEAD ATTORNEY
Dewey & LeBoeuf LLP
New York, NY 10019-6092
212-259-8235
Fax: 212-259-6333
Email: apapalas@dl.com
PRO HAC VICE
Kris Hue Chau Man
Defendant
Washington Mutual Bank FA
also known as
Washington Mutual Bank
LEAD ATTORNEY
Martin L. Fineman
LEAD ATTORNEY
Sam N. Dawood
LEAD ATTORNEY
LEAD ATTORNEY
Date Filed # Docket Text
02/08/2008 1 CLASS ACTION COMPLAINT for Damages, Equitable, Declaratory and
Injunctive Relief (Summons Issued); jury demand; against all defendants
( Filing fee $ 350, receipt number 54611002547). Filed by Felton A Spears, Jr,
Sidney Scholl. (bw, COURT STAFF) (Filed on 2/8/2008) (Entered:
02/08/2008)
02/08/2008 2 ADR SCHEDULING ORDER: Case Management Statement due by
5/20/2008. Case Management Conference set for 5/27/2008 01:30 PM. (bw,
COURT STAFF) (Filed on 2/8/2008) (Entered: 02/08/2008)
02/08/2008 Summons Issued as to Washington Mutual, Inc., First American Eappraiseit,
Lender Service, Inc. (bw, COURT STAFF) (Filed on 2/8/2008) (Entered:
02/08/2008)
02/08/2008 CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on
2/8/2008) (Entered: 02/08/2008)
02/13/2008 3 Application for Admission to appear in Pro Hac Vice for attorney Joseph N.
Kravec, Jr. ( Filing fee $ 210, receipt number 54611002591) filed by Felton A
Spears, Jr, Sidney Scholl. (bw, COURT STAFF) (Filed on 2/13/2008)
(Entered: 02/14/2008)
02/13/2008 4 CERTIFICATION of Joseph N. Kravac, Jr. in Support of his Application for
Admission Pro Hac Vice by Felton A Spears, Jr, Sidney Scholl re 3 ( Filing
fee $ 210, receipt number 54611002591) (bw, COURT STAFF) (Filed on
2/13/2008) (Entered: 02/14/2008)
02/13/2008 Received (Proposed) Order Granting Application for Admission to appear in
Pro Hac Vice for attorney Joseph N. Kravec, Jr. re 3 by Felton A Spears, Jr,
Sidney Scholl. (bw, COURT STAFF) (Filed on 2/13/2008) (Entered:
02/14/2008)
02/15/2008 5 ORDER by Magistrate Judge Howard R. Lloyd granting 3 Motion for Pro
Hac Vice as to Joseph N. Kravec, Jr. (hrllc2, COURT STAFF) (Filed on
2/15/2008) (Entered: 02/15/2008)
02/15/2008 6 MDL Filing by Washington Mutual, Inc. (Attachments: # 1 Motion to
Transfer, # 2 Brief in support of Motion to Transfer, # 3 Schedule of Actions,
# 4 Notice of Appearance, # 5 WaMu's Corporate Disclosure Statement,
# 6 Notice of Tag-Along Action) (Pfister, Robert) (Filed on 2/15/2008) Text
modified on 2/19/2008 conforming to posted document caption (bw, COURT
STAFF). (Entered: 02/15/2008)
02/29/2008 7 PROOFS OF SERVICE of Summons and Complaint on Defendants
Washington Mutual, Inc., First American Eappraiseit and Lender's Service,
Inc. re ( 1 ), ( 2 ) by Felton A Spears, Jr, Sidney Scholl (Attachments:
# 1 Exhibit A, # 2 Proof of Service ) (P(Braun, Michael) (Filed on 2/29/2008)
Text modified on 3/3/2008 conforming to posted document caption, linkage
added, Proof of services submitted on form for Central District of California
(bw, COURT STAFF). (Entered: 02/29/2008)
03/03/2008 8 Certification of Denial of MDL Transfer by Felton A Spears, Jr, Sidney Scholl
(Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Kravec, Joseph) (Filed on
3/3/2008) Text modified on 3/3/2008 conforming to posted document caption
03/11/2008 9 STIPULATION and (Proposed) Order Extending Time to Answer or
Otherwise Respond re 1 by Washington Mutual, Inc. (Fineman, Martin) (Filed
on 3/11/2008) Text modified on 3/12/2008 conforming to posted document
caption (bw, COURT STAFF). (Entered: 03/11/2008)
03/12/2008 10 ERRATA to Stipulation and [Proposed] Order Extending Time to Answer or
Otherwise Respond re 9 by Washington Mutual, Inc. (Fineman, Martin) (Filed
on 3/12/2008) Text modified on 3/13/2008 conforming to posted document
03/14/2008 11 STIPULATION AND ORDER Extending Time to Answer or Otherwise
Respond. Plaintiffs' amended complaint shall be filed by 3/19/2008.
Defendants to have 30 days from service to answer or otherwise respond.
Intial case management conference remains set for 5/27/2008. Signed by
Magistrate Judge Howard R. Lloyd on 3/14/2008. (hrllc2, COURT STAFF)
(Filed on 3/14/2008) (Entered: 03/14/2008)
03/19/2008 12 STIPULATION and [Proposed] Order Re: (1) Extending Time to File an
Amended Complaint; (2) Modifying the Case Management Conference
Date by Felton A Spears, Jr. (Spielberg, Janet) (Filed on 3/19/2008) (Entered:
03/19/2008)
03/28/2008 13 STIPULATION AND ORDER Extending Time to File Amended Complaint.
Plaintiffs to file amended complaint by 3/28/2008. Defendants' answer or
other response due by 5/2/2008. Initial case management conference set for
5/27/2008. Signed by Magistrate Judge Howard R. Lloyd on 3/28/2008.
(hrllc2, COURT STAFF) (Filed on 3/28/2008) (Entered: 03/28/2008)
03/28/2008 14 First Amended Complaint for Damages, Equitable, Declaratory and Injunctive
Relief; Demand for Jury Trial against Washington Mutual, Inc. Filed by
Sidney Scholl. (Spiro, Robert) (Filed on 3/28/2008) Text modified on
3/31/2008 conforming to posted document caption (bw, COURT STAFF).
(Entered: 03/28/2008)
04/01/2008 15 Summons Issued as to Washington Mutual, Inc., First American Eappraiseit,
Washington Mutual Bank FA, Lender Service, Inc. re Amended Complaint
(bw, COURT STAFF) (Filed on 4/1/2008) (Entered: 04/01/2008)
04/03/2008 16 NOTICE of Appearance by Kris Hue Chau Man on behalf of LSI Appraisal,
LLC (Man, Kris) (Filed on 4/3/2008) (Entered: 04/03/2008)
04/03/2008 17 NOTICE of Appearance by Margaret Anne Keane on behalf of LSI Appraisal,
LLC (Keane, Margaret) (Filed on 4/3/2008) (Entered: 04/03/2008)
04/10/2008 18 Application for leave to appear in Pro Hac Vice for Attorney Patrick J. Smith (
Filing fee $ 210, receipt number 54611002943) filed by First American
EappraiseiT. (bw, COURT STAFF) (Filed on 4/10/2008) (Entered:
04/11/2008)
04/10/2008 19 Received (Proposed) Order Granting Application for leave to appear in Pro
Hac Vice for Attorney Patrick J. Smith re 18 by First American Eappraiseit.
04/10/2008 20 Application for leave to appear in Pro Hac Vice for Attorney Richard F. Hans
( Filing fee $ 210, receipt number 54611002943) filed by First American
Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008) (Entered:
04/11/2008)
Hac Vice for Attorney Richard F. Hans re 20 by First American Eappraiseit.
04/10/2008 22 Application for leave to appear in Pro Hac Vice for Attorney Kerry Ford
Cunningham ( Filing fee $ 210, receipt number 54611002943) filed by First
American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008) (Entered:
04/11/2008)
Hac Vice for Attorney Kerry Ford Cunningham re 22 by First American
04/11/2008)
04/10/2008 24 Application for leave to appear in Pro Hac Vice for Attorney Jeffrey D.
Rotenberg ( Filing fee $ 210, receipt number 54611002943) filed by First
American Eappraiseit. (bw, COURT STAFF) (Filed on 4/10/2008) (Entered:
04/11/2008)
Hac Vice for Attorney Jeffrey D. Rotenberg re 24 by First American
04/11/2008)
04/10/2008 26 CERTIFICATE OF SERVICE by First American Eappraiseit
re 20 , 24 , 22 and 18 (bw, COURT STAFF) (Filed on 4/10/2008) (Entered:
04/11/2008)
Hac Vice as to Patrick J. Smith. (hrllc2, COURT STAFF) (Filed on 4/11/2008)
(hrllc2, COURT STAFF). (Entered: 04/11/2008)
Hac Vice as to Richard F. Hans. (hrllc2, COURT STAFF) (Filed on
4/11/2008) (Entered: 04/11/2008)
Hac Vice as to Kerry Ford Cunningham. (hrllc2, COURT STAFF) (Filed on
4/11/2008) (Entered: 04/11/2008)
Hac Vice as to Jeffrey D. Rotenberg. (hrllc2, COURT STAFF) (Filed on
4/11/2008) (Entered: 04/11/2008)
04/11/2008 Remark: Copy of orders (Docket Nos. 27-30) mailed to L. Fowler,
McDonough, Holland & Allen PC, 555 Capitol Mall, 9th Floor, Sacramento,
CA 95814-4692. (hrllc2, COURT STAFF) (Filed on 4/11/2008) (Entered:
04/11/2008)
04/15/2008 31 Application for leave to appear in Pro Hac Vice for attorney Jonathan M.
Lloyd ( Filing fee $ 210, receipt number 54611002960) filed by Washington
Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008) (Entered:
04/15/2008)
Hac Vice for attorney Jonathan M. Lloyd re 31 ( Filing fee $ 210, receipt
number 54611002960) by Washington Mutual, Inc. (bw, COURT STAFF)
(Filed on 4/15/2008) (Entered: 04/15/2008)
04/15/2008 33 Application for leave to appear in Pro Hac Vice for attorney Stephen M.
Rummage ( Filing fee $ 210, receipt number 54611002961) filed by
Washington Mutual, Inc. (bw, COURT STAFF) (Filed on 4/15/2008)
(Entered: 04/15/2008)
Hac Vice for attorney Stephen M. Rummage re 33 ( Filing fee $ 210, receipt
number 54611002961.) by Washington Mutual, Inc. (bw, COURT STAFF)
(Filed on 4/15/2008) (Entered: 04/15/2008)
Hac Vice as to Jonathan M. Lloyd. (hrllc2, COURT STAFF) (Filed on
4/16/2008) (Entered: 04/16/2008)
Hac Vice as to Stephen M. Rummage. (hrllc2, COURT STAFF) (Filed on
4/16/2008) (Entered: 04/16/2008)
04/16/2008 Remark: Copies of orders (Docket Nos. 35 and 36) mailed to attention of
Edith Sherte, Davis, Wright, Tremaine LLP, 505 Montgomery Street, Suite
800, San Francisco, CA 94111. (hrllc2, COURT STAFF) (Filed on 4/16/2008)
(Entered: 04/16/2008)
04/16/2008 37 CERTIFICATE OF SERVICE by Washington Mutual, Inc. re 34 Received
Document, 32 Received Document Pro Hac Vice Applications and Orders for
Stephen Rummage and Jonathan Lloyd (Fineman, Martin) (Filed on
4/16/2008) (Entered: 04/16/2008)
04/17/2008 38 Proof of Service by First American Eappraiseit re 29 Order on Motion for Pro
Hac Vice, 28 Order on Motion for Pro Hac Vice, 27Order on Motion for Pro
Hac Vice, 30 Order on Motion for Pro Hac Vice (Fowler, Laura) (Filed on
4/17/2008) Modified on 4/17/2008 (bw, COURT STAFF). (Entered:
04/17/2008)
05/01/2008 39 NOTICE of Voluntary Dismissal of Defendant Washington Mutual, Inc. by
Felton A Spears, Jr, Sidney Scholl (Braun, Michael) (Filed on 5/1/2008)
(Entered: 05/01/2008)
05/01/2008 40 PROOF OF SERVICE re 39 by Felton A Spears, Jr, Sidney Scholl (Braun,
Michael) (Filed on 5/1/2008) Modified on 5/1/2008 (bw, COURT STAFF).
(Entered: 05/01/2008)
05/02/2008 41 NOTICE of Appearance by Sam Dawood for Washington Mutual
Bank (Dawood, Sam) (Filed on 5/2/2008) (Entered: 05/02/2008)
05/02/2008 42 Motion to Dismiss Plaintiffs' First Amended Complaint ( 14 ) filed by
Washington Mutual Bank FA. Motion Hearing set for 7/15/2008 10:00 AM in
Courtroom 2, 5th Floor, San Jose. (Dawood, Sam) (Filed on 5/2/2008)
Linkage added on 5/5/2008 (bw, COURT STAFF). (Entered: 05/02/2008)
05/02/2008 43 Declaration of Stephen M. Rummage in Support of Motion to Dismiss First
Amended Complaint ( 42 ) filed by Washington Mutual Bank FA.
(Attachments: # 1 Exhibit A to F, # 2 Exhibit G to I, # 3 Exhibit J to M)
(Dawood, Sam) (Filed on 5/2/2008) Linkaged added on 5/5/2008 (bw,
COURT STAFF). (Entered: 05/02/2008)
05/02/2008 44 Request for Judicial Notice in Support of Motion to Dismiss First Amended
Complaint ( 42 ) filed by Washington Mutual Bank FA. (Dawood, Sam) (Filed
on 5/2/2008) Linkage added on 5/5/2008 (bw, COURT STAFF). (Entered:
05/02/2008)
05/02/2008 45 CLERK'S NOTICE re Deadline for Consent or Declination to Proceed Before
a Magistrate Judge. Consents or declinations due by 5/9/2008. (hrllc2,
05/02/2008 46 MOTION to Dismiss; Memorandum of Points and Authorities in Support of
Motion to Dismiss filed by First American Eappraiseit. Motion Hearing set
for 7/15/2008 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Attachments:
# 1 Proposed Order, # 2 Proof of Service)(Fowler, Laura) (Filed on 5/2/2008)
Text modified on 5/5/2008 conforming to posted document caption (bw,
05/02/2008 47 Memorandum of Points and Authorities in Support of Motion to Dismiss
Plaintiffs' First Amended Complaint re 42 , ( 43 ). ( 44 ) filed byWashington
Mutual Bank FA. (Related document(s) 43 , 44 , 42 ) (Dawood, Sam) (Filed
on 5/2/2008) Modified on 5/5/2008 (bw, COURT STAFF). (Entered:
05/02/2008)
05/02/2008 48 Motion to Dismiss; and Memorandum in Support of Motion to Dismiss filed
by Lender Service, Inc. Motion Hearing set for 7/15/2008 10:00 AM in
Courtroom 2, 5th Floor, San Jose. (Attachments: # 1 Affidavit of Kathleen M.
Rice in Support of Motion to Dismiss)(Man, Kris) (Filed on 5/2/2008)
Modified on 5/5/2008 (bw, COURT STAFF). (Entered: 05/02/2008)
05/02/2008 49 PROOF OF SERVICE re ( 48 ) by Lender Service, Inc. (Man, Kris) (Filed on
5/2/2008) Modified on 5/5/2008 (bw, COURT STAFF). (Entered: 05/02/2008)
05/03/2008 50 (Proposed) Order Granting Defendant LSI APPRAISAL, LLC'S Motion to
Dismiss re 48 by Lender Service, Inc. (Man, Kris) (Filed on 5/3/2008)
05/05/2008 51 REQUEST FOR WAIVER of Service sent to Washington Mutual Bank, F.A.
(aka Washington Mutual Bank) on 4/15/08 by Sidney Scholl. Waiver of
Service due by 6/13/2008. (Spielberg, Janet) (Filed on 5/5/2008) (Entered:
05/05/2008)
05/05/2008 52 Summons Returned Unexecuted by Sidney Scholl as to Sidney Scholl. Waiver
of Summons filed. (Spielberg, Janet) (Filed on 5/5/2008) (Entered:
05/05/2008)
05/06/2008 53 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options filed on
behalf of LSI Appraisal, LLC (Man, Kris) (Filed on 5/6/2008) (Entered:
05/06/2008)
05/06/2008 54 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options
(Rummage, Stephen) (Filed on 5/6/2008) (Entered: 05/06/2008)
05/07/2008 55 Certification as to Interested Entities or Persons Pursuant to Civil Local Rule
3-16 by Felton A Spears, Jr, Sidney Scholl (Braun, Michael) (Filed on
5/7/2008) Text modified on 5/8/2008 conforming to posted document caption
05/07/2008 56 Certification of Interested Entities or Persons Pursuant to Civil Local Rule 3-
16 by Lender Service, Inc. (Man, Kris) (Filed on 5/7/2008) Text modified on
(Entered: 05/07/2008)
05/07/2008 57 PROOF OF SERVICE re 56 by Lender Service, Inc.(Man, Kris) (Filed on
5/7/2008) Modified on 5/8/2008 (bw, COURT STAFF). (Entered: 05/07/2008)
05/08/2008 58 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Fowler,
Laura) (Filed on 5/8/2008) (Entered: 05/08/2008)
05/09/2008 59 Declination to Proceed Before a U.S. Magistrate Judge by First American
Eappraiseit. (Fowler, Laura) (Filed on 5/9/2008) (Entered: 05/09/2008)
05/09/2008 60 CERTIFICATE OF SERVICE by First American Eappraiseit
re 59 Declination to Proceed Before a U.S. Magistrate Judge (Fowler, Laura)
(Filed on 5/9/2008) (Entered: 05/09/2008)
05/09/2008 61 Declination to Proceed Before a U.S. Magistrate Judge and Request for
Reassignment to a United Staes District Judge by Lender Service, Inc.. (Man,
Kris) (Filed on 5/9/2008) Modified on 5/13/2008 (bw, COURT STAFF).
(Entered: 05/09/2008)
05/09/2008 62 PROOF OF SERVICE re ( 61 ) by Lender Service, Inc. (Man, Kris) (Filed on
05/09/2008)
05/12/2008 63 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (pmc,
05/12/2008 64 ORDER REASSIGNING CASE. Case reassigned to District Judge Ronald
M. Whyte for all furhter proceedings and Magistrate Judge Howard R. Lloyd
for all discovery matters. Signed by The Executive Committee on 05/12/08.
(tsh, COURT STAFF) (Filed on 5/12/2008) (Additional attachment(s) added
on 5/13/2008: # 1 Certificate of Service) (tsh, COURT STAFF). (Entered:
05/12/2008)
05/13/2008 65 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Kravec,
Joseph) (Filed on 5/13/2008) (Entered: 05/13/2008)
05/13/2008 66 ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Kravec,
05/13/2008 67 Certificate of Interested Entities by Washington Mutual Bank FA identifying
Corporate Parent Washington Mutual Inc for Washington Mutual Bank FA.
05/13/2008 69 APPLICATION of Angela M. Papalaskaris for Admisson Pro Hac Vice
( Filing fee $ 210, receipt number 54611003174) filed by Lender Service,
Inc.. (dhm, COURT STAFF) (Filed on 5/13/2008) (Entered: 05/15/2008)
05/13/2008 70 Proposed Order re 69 APPLICATION of Angela M. Papalaskaris for
Admisson Pro Hac Vice ( Filing fee $ 210, receipt number 54611003174).
(dhm, COURT STAFF) (Filed on 5/13/2008) (Entered: 05/15/2008)
05/14/2008 68 ERRATA re 47 Brief, in Support of Washington Mutual Bank's Motion to
Dismiss. (Rummage, Stephen) (Filed on 5/14/2008) (Entered: 05/14/2008)
05/14/2008 74 APPLICATION of Christopher J. Clark for Admission Pro Hac Vice ( Filing
fee $ 210, receipt number 54611003191) filed by Lender Service, Inc. (dhm,
05/14/2008 75 Proposed Order re 74 APPLICATION of Christopher J. Clark for Admission
Pro Hac Vice ( Filing fee $ 210, receipt number 54611003191). (dhm,
05/14/2008 76 APPLICATION of Kevin C. Wallace for Admission Pro Hac Vice ( Filing fee
$ 210, receipt number 54611003192) filed by Lender Service, Inc. (dhm,
05/14/2008 77 Proposed Order re 76 APPLICATION of Kevin C. Wallace for Admission Pro
Hac Vice ( Filing fee $ 210, receipt number 54611003192). (dhm, COURT
STAFF) (Filed on 5/14/2008) (Entered: 05/16/2008)
05/14/2008 78 CERTIFICATE OF SERVICE by Lender Service, Inc. re 74 APPLICATION
for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number
54611003191), 75 Proposed Order, 76 APPLICATION for leave to appear in
Pro Hac Vice ( Filing fee $ 210, receipt number 54611003192), 77 Proposed
Order (dhm, COURT STAFF) (Filed on 5/14/2008) (Entered: 05/16/2008)
05/15/2008 71 CLERK'S NOTICE Continuing Motion Hearing on Defendants eAppraiselI,
LSI Appraisal, Washington Mutual Bank's Motions to Dismiss: Motion
Hearing set for 7/25/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. (jg,
05/15/2008 72 CLERK'S NOTICE OF SETTING CASE MANAGEMENT CONFERENCE:
Case Management Conference set for 8/29/2008 10:30 AM. Joint Case
Management Statement due by 8/22/2008. (jg, COURT STAFF) (Filed on
5/15/2008) (Entered: 05/15/2008)
Hac Vice as to Angela M. Papalaskaris. (hrllc2, COURT STAFF) (Filed on
5/15/2008) (Entered: 05/15/2008)
05/19/2008 79 NOTICE of Appearance by Jonathan Mark Lloyd on behalf of Washington
Mutual Bank (Lloyd, Jonathan) (Filed on 5/19/2008) (Entered: 05/19/2008)
05/19/2008 80 STIPULATION and [Proposed] Order Re: Rescheduling of Briefing
Schedule and Hearing Date on Defendants' Motions to Dismiss by Lender
Service, Inc.. (Man, Kris) (Filed on 5/19/2008) (Entered: 05/19/2008)
05/22/2008 81 STIPULATION AND ORDER 80 Re: Rescheduling of Briefing Schedule and
Hearing Date on Defendant's Motions to Dismiss. Motion Hearing set for
8/15/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge
Ronald M. Whyte on 5/22/08. (jg, COURT STAFF) (Filed on 5/22/2008)
(Entered: 05/22/2008)
05/22/2008 82 ORDER by Judge Ronald M. Whyte Granting 74 Motion for Pro Hac Vice for
Attorney Christopher J. Clark. (jg, COURT STAFF) (Filed on 5/22/2008)
(Entered: 05/22/2008)
05/22/2008 83 ORDER by Judge Ronald M. Whyte Granting 76 Motion for Pro Hac Vice for
Attorney Kevin C. Wallace. (jg, COURT STAFF) (Filed on 5/22/2008)
(Entered: 05/22/2008)
05/22/2008 84 CERTIFICATE OF SERVICE by Lender Service, Inc. re 73 Order on Motion
for Pro Hac Vice, 82 Order on Motion for Pro Hac Vice,83 Order on Motion
for Pro Hac Vice, 81 Stipulation and Order,, Set Hearings,, Terminate
Hearings, (Man, Kris) (Filed on 5/22/2008) (Entered: 05/22/2008)
05/23/2008 85 Certificate of Interested Entities by First American Eappraiseit (Fowler,
Laura) (Filed on 5/23/2008) (Entered: 05/23/2008)
06/03/2008 86 NOTICE of Appearance by Angela M. Papalaskaris on behalf of LSI
Appraisal, LLC (Papalaskaris, Angela) (Filed on 6/3/2008) (Entered:
06/03/2008)
06/05/2008 87 AFFIDAVIT of Venue Pursuant to Civil Code Section 1780(c) by Sidney
Scholl. (Kravec, Joseph) (Filed on 6/5/2008) (Entered: 06/05/2008)
06/19/2008 88 NOTICE by Felton A Spears, Jr, Sidney Scholl of MDL Filing (Attachments:
# 1 Exhibit 1 - Part I, # 2 Exhibit 1 - Part II, # 3 Exhibit 1 - Part III,
# 4 Exhibit 2, # 5 Exhibit 3)(Kravec, Joseph) (Filed on 6/19/2008) (Entered:
06/19/2008)
06/19/2008 89 STIPULATION AND [PROPOSED] ORDER RE: MOTION FOR
ADMINISTRATIVE RELIEF by Felton A Spears, Jr, Sidney Scholl. (Braun,
Michael) (Filed on 6/19/2008) (Entered: 06/19/2008)
06/19/2008 90 MOTION Leave to File a Single Forty (40) Page Brief in Opposition to Two
Separate Briefs Filed by Defendants Washington Mutual FA and First
American eAppraiseIT re 89 Stipulation filed by Felton A Spears, Jr, Sidney
Scholl. (Braun, Michael) (Filed on 6/19/2008) (Entered: 06/19/2008)
06/20/2008 91 MOTION to Stay Proceedings filed by Felton A Spears, Jr, Sidney Scholl.
Motion Hearing set for 7/25/2008 09:00 AM in Courtroom 6, 4th Floor, San
Jose. (Braun, Michael) (Filed on 6/20/2008) (Entered: 06/20/2008)
06/20/2008 92 Brief re 91 MOTION to Stay Proceedings - MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION TO STAY
PROCEEDINGS - filed byFelton A Spears, Jr, Sidney Scholl. (Related
document(s) 91 ) (Braun, Michael) (Filed on 6/20/2008) (Entered:
06/20/2008)
06/20/2008 93 Proposed Order Granting Plaintiffs' Motion to Stay Proceedings by Felton A
Spears, Jr, Sidney Scholl. (Braun, Michael) (Filed on 6/20/2008) (Entered:
06/20/2008)
06/23/2008 94 NOTICE by Felton A Spears, Jr, Sidney Scholl of MDL Filing (Attachments:
# 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kravec, Joseph) (Filed on
6/23/2008) (Entered: 06/23/2008)
06/24/2008 95 NOTICE of Appearance by James Mark Moore (Moore, James) (Filed on
6/24/2008) (Entered: 06/24/2008)
06/25/2008 96 STIPULATION AND ORDER by Judge Whyte granting 90 Motion to file a
consolidated brief of no more than 40 pages in response to EA and WMB's
motion to dismiss. (rmwlc2, COURT STAFF) (Filed on 6/25/2008) (Entered:
06/25/2008)
06/25/2008 97 MOTION for Discovery (Jurisdictional); Notice of Motion and Supporting
Memorandum filed by Felton A Spears, Jr, Sidney Scholl. (Attachments:
# 1 Proposed Order)(Kravec, Joseph) (Filed on 6/25/2008) (Entered:
06/25/2008)
06/25/2008 98 AFFIDAVIT re 97 MOTION for Discovery (Jurisdictional); Notice of Motion
and Supporting Memorandum (of Joseph N. Kravec, Jr.) by Felton A Spears,
Jr, Sidney Scholl. (Kravec, Joseph) (Filed on 6/25/2008) (Entered:
06/25/2008)
06/25/2008 99 Memorandum in Opposition re 48 MOTION to Dismiss : Notice of Motion;
Motion to Dismiss; and Memorandum in Support of Motion to Dismiss of LSI
Appraisal, LLC filed byFelton A Spears, Jr, Sidney Scholl. (Kravec, Joseph)
(Filed on 6/25/2008) (Entered: 06/25/2008)
06/25/2008 100 AFFIDAVIT of Joseph N. Kravec, Jr. in Support of Plaintiffs' Memorandum
in Opposition to Defendants' Motions to Dismiss by Felton A Spears, Jr,
Sidney Scholl. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3,
# 4 Exhibit 4)(Kravec, Joseph) (Filed on 6/25/2008) (Entered: 06/25/2008)
06/25/2008 101 Memorandum in Opposition re 42 MOTION to Dismiss First Amended
Complaint, 46 MOTION to Dismiss of Washington Mutual Bank, FA and
First American eAppraiseIT filed byFelton A Spears, Jr, Sidney Scholl.
(Kravec, Joseph) (Filed on 6/25/2008) (Entered: 06/25/2008)
06/26/2008 102 AFFIDAVIT of Venue Pursuant to Civil Code Section 1780(c) by Felton A
Spears, Jr. (Kravec, Joseph) (Filed on 6/26/2008) (Entered: 06/26/2008)
07/03/2008 103 Memorandum in Opposition re 91 MOTION to Stay Proceedings filed
byLender Service, Inc.. (Keane, Margaret) (Filed on 7/3/2008) (Entered:
07/03/2008)
07/03/2008 104 Memorandum in Opposition re 91 MOTION to Stay Proceedings filed
byWashington Mutual Bank FA. (Rummage, Stephen) (Filed on 7/3/2008)
(Entered: 07/03/2008)
07/03/2008 105 Declaration of Stephen M. Rummage in Support of 104 Memorandum in
Opposition to Plaintiffs' Motion to Stay Proceedings filed byWashington
Mutual Bank FA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)
(Related document(s) 104 ) (Rummage, Stephen) (Filed on 7/3/2008)
(Entered: 07/03/2008)
07/03/2008 106 Joinder re 104 Memorandum in Opposition to Plaintiff's Motion to Stay
Proceedings by First American Eappraiseit. (Fowler, Laura) (Filed on
7/3/2008) (Entered: 07/03/2008)
07/08/2008 107 CLERK'S NOTICE Continuing Motion Hearing on Plaintiff's Motion to Stay
Proceedings. Motion Hearing set for 8/15/2008 09:00 AM in Courtroom 6,
4th Floor, San Jose. (jg, COURT STAFF) (Filed on 7/8/2008) (Entered:
07/08/2008)
07/11/2008 108 NOTICE by Felton A Spears, Jr re 107 Clerk's Notice Continuing Motion
Hearing (Attachments: # 1 Proof of Service)(Spielberg, Janet) (Filed on
7/11/2008) (Entered: 07/11/2008)
07/11/2008 109 Reply Memorandum of Points and Authorities in Support of 91 Plaintiffs'
Motion to Stay Proceedings filed byFelton A Spears, Jr, Sidney Scholl.
(Braun, Michael) (Filed on 7/11/2008) Modified on 7/15/2008 linking entry to
document #91 (dhm, COURT STAFF). (Entered: 07/11/2008)
07/11/2008 110 Declaration of Michael D. Braun in Support of 109 Reply Memorandum of
Points and Authorities in Support of Plaintiffs' Motion to Stay
Proceedings filed byFelton A Spears, Jr, Sidney Scholl. (Attachments:
# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E,
# 6 Affidavit of Service)(Related document(s) 109 ) (Braun, Michael) (Filed
on 7/11/2008) (Entered: 07/11/2008)
07/23/2008 111 CLERK'S NOTICE Continuing Motion Hearing on Defendants Washington
Mutual Bank, EAppaiseIT, and LSI Appraisal's Motion to Dismiss and
Continuing the Case Management Conference: Motion Hearing set for
9/19/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. Case Management
Conference reset for 9/19/2009 10:30 AM in Courtroom 6, 4th Floor, San
Jose. (jg, COURT STAFF) (Filed on 7/23/2008) (Entered: 07/23/2008)
07/23/2008 Set/Reset Hearings: Case Management Conference set for 9/19/2008 10:30
AM. (jg, COURT STAFF) (Filed on 7/23/2008) (Entered: 07/23/2008)
07/31/2008 112 NOTICE by Felton A Spears, Jr, Sidney Scholl re 97 MOTION for
Discovery (Jurisdictional); Notice of Motion and Supporting
Memorandum (RESCHEDULED) (Kravec, Joseph) (Filed on 7/31/2008)
(Entered: 07/31/2008)
07/31/2008 Set Deadline as to 97 MOTION for Discovery (Jurisdictional. Motion
Hearing set for 10/7/2008 10:00 AM. (dhm, COURT STAFF) (Filed on
7/31/2008) (Entered: 08/01/2008)
08/01/2008 113 Reply to 48 MOTION to Dismiss filed by Lender Service, Inc.. (Man, Kris)
(Filed on 8/1/2008) Modified text on 8/5/2008 (dhm, COURT STAFF).
(Entered: 08/01/2008)
08/01/2008 114 Reply in Support of 46 motion to dismiss filed by First American Eappraiseit.
(Fogarty, Michael) (Filed on 8/1/2008) Modified on 8/5/2008 linking entry to
document #46 (dhm, COURT STAFF). (Entered: 08/01/2008)
08/01/2008 115 Reply in Support of 42 MOTION to Dismiss First Amended Complaint filed
by Washington Mutual Bank FA. (Rummage, Stephen) (Filed on 8/1/2008)
Modified text on 8/5/2008 (dhm, COURT STAFF). (Entered: 08/01/2008)
08/01/2008 116 Request for Judicial Notice re 115 Reply to Opposition, 42 MOTION to
Dismiss First Amended Complaint filed byWashington Mutual Bank FA.
(Attachments: # 1 Exhibit Exs. A & B)(Related document(s) 115 , 42 )
08/01/2008 117 Declaration of Kris H. Man in Support of 113 Reply to Opposition filed
byLender Service, Inc.. (Attachments: # 1 Exhibit A)(Related
document(s) 113 ) (Man, Kris) (Filed on 8/1/2008) (Entered: 08/01/2008)
08/15/2008 118 Minute Entry: Motion Hearing held on 8/15/2008 before Ronald M. Whyte
(Date Filed: 8/15/2008) re 91 MOTION to Stay Proceedingsfiled by Felton A
Spears, Jr., Sidney Scholl. Motion Hearing on Defendant's Motion to Dismiss
reset for 10/17/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Court
Reporter Lee-Anne Shortridge.) (jg, COURT STAFF) (Date Filed: 8/15/2008)
(Entered: 08/20/2008)
08/20/2008 119 CLERK'S NOTICE OF CONTINUANCE OF CASE MANAGEMENT
CONFERENCE: Case Management Conference set for 10/17/2008 10:30
AM. (jg, COURT STAFF) (Filed on 8/20/2008) (Entered: 08/20/2008)
10/03/2008 120 MOTION for Discovery re: Jurisdiction filed by Felton A Spears, Jr, Sidney
Scholl. Motion Hearing set for 11/18/2008 10:00 AM in Courtroom 2, 5th
Floor, San Jose. (Kravec, Joseph) (Filed on 10/3/2008) (Entered: 10/03/2008)
10/13/2008 121 STIPULATION and [Proposed] Order re CMC and MTD Dates by Sidney
Scholl. (Braun, Michael) (Filed on 10/13/2008) (Entered: 10/13/2008)
10/14/2008 122 STIPULATION AND [PROPOSED ORDER] Re: Staying Briefing and
Adjourning Hearing Date for Motion for Jurisdictional Discovery by Lender
Service, Inc.. (Attachments: # 1 Proof of Service)(Man, Kris) (Filed on
10/14/2008) (Entered: 10/14/2008)
10/15/2008 123 STIPULATION AND ORDER 121 to Continue Motion Hearing on
Defendant's Motion to Dismiss and Case Management Conference: Case
Management Conference set for 11/21/2008 10:30 AM. Motion Hearing set
for 11/21/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by
Judge Ronald M. Whyte on 10/15/08. (jg, COURT STAFF) (Filed on
10/15/2008) (Entered: 10/15/2008)
10/21/2008 124 STIPULATION AND ORDER staying briefing and continuing hearing date
on 97 plaintiffs' motion for jurisdictional discovery. Motion hearing continued
to 12/16/2008, 10:00 AM. Signed by Magistrate Judge Howard R. Lloyd on
10/21/2008. (hrllc2, COURT STAFF) (Filed on 10/21/2008) (Entered:
10/21/2008)
11/03/2008 125 STIPULATION and [Proposed] Order to Substitute the Federal Deposit
Insurance Corporation, as Receiver for Washington Mutual Bank, as Real
Party in Interest by Washington Mutual Bank FA. (Lloyd, Jonathan) (Filed on
11/3/2008) (Entered: 11/03/2008)
11/03/2008 126 STIPULATION and [Proposed] Order to Stay Proceedings by Washington
Mutual Bank FA. (Lloyd, Jonathan) (Filed on 11/3/2008) (Entered:
11/03/2008)
11/18/2008 127 STIPULATION AND ORDER 126 to Stay Proceedings. Case is Stayed for 90
Days. Case Management Conference set for 2/13/2009 10:30 AM. Motion
Hearing on Defendant's Motions to Dismiss Plaitniff's First Amended
Complaint set for 2/13/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose.
Signed by Judge Ronald M. Whyte on 11/18/08. (jg, COURT STAFF) (Filed
on 11/18/2008) (Entered: 11/18/2008)
11/18/2008 128 CLERKS NOTICE re Motion Hearing. Motion Hearing re 97 set for
3/10/2009 10:00 AM in Courtroom 2, 5th Floor, San Jose. (hrllc2, COURT
11/19/2008 129 STIPULATION AND ORDER 125 to Substitute the FDIC, as Receiver for
Washington Mutual Bank, as Real Party in Interest. Signed by Judge Ronald
M. Whyte on 11/19/08. (jg, COURT STAFF) (Filed on 11/19/2008) (Entered:
11/19/2008)
12/05/2008 130 APPLICATION of Ryan E. Bull for Admission Pro Hac Vice ( Filing fee $
210, receipt number 54611004321) filed by Federal Deposit Insurance
Corporation. (dhm, COURT STAFF) (Filed on 12/5/2008) (Entered:
12/10/2008)
12/05/2008 131 Proposed Order re 130 APPLICATION of Ryan E. Bull for Admission Pro
Hac Vice ( Filing fee $ 210, receipt number 54611004321) by Federal Deposit
Insurance Corporation. (dhm, COURT STAFF) (Filed on 12/5/2008)
(Entered: 12/10/2008)
12/05/2008 132 APPLICATION of David A. Super for Admission Pro Hac Vice ( Filing fee $
12/10/2008)
12/05/2008 133 Proposed Order re 132 APPLICATION of David A Super for Admission Pro
(Entered: 12/10/2008)
12/05/2008 134 APPLICATION of Stephen M. Ng for Admission Pro Hac Vice ( Filing fee $
12/10/2008)
12/05/2008 135 Proposed Order re 134 APPLICATION of Stephen M. Ng for Admission Pro
(Entered: 12/10/2008)
12/16/2008 136 ORDER by Judge Ronald M. Whyte Granting 130 Motion for Pro Hac Vice
for Attorney Ryan E. Bull. (jg, COURT STAFF) (Filed on 12/16/2008)
(Entered: 12/16/2008)
for Attorney David A. Super. (jg, COURT STAFF) (Filed on 12/16/2008)
(Entered: 12/16/2008)
for Attorney Stephen M. Ng. (jg, COURT STAFF) (Filed on 12/16/2008)
(Entered: 12/16/2008)
01/28/2009 139 NOTICE of Change of Address by Michael T. Fogarty (Fogarty, Michael)
(Filed on 1/28/2009) (Entered: 01/28/2009)
02/03/2009 140 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d
filed byFirst American Eappraiseit. (Fogarty, Michael) (Filed on 2/3/2009)
(Entered: 02/03/2009)
02/04/2009 141 STIPULATION of Dismissal of Claims Against Federal Deposit Insurance
Corporation, as Receiver for Washington Mutual Bankby Felton A Spears, Jr,
Sidney Scholl. (Kravec, Joseph) (Filed on 2/4/2009) (Entered: 02/04/2009)
02/05/2009 142 MOTION TO SUBMIT ARGUMENT IN RESPONSE TO ARGUMENT IN
DEFENDANT, E-APPRAISIT'S STATEMENT OF RECENT DECISION ;
DECLARATION OF IRA SPIRO filed by Felton A Spears, Jr, Sidney Scholl.
(Attachments: # 1 Proposed Order GRANTING PLAINTIFFS' MOTION
FOR ADMINISTRATIVE RELIEF TO SUBMIT ARGUMENT IN
RESPONSE TO ARGUMENT IN DEFENDANT, E-APPRAISIT'S
STATEMENT OF RECENT DECISION)(Spiro, Robert) (Filed on 2/5/2009)
(Entered: 02/05/2009)
02/06/2009 143 CASE MANAGEMENT STATEMENT (JOINT) filed by Felton A Spears, Jr,
Sidney Scholl. (Kravec, Joseph) (Filed on 2/6/2009) (Entered: 02/06/2009)
02/11/2009 144 Statement re 48 MOTION to Dismiss : Notice of Motion; Motion to Dismiss;
and Memorandum in Support of Motion to Dismiss,46 MOTION to
Dismiss (of Recent Decision) by Felton A Spears, Jr, Sidney Scholl.
(Attachments: # 1 Exhibit A)(Kravec, Joseph) (Filed on 2/11/2009) (Entered:
02/11/2009)
02/17/2009 145 Memorandum in Opposition re 97 Motion for Jurisdictional Discovery filed
byLender Service, Inc.. (Keane, Margaret) (Filed on 2/17/2009) (Entered:
02/17/2009)
02/24/2009 146 Reply Memorandum re 97 MOTION for Discovery (Jurisdictional); Notice
of Motion and Supporting Memorandum filed byFelton A Spears, Jr, Sidney
Scholl. (Kravec, Joseph) (Filed on 2/24/2009) (Entered: 02/24/2009)
03/09/2009 147 ORDER by Judge Whyte finding as moot 42 Washington Mutual, Inc.'s
Motion to Dismiss; granting in part and denying in part 46 First American
EAppraiseit's Motion to Dismiss; granting 48 Lender's Services, Inc.'s Motion
to Dismiss. (rmwlc2, COURT STAFF) (Filed on 3/9/2009) (Entered:
03/09/2009)
03/09/2009 148 ORDER by Magistrate Judge Howard R. Lloyd denying 97 without prejudice
plaintiff's motion for jurisdictional discovery. Motion hearing set for
3/10/2009 is vacated. (hrllc2, COURT STAFF) (Filed on 3/9/2009) (Entered:
03/09/2009)
03/30/2009 149 AMENDED COMPLAINT (SECOND) against First American Eappraiseit,
Lender Service, Inc.. Filed byJuan Bencosme, Carmen Bencosme, Felton A
Spears, Jr, Sidney Scholl. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2,
# 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6Exhibit 6)(Kravec, Joseph)
(Filed on 3/30/2009) (Entered: 03/30/2009)
03/30/2009 150 MOTION to Intervene filed by Sidney Scholl. Motion Hearing set for
5/8/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments:
# 1 Memorandum in Support of Motion to Intervene, # 2 Proposed Order)
(Braun, Michael) (Filed on 3/30/2009) (Entered: 03/30/2009)
04/03/2009 151 Transcript of Proceedings held on 02/13/09, before Judge Ronald M. Whyte.
Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-
287-4580. Per General Order No. 59 and Judicial Conference policy, this
transcript may be viewed only at the Clerks Office public terminal or may be
purchased through the Court Reporter/Transcriber until the deadline for the
Release of Transcript Restriction.After that date it may be obtained through
PACER. Any Notice of Intent to Request Redaction, if required, is due no
later than 5 business days from date of this filing. Release of Transcript
Restriction set for 6/29/2009. (las, ) (Filed on 4/3/2009) (Entered: 04/03/2009)
04/07/2009 152 NOTICE by Felton A Spears, Jr, Sidney Scholl (Spiro, Robert) (Filed on
4/7/2009) (Entered: 04/07/2009)
04/10/2009 153 NOTICE by Lender Service, Inc. Administrative Motion Seeking Order Re:
Briefing Schedule and Adjournment of Hearing Date for Motion to
Intervene. (Papalaskaris, Angela) (Filed on 4/10/2009) (Entered: 04/10/2009)
04/10/2009 154 STIPULATION re 153 Notice (Other) Stipulation and [Proposed] Order Re:
Briefing Schedule and Adjournment of Hearing Date for Motion to
Intervene. by Lender Service, Inc.. (Papalaskaris, Angela) (Filed on
4/10/2009) (Entered: 04/10/2009)
04/21/2009 155 MOTION to Dismiss ; Memorandum of Points and Authorities in Support of
Motion to Dismiss and in Opposition to Motion to Intervene filed by Lender
Service, Inc.. Motion Hearing set for 6/5/2009 09:00 AM in Courtroom 6, 4th
Floor, San Jose. (Keane, Margaret) (Filed on 4/21/2009) (Entered:
04/21/2009)
04/21/2009 156 MOTION to Dismiss ; Memorandum of Points and Authorities in Support of
Motion to Dismiss filed by First American Eappraiseit. Motion Hearing set for
6/5/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Fogarty, Michael)
(Filed on 4/21/2009) (Entered: 04/21/2009)
05/01/2009 157 MOTION to Strike 156 MOTION to Dismiss ; Memorandum of Points and
Authorities in Support of Motion to DismissPLAINTIFFS MOTION TO
STRIKE PORTIONS OF DEFENDANT eAppraiseIT, LLCs MOTION TO
DISMISS filed by Felton A Spears, Jr. Motion Hearing set for 6/5/2009 09:00
AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Proposed Order)
(Moore, James) (Filed on 5/1/2009) (Entered: 05/01/2009)
05/07/2009 158 STIPULATION AND ORDER 154 Re: Briefing Schedule and Adjournment
of Hearing Date for Motion to Intervene. Motion Hearing set for 6/5/2009
09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge Ronald M.
Whyte on 5/7/09. (jg, COURT STAFF) (Filed on 5/7/2009) (Entered:
05/07/2009)
05/15/2009 159 Reply Memorandum re 150 MOTION to Intervene by Putative Class
Members Juan and Carmen Bencosme filed byFelton A Spears, Jr, Sidney
Scholl, Juan Bencosme, Carmen Bencosme. (Kravec, Joseph) (Filed on
5/15/2009) (Entered: 05/15/2009)
05/15/2009 160 Memorandum in Opposition re 156 MOTION to Dismiss ; Memorandum of
Points and Authorities in Support of Motion to Dismissfiled byFelton A
Spears, Jr, Sidney Scholl, Juan Bencosme, Carmen Bencosme. (Kravec,
05/15/2009 161 Memorandum in Opposition re 155 MOTION to Dismiss ; Memorandum of
Points and Authorities in Support of Motion to Dismiss and in Opposition to
Motion to Intervene filed byFelton A Spears, Jr, Sidney Scholl, Juan
Bencosme, Carmen Bencosme. (Kravec, Joseph) (Filed on 5/15/2009)
(Entered: 05/15/2009)
05/15/2009 162 Memorandum in Opposition to Motion to Strike filed byFirst American
Eappraiseit. (Fogarty, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
05/22/2009 163 Reply Memorandum of Points and Authorities in Support of Motion To
Dismiss filed byFirst American Eappraiseit. (Fogarty, Michael) (Filed on
5/22/2009) (Entered: 05/22/2009)
05/22/2009 164 NOTICE of Change of Address by Michael T. Fogarty (Fogarty, Michael)
(Filed on 5/22/2009) (Entered: 05/22/2009)
05/22/2009 165 Reply Memorandum re 157 MOTION to Strike 156 MOTION to Dismiss ;
Memorandum of Points and Authorities in Support of Motion to
Dismiss PLAINTIFFS MOTION TO STRIKE PORTIONS OF DEFENDANT
eAppraiseIT, LLCs MOTION TO DISMISSMOTION to Strike 156 MOTION
to Dismiss ; Memorandum of Points and Authorities in Support of Motion to
DismissPLAINTIFFS MOTION TO STRIKE PORTIONS OF DEFENDANT
eAppraiseIT, LLCs MOTION TO DISMISS filed byFelton A Spears, Jr.
(Moore, James) (Filed on 5/22/2009) (Entered: 05/22/2009)
05/26/2009 166 Reply Memorandum re 155 MOTION to Dismiss ; Memorandum of Points
and Authorities in Support of Motion to Dismiss and in Opposition to Motion
to Intervene Defendant LSI Appraisal, LLC's Reply Memorandum of Law in
Support of Motion to Dismissfiled byLender Service, Inc.. (Attachments:
# 1 Exhibit A)(Keane, Margaret) (Filed on 5/26/2009) (Entered: 05/26/2009)
05/26/2009 167 Declaration of Kevin C. Wallace in Support of 166 Reply
Memorandum, Declaration of Kevin C. Wallace Regarding ECF System
Unavailability filed byLender Service, Inc.. (Related document(s) 166 )
(Keane, Margaret) (Filed on 5/26/2009) (Entered: 05/26/2009)
(Date Filed: 6/5/2009) re 156 MOTION to Dismiss ; Memorandum of Points
and Authorities in Support of Motion to Dismiss filed by First American
Eappraiseit, 155 MOTION to Dismiss ; Memorandum of Points and
Authorities in Support of Motion to Dismiss and in Opposition to Motion to
Intervene filed by Lender Service, Inc., 150 MOTION to Intervene filed by
Sidney Scholl, 157 MOTION to Strike 156 MOTION to Dismiss ;
Memorandum of Points and Authorities in Support of Motion to
eAppraiseIT, LLCs MOTION TO DISMISS MOTION to Strike 156 MOTION
to Dismiss ; Memorandum of Points and Authorities in Support of Motion to
eAppraiseIT, LLCs MOTION TO DISMISS filed by Felton A Spears, Jr..
(Court Reporter Lee-Anne Shortridge.) (jg, COURT STAFF) (Date Filed:
6/5/2009) (Entered: 06/10/2009)
08/30/2009 169 ORDER by Judge Whyte denying 150 Motion to Intervene;
granting 155 Motion to Dismiss; granting in part and denying in
part 156Motion to Dismiss; denying 157 Motion to Strike. (rmwlc2, COURT
09/11/2009 170 CLERKS NOTICE OF SETTING CASE MANAGEMENT CONFERENCE:
Case Management Conference set for 9/25/2009 10:30 AM in Courtroom 6,
4th Floor, San Jose. Joint Case Management Statement due by 9/21/2009. (jg,
09/14/2009 171 ANSWER to Amended Complaint and Affirmative Defenses byFirst American
Eappraiseit. (Fogarty, Michael) (Filed on 9/14/2009) (Entered: 09/14/2009)
09/21/2009 172 CASE MANAGEMENT STATEMENT (JOINT) filed by Sidney Scholl,
Felton A Spears, Jr. (Kravec, Joseph) (Filed on 9/21/2009) (Entered:
09/21/2009)
09/22/2009 173 *** E-FILED IN ERROR - PLEASE IGNORE ENTRY *** ORDER
continuing hearing on 24 motion for entry of judgment. Signed by Judge
Whyte on 9/20/09. (rmwlc3, COURT STAFF) (Filed on 9/22/2009) Modified
on 9/22/2009 (jg, COURT STAFF). (Entered: 09/22/2009)
09/23/2009 174 CLERKS NOTICE Rescheduling Case Management Conference set for
10/2/2009 10:30 AM the Honorable Ronald M. Whyte in Courtroom 6, 4th
Floor, San Jose. Case Management Statement due by 9/25/2009. (cm, COURT
10/02/2009 175 Minute Entry: Initial Case Management Conference held on 10/2/2009 before
Ronald M. Whyte (Date Filed: 10/2/2009). Further Case Management
Conference set for 4/23/2010 10:30 AM in Courtroom 6, 4th Floor, San Jose.
Jose. (Court Reporter Not Reported.) (jg, COURT STAFF) (Date Filed:
10/2/2009) (Entered: 10/08/2009)
10/27/2009 176 STIPULATION for Protective Order by Sidney Scholl, Felton A Spears, Jr.
(Kravec, Joseph) (Filed on 10/27/2009) (Entered: 10/27/2009)
11/02/2009 177 STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT)
re 176 . Signed by Magistrate Judge Howard R. Lloyd on 11/2/2009. (hrllc2,
11/13/2009 178 MOTION to Stay AND MOTION BY EAPPRAISEIT, LLC FOR
CERTIFICATION OF INTERLOCUTORY APPEAL filed by First American
Eappraiseit. Motion Hearing set for 1/8/2010 09:00 AM in Courtroom 6, 4th
Floor, San Jose. (Fogarty, Michael) (Filed on 11/13/2009) (Entered:
11/13/2009)
11/13/2009 179 STIPULATION SETTING FORTH BRIEFING SCHEDULE by First
American Eappraiseit. (Fogarty, Michael) (Filed on 11/13/2009) (Entered:
11/13/2009)
12/04/2009 180 Memorandum in Opposition re 178 MOTION to Stay AND MOTION BY
EAPPRAISEIT, LLC FOR CERTIFICATION OF INTERLOCUTORY
APPEAL filed byFelton A Spears, Jr. (Moore, James) (Filed on 12/4/2009)
(Entered: 12/04/2009)
12/18/2009 181 Reply Memorandum IN SUPPORT OF 178 MOTION BY EAPPRAISEIT,
LLC FOR CERTIFICATION OF INTERLOCUTORY APPEAL AND FOR A
STAY filed by First American Eappraiseit. (Fogarty, Michael) (Filed on
12/18/2009) Modified on 1/4/2010 counsel failed to link entry to document
#178 (dhm, COURT STAFF). (Entered: 12/18/2009)
01/08/2010 182 ORDER by Judge Whyte denying 178 motion for certification of
interlocutory appeal and for a stay. (rmwlc2, COURT STAFF) (Filed on
1/8/2010) (Entered: 01/08/2010)
(Date Filed: 1/8/2010) re 178 MOTION to Stay AND MOTION BY
EAPPRAISEIT, LLC FOR CERTIFICATION OF INTERLOCUTORY
APPEAL filed by First American Eappraiseit. (Court Reporter Lee-Anne
Shortridge.) (jg, COURT STAFF) (Date Filed: 1/8/2010) (Entered:
01/27/2010)
02/03/2010 184 STIPULATION (Joint) and Proposed Case Management Scheduling Order
Amending Order Entered on October 2, 2009 by Sidney Scholl, Felton A
Spears, Jr. (Kravec, Joseph) (Filed on 2/3/2010) (Entered: 02/03/2010)
02/12/2010 185 STIPULATION AND Case Management ORDER 184 . Motion Hearing set
for 7/2/2010 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge
Ronald M. Whyte on 2/9/10. (jg, COURT STAFF) (Filed on 2/12/2010)
(Entered: 02/12/2010)
03/31/2010 186 NOTICE by Sidney Scholl, Felton A Spears, Jr of Change of Firm (Kravec,
05/04/2010 187 NOTICE of Appearance by Francesca Leigh Cicero (Cicero, Francesca)
(Filed on 5/4/2010) (Entered: 05/04/2010)
05/07/2010 188 MOTION to Seal (Administrative Motion) filed by Felton A Spears, Jr.
Jose. (Attachments: # 1 Affidavit)(Braun, Michael) (Filed on 5/7/2010)
(Entered: 05/07/2010)
05/07/2010 189 NOTICE OF MOTION, MOTION for Class Certification; and Memorandum
in Support [REDACTED] filed by Felton A Spears, Jr. Motion Hearing set for
7/2/2010 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments:
# 1 Proposed Order)(Braun, Michael) (Filed on 5/7/2010) Modified text on
5/11/2010 to conform with document caption (dhm, COURT STAFF).
(Entered: 05/07/2010)
05/07/2010 190 Declaration of Michael D. Braun in Support of 189 MOTION for Class
Certification [REDACTED] filed by Felton A Spears, Jr. (Attachments:
# 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Related document(s) 189 )
(Braun, Michael) (Filed on 5/7/2010) Modified text on 5/11/2010 to conform
with document caption (dhm, COURT STAFF). (Entered: 05/07/2010)
05/07/2010 191 CERTIFICATE OF SERVICE by Felton A Spears, Jr re 189 MOTION for
Class Certification and Memorandum in Support, 190Declaration of Michael
D. Braun in Support, (Braun, Michael) (Filed on 5/7/2010) Modified text on
5/11/2010 (dhm, COURT STAFF). (Entered: 05/07/2010)
05/07/2010 Received Notice of Motion and Motion SUBMITTED UNDER SEAL (dhm,
05/13/2010 192 ORDER re 188 MOTION to Seal. Signed by Judge Whyte on 5/13/10.
(rmwlc2, COURT STAFF) (Filed on 5/13/2010) (Entered: 05/13/2010)
05/14/2010 193 MOTION to Withdraw at Attorney; PROPOSED ORDER by First American
Eappraiseit (Fogarty, Michael) (Filed on 5/14/2010) Modified on 5/17/2010
(dhm, COURT STAFF). (Entered: 05/14/2010)
05/20/2010 194 RESPONSE to re 192 Order Regarding Motion to Seal by Felton A Spears, Jr.
05/24/2010 195 ORDER by Judge Whyte denying 188 Motion to Seal. (rmwlc2, COURT
05/24/2010 196 ORDER by Judge Ronald M. Whyte Granting 193 Motion to Withdraw as
Attorney. Attorney Michael T. Fogarty and Laura Jean Fowler terminated
(jgS, COURT STAFF) (Filed on 5/24/2010) (Entered: 05/24/2010)
05/25/2010 197 MOTION to Certify Class (UNREDACTED) filed by Felton A Spears, Jr.
Jose. (Attachments: # 1 Proposed Order)(Braun, Michael) (Filed on
5/25/2010) (Entered: 05/25/2010)
05/25/2010 198 Declaration of Michael D. Braun in Support of 197 MOTION to Certify
Class (UNREDACTED) filed byFelton A Spears, Jr. (Attachments: # 1 Exhibit
A, # 2 Exhibit B-J, # 3 Exhibit K-O, # 4 Exhibit P, # 5 Exhibit Q-W,
# 6 Exhibit X-BB)(Related document(s)197 ) (Braun, Michael) (Filed on
5/25/2010) (Entered: 05/25/2010)
05/25/2010 199 CERTIFICATE OF SERVICE by Felton A Spears, Jr re 197 MOTION to
Certify Class (UNREDACTED), 198 Declaration in Support, (Braun,
Michael) (Filed on 5/25/2010) (Entered: 05/25/2010)
06/02/2010 200 NOTICE of Appearance by Carter Winford Ott (Ott, Carter) (Filed on
6/2/2010) (Entered: 06/02/2010)
06/04/2010 201 Memorandum in Opposition re 197 MOTION to Certify
Class (UNREDACTED) filed byFirst American Eappraiseit. (Ott, Carter)
(Filed on 6/4/2010) (Entered: 06/04/2010)
06/04/2010 202 Declaration of Richard F. Hans in Support of 201 Memorandum in
Opposition to Motion for Class Certification filed byFirst American
Eappraiseit. (Attachments: # 1 Volume 2 of 3, # 2 Volume 3 of 3)(Related
document(s) 201 ) (Ott, Carter) (Filed on 6/4/2010) (Entered: 06/04/2010)
06/18/2010 203 Reply Memorandum re 189 NOTICE OF MOTION, MOTION for Class
Certification, 197 MOTION to Certify Class(UNREDACTED) filed bySidney
Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on 6/18/2010) (Entered:
06/18/2010)
06/22/2010 204 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-
3.d Concerning Plaintiffs' Motion for Class Certificationfiled bySidney
Scholl, Felton A Spears, Jr. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)
(Related document(s) 189 , 197 ) (Spielberg, Janet) (Filed on 6/22/2010)
(Entered: 06/22/2010)
06/22/2010 205 Declaration of Michael D. Braun in Support of 189 NOTICE OF MOTION,
MOTION for Class Certification (SUPPLEMENTAL) filed bySidney Scholl.
(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related
document(s) 189 ) (Braun, Michael) (Filed on 6/22/2010) (Entered:
06/22/2010)
06/25/2010 206 Memorandum in Response to 204 Plaintiffs' Statement of Recent Decision by
First American Eappraiseit. (Gross, David) (Filed on 6/25/2010) Modified on
7/1/2010 counsel failed to link entry to document #204 (dhm, COURT
06/30/2010 207 STIPULATION AND [PROPOSED] ORDER CONTINUING CASE
MANAGEMENT CONFERENCE by First American Eappraiseit. (Ott, Carter)
(Filed on 6/30/2010) (Entered: 06/30/2010)
06/30/2010 208 STIPULATION AND ORDER 207 Continuing Case Management
Conference. Signed by Judge Ronald M. Whyte on 6/30/10. (jg, COURT
07/02/2010 209 ORDER by Judge Whyte denying without prejudice 189 , 197 Motion to
Certify Class. (rmwlc2, COURT STAFF) (Filed on 7/2/2010) (Entered:
07/02/2010)
(Date Filed: 7/2/2010) re 197 MOTION to Certify
Class(UNREDACTED) filed by Felton A Spears, Jr.. (Court Reporter Gina
Colin.) (jg, COURT STAFF) (Date Filed: 7/2/2010) (Entered: 07/07/2010)
07/19/2010 211 JOINT CASE MANAGEMENT STATEMENT filed by Sidney Scholl.
07/21/2010 212 Transcript of Proceedings held on July 2, 2010, before Judge Ronald M.
Whyte. Court Reporter/Transcriber Georgina Galvan Colin, Telephone
number (408) 888-6697. Per General Order No. 59 and Judicial Conference
policy, this transcript may be viewed only at the Clerks Office public terminal
or may be purchased through the Court Reporter/Transcriber until the
deadline for the Release of Transcript Restriction.After that date it may be
obtained through PACER. Any Notice of Intent to Request Redaction, if
required, is due no later than 5 business days from date of this filing. Release
of Transcript Restriction set for 10/19/2010. (mz, COURT STAFF) (Filed on
7/21/2010) (Entered: 07/21/2010)
08/13/2010 214 Minute Entry: Initial Case Management Conference held on 8/13/2010 before
Ronald M. Whyte (Date Filed: 8/13/2010). Motion Hearing set for 1/14/2011
09:00 AM in Courtroom 6, 4th Floor, San Jose. (Court Reporter Not
Reported.) (jg, COURT STAFF) (Date Filed: 8/13/2010) (Entered:
08/25/2010)
08/23/2010 213 Transcript of Proceedings held on July 2, 2010, before Judge Ronald M.
Whyte. Court Reporter/Transcriber Georgina Galvan Colin, Telephone
number (408) 888-6697. Per General Order No. 59 and Judicial Conference
policy, this transcript may be viewed only at the Clerks Office public terminal
or may be purchased through the Court Reporter/Transcriber until the
deadline for the Release of Transcript Restriction.After that date it may be
obtained through PACER. Any Notice of Intent to Request Redaction, if
required, is due no later than 5 business days from date of this filing. Release
of Transcript Restriction set for 11/22/2010. (mz, COURT STAFF) (Filed on
8/23/2010) (Entered: 08/23/2010)
09/02/2010 215 STIPULATION AND [PROPOSED] ORDER SETTING BRIEFING
SCHEDULE by First American Eappraiseit. (Ott, Carter) (Filed on 9/2/2010)
(Entered: 09/02/2010)
09/15/2010 216 STIPULATION AND ORDER 215 Setting Briefing Schedule: Motion
Hearing set for 1/21/2011 09:00 AM in Courtroom 6, 4th Floor, San Jose.
Signed by Judge Ronald M. Whyte on 9/15/10. (jg, COURT STAFF) (Filed
on 9/15/2010) (Entered: 09/16/2010)
11/19/2010 217 Notice of Renewed Motion, Renewed Motion for Class Certification and
Memorandum in Support filed by Sidney Scholl, Felton A Spears, Jr. Motion
Hearing set for 1/21/2011 09:00 AM in Courtroom 6, 4th Floor, San Jose.
(Attachments: # 1 (Proposed) Order)(Kravec, Joseph) (Filed on 11/19/2010)
11/19/2010 218 Declaration of Joseph N. Kravec, Jr., Esquire in Support of Plaintiff's
Renewed Motion for Class Certifiation re 217 filed by Sidney Scholl, Felton
A Spears, Jr. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3,
# 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8,
# 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Kravec, Joseph) (Filed on
11/19/2010)
11/19/2010 219 Declaration of Joseph N. Kravec, Jr., Esquire in Support of Plaintiffs'
Renewed Motion for Class Certification Part II re 217 , 218Declaration in
Support filed by Sidney Scholl, Felton A Spears, Jr. (Attachments: # 1 Exhibit
12, # 2 Exhibit 13, # 3 Exhibit 14, # 4Exhibit 15, # 5 Exhibit 16) (Kravec,
Joseph) (Filed on 11/19/2010) Modified on 11/19/2010 (bw, COURT STAFF).
(Entered: 11/19/2010)
11/19/2010 220 Declaration of Joseph N. Kravec, Jr., Esquire in Support of in Support of
Plaintiffs' Renewed Motion for Class Certification Part III re217 filed by
Sidney Scholl, Felton A Spears, Jr. (Attachments: # 1 Exhibit 17, # 2 Exhibit
18, # 3 Exhibit 19, # 4 Exhibit 20, # 5 Exhibit 21, # 6 Exhibit 22, # 7 Exhibit
23, # 8 Exhibit 24) (Kravec, Joseph) (Filed on 11/19/2010) Modified on
11/19/2010 (bw, COURT STAFF). (Entered: 11/19/2010)
11/19/2010 221 Expert Report of Danny Wiley. SRA, IFA re 217 filed byS idney Scholl,
Felton A Spears, Jr. (Kravec, Joseph) (Filed on 11/19/2010) Text modified on
(Entered: 11/19/2010)
11/19/2010 222 Expert Report of of Gary L. French Regarding Class Certification re 217 filed
by Sidney Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on 11/19/2010)
11/19/2010 223 Administrative Motion to File Under Seal and [Proposed] Order filed by
Sidney Scholl, Felton A Spears, Jr. (Attachments: # 1 Exhibit) (Kravec,
(Entered: 11/19/2010)
11/23/2010 224 Statement of Non-Opposition to Administrative Motion to File Under Seal
re 223 filed by First American Eappraiseit. (Ott, Carter) (Filed on 11/23/2010)
12/21/2010 225 STIPULATION AND [PROPOSED] ORDER CONTINUING BRIEFING
SCHEDULE by First American Eappraiseit. (Ott, Carter) (Filed on
12/21/2010) (Entered: 12/21/2010)
12/22/2010 226 ORDER by Judge Whyte granting 223 Administrative Motion to File Under
Seal (rmwlc2, COURT STAFF) (Filed on 12/22/2010) (Entered: 12/22/2010)
12/22/2010 227 STIPULATION AND ORDER 225 Continuing Briefing Schedule: Motion
Hearing set for 6/24/2011 09:00 AM in Courtroom 6, 4th Floor, San Jose
before Hon. Ronald M. Whyte. Signed by Judge Ronald M. Whyte on
12/22/10. (jgS, COURT STAFF) (Filed on 12/22/2010) (Entered: 12/22/2010)
12/28/2010 228 ERRATA re Expert Report of Danny Wiley, SRA, IFA re 221 by Sidney
Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on 12/28/2010) Modified
on 12/29/2010 (bw, COURT STAFF). (Entered: 12/28/2010)
12/30/2010 229 DOCUMENT E-FILED UNDER SEAL re 226 Order on Administrative
Motion to File Under Seal by Sidney Scholl, Felton A Spears, Jr.
(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4,
# 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Kravec, Joseph)
(Filed on 12/30/2010) Modified on 1/5/2011 (bw, COURT STAFF). (Entered:
12/30/2010)
01/17/2011 230 Notice of Firm Name Change by Sidney Scholl, Felton A Spears, Jr (Kravec,
(Entered: 01/17/2011)
03/18/2011 231 Memorandum of Points and Authorities in Opposition to Renewed Motion for
Class Certification re ( 217 ) filed by First American Eappraiseit. (Ott, Carter)
03/18/2011)
03/18/2011 232 Declaration of Mark M. Silverstein in Support of Memorandum of Points and
Authorities in Opposition to Renewed Motion for Class Certification
03/18/2011 233 Declaration of Dow Johnson in Support of Memorandum of Points and
03/18/2011 234 Declaration of Victoria Fornito in Support of Memorandum of Points and
03/18/2011 235 Declaration in Support of Memorandum of Points and Authorities in
Opposition to Renewed Motion for Class Certification re 231 filed by First
American Eappraiseit. (Ott, Carter) (Filed on 3/18/2011) Modified on
03/18/2011 236 Declaration of Dr. Robert H. Edelstein in Support of Memorandum of Points
and Authorities in Opposition to Renewed Motion for Class Certification
re 231 filed by First American Eappraiseit. (Attachments: # 1 Exhibit-A,
# 2 Exhibit-B, # 3 Exhibit-C) (Ott, Carter) (Filed on 3/18/2011) Modified on
03/18/2011 237 Declaration of Richard F. Hans in Support of Memorandum of Points and
Authorities in Opposition to Renewed Motion for Class Certification re
( 231 ) filed by First American Eappraiseit. (Attachments: # 1 Exhibit 1,
# 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5Exhibit 5, # 6 Exhibit 6,
# 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11,
# 12 Exhibit 12, # 13 Exhibit 13, # 14Exhibit 14, # 15 Exhibit 15,
# 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18 Vol. 1, # 19 Exhibit 18 Vol.
2, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21) (Ott, Carter) (Filed on
03/18/2011)
06/03/2011 238 Reply in Support of their renewed Motion for Class Certification (re 217 filed
by Sidney Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on 6/3/2011)
06/03/2011 239 Rebuttal Report of Danny Wiley, FRICS, SRA re 217 filed bySidney Scholl,
Felton A Spears, Jr. (Kravec, Joseph) (Filed on 6/3/2011) Modified on
06/03/2011 240 Expert Report of Gary L. French Ph.D., Regarding Class Certification
re 217 filed bySidney Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on
6/3/2011) Text modified on 6/14/2011 conforming to posted document
06/03/2011 241 OBJECTIONS to the Expert Report of Dr. Robert H. Edelstein re 236 by
Sidney Scholl, Felton A Spears, Jr. (Kravec, Joseph) (Filed on 6/3/2011) Text
modified on 6/14/2011 conforming to posted document caption (bw, COURT
06/03/2011 242 Declaration of Joseph N. Kravec, Jr. in Support of Plaintiff's Reply in Support
of their Renewed Motion for Class Certification re 217 filed by Sidney
Scholl, Felton A Spears, Jr. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2,
# 3 Exhibit 3, # 4 Exhibit 4) (Kravec, Joseph) (Filed on 6/3/2011) Modified
on 6/14/2011 (bw, COURT STAFF). (Entered: 06/03/2011)
06/07/2011 243 NOTICE of Withdrawal of Objections to the Expert Report of Dr. Robert H.
Edelstein re ( 241 ) by Sidney Scholl, Felton A Spears, Jr (Kravec, Joseph)
06/07/2011)
06/21/2011 244 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d
filed by First American Eappraiseit. (Attachments: # 1Exhibit A)(Ott, Carter)
06/21/2011)
06/21/2011 Set/Reset Deadlines as to 217 MOTION to Certify Class (Renewed) and
Memorandum in Support MOTION to Certify Class(Renewed) and
Memorandum in Support. Motion Hearing set for 6/24/2011 09:00 AM in
Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. (jg, COURT
(Date Filed: 6/24/2011) re 217 MOTION to Certify Class(Renewed) and
Memorandum in Support MOTION to Certify Class (Renewed) and
Memorandum in Support filed by Felton A Spears, Jr., Sidney Scholl. (Court
Reporter Christine Bedard.) (jg, COURT STAFF) (Date Filed: 6/24/2011)
(Entered: 06/29/2011)
11/01/2011 246 Statement of Recent Decision by First American Eappraiseit. (Attachments:
# 1 Exhibit A)(Ott, Carter) (Filed on 11/1/2011) (Entered: 11/01/2011)
01/06/2012 247 NOTICE of Change of Address by Joseph N. Kravec, Jr (Kravec, Joseph)
(Filed on 1/6/2012) (Entered: 01/06/2012)
03/23/2012 248 NOTICE of Change of Firm Name by Sidney Scholl, Felton A Spears, Jr
(Moore, James) (Filed on 3/23/2012) Text modified on 3/23/2012 (bw,
04/25/2012 249 ORDER by Judge Whyte granting 217 Motion for Class Certification and
Setting Case Management Conference.(rmwlc1, COURT STAFF) (Filed on
4/25/2012) (Entered: 04/25/2012)
05/09/2012 250 STIPULATION and (PROPOSED) ORDER CONTINUING CASE
MANAGEMENT CONFERENCE filed by First American Eappraiseit. (Ott,
Carter) (Filed on 5/9/2012) Text modified on 5/10/2012 (bw, COURT
05/10/2012 251 USCA Acknowledgement receipt of PETITION FOR PERMISSION TO
APPEAL PURSUANT TO RULE 23(f). (bw, COURT STAFF) (Filed on
5/10/2012) (Entered: 05/11/2012)
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Spear s et al v. Washi ngt on Mut ual , I nc. et al
Fi l i ng: 249
ORDER by Judge Whyte granting 217 Motion for Class Certification and Setting Case
Management Conference.(rmwlc1, COURT STAFF) (Filed on 4/25/2012)
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Case: Spears et al v.
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Cour t : Northern District Court
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Ty pe: Contract: Other
Fi l i ng: 249
Fi l ed: April 25, 2012
Ret r i eved: April 26, 2012
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Fi l i ng: 226
ORDER by Judge Whyte granting 223 Administrative Motion to File Under Seal
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Fi l i ng: 209
ORDER by Judge Whyte denying without prejudice 189 , 197 Motion to Certify Class.
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Fi l i ng: 169
ORDER by Judge Whyte denying 150 Motion to Intervene; granting 155 Motion to
Dismiss; granting in part and denying in part 156 Motion to Dismiss; denying 157
Motion to Strike. (rmwlc2, COURT STAFF) (Filed on 8/30/2009)
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Fi l i ng: 147
ORDER by Judge Whyte finding as moot 42 Washington Mutual, Inc.'s Motion to
Dismiss; granting in part and denying in part 46 First American EAppraiseit's Motion to
Dismiss; granting 48 Lender's Services, Inc.'s Motion to Dismiss. (rmwlc2, COURT
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ORDER GRANTING MOTION FOR CLASS CERTIFICATION AND SETTING CASE MANAGEMENT CONFERENCE No.
C-08-00868 RMW
LJP
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E-FILED on 4/25/2012
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
FELTON A. SPEARS, JR., SIDNEY
SCHOLL, on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
FIRST AMERICAN EAPPRAISEIT (a/k/a
eAprraiseIT, LLC), a Delaware limited liability
company,
Defendant.
No. C-08-00868 RMW
ORDER GRANTING MOTION FOR CLASS
CERTIFICATION AND SETTING CASE
MANAGEMENT CONFERENCE
[Re Docket No. 217]
Plaintiffs renew their motion for class certification. For the reasons set forth below, the court
grants the motion.
I. BACKGROUND
Home purchases in the United States have traditionally been financed through a third-party
lender who retains a security interest in the property until the loan is repaid. Second Amended
Complaint ("SAC") 2. In order to ensure that the secured lender will recoup the value of the loan
if the borrower defaults before the loan is repaid, the lender generally requires that the property be
professionally appraised. Id. In recent years, however, rather than hold mortgage loans until repaid,
banks have frequently sold the loans to other financial institutions. Id. 23. This shift created an
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incentive for banks to seek higher appraisals for the properties underlying their mortgage loans. Id.
24.
Plaintiffs allege that beginning in June of 2006, Washington Mutual Bank ("WMB")
conspired with First American eAppraiseIT ("EA") and Lender's Service, Inc. ("LSI") to inflate the
appraised value of property underlying their mortgage loans so that WMB could sell the aggregated
security interests in these properties at inflated prices. Id. 6. Around June 2006, WMB retained
EA and LSI to administer its appraisal program. Id. 36. EA and LSI have since performed almost
all of WMB's appraisals, and WMB's borrowers have become EA and LSI's largest source of
business. Id. Plaintiffs allege that defendants engaged in the following conduct as part of the
conspiracy to inflate appraisals: (1) EA and LSI complied with WMB's demand that all of its
appraisals be performed by appraisers on its "Proven Appraiser List," which contained appraisers
selected by WMB's loan origination staff; (2) WMB maintained the contractual right to challenge
appraisals by requesting a reconsideration of value ("ROV") and used ROV requests to get EA and
LSI to increase appraisal values; (3) WMB requested that EA and LSI hire former WMB employees
as appraisal business managers, who had the authority to override the values determined by third-
party appraisers; and (4) EA and LSI altered appraisal reports to reflect higher property values,
remove negative references, and make other changes so that the final appraisal reports complied
with WMB's wishes. Id. 6, 37-40, 43-45.
On February 8, 2008, plaintiffs filed suit against WMB, EA, and LSI, alleging breach of
contract, unjust enrichment, and violations of the Real Estate Settlement Procedures Act ("RESPA"),
the Unfair Competition Law, and the Consumers Legal Remedies Act. The only claim remaining is
plaintiffs Felton A. Spears and Sidney Scholl's claim against EA for violation of Section 8(a) of
RESPA, 12 U.S.C. 2607(a). The court dismissed all other claims against EA in orders issued on
March 9, 2009 and August 30, 2009. In its August 30, 2009 order, the court also denied the motion
to permit Juan and Carmen Bencosme to intervene and dismissed LSI from this case.
Spears and Scholl moved for class certification on May 25, 2010. On July 2, 2010, the court
denied class certification and held that, while the class was ascertainable and the prerequisites of
Federal Rule of Civil Procedure 23(a) had been satisfied, plaintiffs had not satisfied the requirements
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The proposed class must satisfy at least one of the three requirements listed in Rule 23(b).
Plaintiffs rely on Rule 23(b)(3).
C-08-00868 RMW
LJP 3
of Rule 23(b)(3).
1
To give the parties an opportunity to address the question of whether the inflation
of appraisal values in the aggregate could be established by common proof, the court denied the
motion for class certification without prejudice.
II. ANALYSIS
Rule 23(b)(3) requires that "questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
A. Predominance
The predominance inquiry "tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.
1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). The mere existence of
common issues of fact or law is insufficient, as such commonality is already required by Rule
23(a)(2). Predominance is met where common questions, which can be resolved for all members on
a class-wide basis, are such a significant aspect of the case that they present "a clear justification for
handling the dispute on a representative rather than on an individual basis." Id.
Section 8(a) of RESPA provides that "[n]o person shall give and no person shall accept any
fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that
business incident to or part of a real estate settlement service involving a federally related mortgage
loan shall be referred to any person." 12 U.S.C. 2607(a). Plaintiffs' theory of liability is that,
pursuant to an agreement, EA gave and WMB accepted inflated appraisals in exchange for WMB's
referring appraisal business to EA. This court previously held that an individual has standing to
bring a RESPA claim if his appraisal was part of a volume of appraisal business that was referred to
EA in exchange for inflated appraisals. Dkt. No. 209 at 8. Thus, plaintiffs need not prove that each
or any particular member of the class received an inflated appraisal. Id. at 7-9. However, plaintiffs
must still make some showing that WMB obtained a "thing of value" as a result of its agreement
with EA. Id. at 9. The court found the mere fact that EA made changes in the way the appraisal
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function was accomplished (such as selecting appraisers from a Proven Appraiser List) did not
establish that WMB received a "thing of value" without evidence that those changes actually
resulted in inflated appraisals. Id. Thus, plaintiffs must establish that WMB received appraisal
values that were inflated in the aggregate. Id. at 7-8.
At the class certification stage, the court is not to render a decision on the merits of plaintiffs'
claim. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). However, some preliminary
inquiry into the merits may be necessary where those issues overlap with the requirements of Rule
23. Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before
Trial 10:578 (2011); see Coopers & Lybrand v. Lindsey, 437 U.S. 463, 469 (1978) ("[T]he class
determination generally involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action." (internal quotation omitted)). Here, in order to satisfy the
predominance requirement, plaintiffs must show that their key contentions that the alleged
agreement existed and was carried out, and that WMB received appraisals that were inflated in the
aggregate are subject to common proof.
1. Evidence of a Conspiracy to Inflate Appraisal Values
In their papers, plaintiffs provide a survey of common evidence they argue will help in
showing an agreement between EA and WMB. Plaintiffs identify various practices and changes in
procedure by EA that allegedly were designed to ensure WMB received appraisals that supported
the loan amount requested by the borrower, even if that required inflating the appraised value.
Plaintiffs argue that the central inquiry regarding the existence and implementation of a conspiracy
focuses on defendant's conduct and therefore will not require any individualized inquiry. Relying
mostly on price-fixing antitrust cases, plaintiffs argue that cases alleging an overarching conspiracy
are routinely certified. See, e.g., In re Static Random Access Memory Antitrust Litig., 264 F.R.D.
603, 611 (N.D. Cal. 2009) ("In price-fixing cases, courts repeatedly have held that the existence of
the conspiracy is the predominant issue and warrants certification even where significant individual
issues are present." (citation omitted)).
Defendant argues that plaintiffs' evidence fails to show a conspiracy existed and in fact
"demonstrates that the EA-WaMu relationship was complex and evolving from beginning to end."
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Defendant characterizes the evidence as showing that EA resisted WMB's efforts to improperly
influence the appraisal process and even lost business from WMB in its efforts to maintain
independence and comply with the Uniform Standards of Professional Appraisal Practice
("USPAP"). Because the relationship continued to change, defendant argues, individualized inquiry
is necessary to determine what the parties' agreement was at the time that a specific appraisal was
performed.
Much of defendant's argument appears directed at the merits of plaintiffs' claim, which the
court cannot adjudicate at the class certification stage. For now, it suffices that plaintiffs have
alleged a single, overriding agreement and shown that some amount of common evidence exists
from which a conspiracy could be inferred. Defendant's attempt to recharacterize plaintiffs'
evidence as reflecting a changing situation and no agreement cannot defeat certification. See In re
TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 607 (N.D. Cal. 2010) (rejecting defendants'
argument that there were actually multiple conspiracies, holding "defendants may not recast
plaintiffs' allegations, and plaintiffs have consistently alleged a single, overriding conspiracy
spanning the entire class period"). In addition, the mere fact that the relationship between EA and
WMB was contentious does not demonstrate that they did not conspire to inflate appraisal values,
and even if EA implemented policies designed to inflate appraisal values only in response to
pressure from WMB, that may still constitute an agreement or understanding in violation of RESPA.
Defendant does fairly present the concern that different practices were in place at different
times, such that the timing of individual appraisals may matter. However, the overarching inquiry
still relates to the course of conduct between EA and WMB. A factfinder will likely have to
determine not only whether there was a conspiracy but, if so, the scope of that conspiracy. But these
are still common questions, with a single answer that pertains to the entire class, to be determined
from common proof. Once the scope of the conspiracy in time or as to other parameters is
determined, the individual question of whether an appraisal falls within that scope will likely be easy
to answer. Moreover, even if plaintiffs' claims were tried on an individual basis, the entirety of EA's
relationship with WMB would still be relevant to whether an agreement existed at a particular point
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in time. Thus, to prove only their own claims, plaintiffs could and might still introduce a large
portion of the evidence that would be needed to try the case as a class action.
The court has not found authority for the proposition that a common question, and its
common answer, must apply identically to all of the class members' claims. To the extent the impact
is not uniform, that may affect a plaintiff's typicality or the adequacy of representation, but those
requirements appear to be met here. The court is persuaded at this stage that plaintiffs would
vigorously attempt to prove a conspiracy across the entire class period, rather than focus on when
their individual appraisals were conducted. In addition, the nature of the question in this case
when exactly did a conspiracy exist and which appraisals did it cover makes it impossible to draw
lines ahead of the ultimate determination, so subclasses are not an available mechanism. If it later
appears that only a subset of the class, potentially not including plaintiffs, can prove an agreement
that covered their appraisals, the court can modify the class certification order at that time. See Fed.
R. Civ. P. 23(c)(1)(C) ("An order that grants or denies class certification may be altered or amended
before final judgment.").
Other cases are in accord with the court's approach. For example, in Mejdrech v. Met-Coil
Systems Corp., 319 F.3d 910 (7th Cir. 2003), the court affirmed certification of a class to determine
liability for a chemical leak that contaminated the soil and groundwater beneath class members'
homes. The court found the common questions were whether the defendant leaked the chemical in
violation of the law and whether the chemical reached the class members' properties. Id. at 911.
The court explained:
The first question is particularly straightforward, but the second only slightly less so.
The class members' homes occupy a contiguous area the boundaries of which are
known precisely. The question is whether this area or some part of it overlaps the
area of contamination. Supposing all or part of it does, the next question is the
particular harm suffered by particular class members whose homes are in the area of
contamination.
Id. (emphasis added). The court thus contemplated that the common question could yield an answer
that resulted in liability to some class members but not to others. Determining the scope of the
agreement in this case is analogous to determining the area of contamination. Supposing an
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C-08-00868 RMW
LJP 7
unlawful agreement is found to exist, EA will be liable to class members whose appraisals are within
the scope of that agreement.
In securities class actions, courts have adopted longer class periods when there is a factual
question as to when a liability-determinative event occurred. Specifically, courts have deferred
ruling on whether or when a purported corrective disclosure completely cured the alleged
misrepresentation and instead allowed the larger class to proceed, subject to later narrowing. See,
e.g., In re NTL, Inc., Sec. Litig., 2006 WL 330113 at *14 (S.D.N.Y. 2006) ("This Court accepts at
this time, subject to later modification, the Class Period as set forth by Lead Plaintiffs, in preference
to the shorter class period suggested by defendants, which would require this Court to adjudicate in
advance of trial when the market had digested fully NTL's corretive disclosure."), adopted by, 2006
WL 568225 (S.D.N.Y. 2006); In re Interpublic Sec. Litig., 2003 WL 22509414 at *5 (S.D.N.Y.
2003) ("Class certification of a broader class period is appropriate when questions of fact remain as
to whether a purportedly curative press release effected a complete cure of the market or was itself
fraudulent."). Similarly here, it seems better to treat the entire class uniformly until and unless it
becomes clear on the merits that only a subset of the class can have valid claims.
2. Methodology to Determine Inflation in the Aggregate
The court previously denied plaintiffs' motion for class certification because "neither party
addressed the question of whether the inflation of appraisal values in the aggregate can be
established by common proof." Dkt. No. 209 at 9. In support of their renewed motion, plaintiffs
submitted three expert reports and outlined a proposal to use statistical sampling in addition to direct
evidence of WMB and EA's practices. First, plaintiffs' experts opine that it is possible for an
appraiser to review a previously made appraisal report and determine whether the original appraisal
was USPAP-compliant and whether it was too high or too low. Defendant does not dispute that this
is possible. Opp. at 14 n.75. Plaintiffs' third expert, Dr. French, proposes to use this retrospective
review process on a statistical sample of the over 300,000 appraisals performed by EA for WMB in
order to obtain information about inflation in the aggregate.
Dr. French's analysis shows that approximately one-third of all of the subject appraisals were
from four Metropolitan Statistical Areas ("MSAs"), New York, Miami, Chicago, and Los Angeles.
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For each of these MSAs, Dr. French proposes to take a random sample of appraisals and determine
the proportion that are inflated and the average percentage by which they are inflated. The results
from the statistical samples provide an unbiased estimate of the proportion and mean percent
inflation for all of the appraisals in each MSA. Dkt. No. 222 (Expert Report of Gary L. French)
15. Dr. French explains that if such information is desired for more than the 33% of appraisals that
were from the top four MSAs, the top ten MSAs can be used to reflect 50% of EA's appraisals, or
one large random sample could be drawn from the universe of all appraisals done by EA. Id. 18.
But if it is necessary only to show that the appraisals were inflated on average to some extent, Dr.
French explains, then it is sufficient to look at the samples from the top four MSAs. If the average
inflation in those areas is positive, then assuming the inflation in all other areas was non-negative,
the nationwide average inflation must also be positive, even if the inflation in other areas was zero.
In addition, the proportion of appraisals that were inflated in the top four MSAs can be extrapolated
to yield a minimum nationwide proportion.
Defendant disputes that Dr. French's methodology can be used to show inflation in the
aggregate. Defendant's expert, Dr. Edelstein, opines that Dr. French makes improper assumptions
about the uniformity of the appraisals in each MSA and fails to account for differences between
specific markets within a MSA, changes in the market and the economy over time, and differences
in the processes employed by WMB and EA in preparing a particular appraisal. To account for
these differences, the appraisals would need to be further stratified, i.e., subdivided, within each
MSA. Dr. Edelstein further opines that Dr. French's methodology does not account for the fact that
appraisers may honestly differ to some extent on the appraised value for a property, so that a lower
appraisal on retrospective review does not necessarily mean inflation in the original appraisal.
In his rebuttal expert report, Dr. French opines that additional stratification is not necessary
to account for differences within the MSAs unless one is interested in the average inflation for each
stratum. Dkt. No. 240 13. Dr. French also explains that his methodology does not make
assumptions about market dynamics and Dr. Edelstein's concerns are nullified because the
retrospective appraisal will view a property at the same point in time as the original appraisal. Id.
17-18. Plaintiffs' expert Dr. Wiley, an experienced appraiser, acknowledges that differences in
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LJP 9
professional opinion can result in small percentage differences in original and retrospective appraisal
values. Dkt. No. 239 (Rebuttal Report of Danny Wiley) at 4-5. Dr. Wiley opines that differences of
less than 5% require a closer look to determine if there has been inflation or simply a difference of
opinion; for non-complex properties, a value difference of 5% to 10% indicates a strong probability
of inflation, and a difference of greater than 10% indicates virtually certain inflation; for complex
properties, a difference of 10% to 15% indicates a strong probability of inflation, and a difference of
greater than 15% indicates virtually certain inflation. Id. at 5. Using those values, Dr. French
proposes taking a "conservative" approach by normalizing the estimated differences in appraised
values by 10% for non-complex properties and 15% for complex properties. Dkt. No. 240 16.
For the purposes of class certification, the court finds plaintiffs have shown that aggregate
inflation is subject to common proof. At this stage, plaintiffs need not set out the exact methodology
they will follow, nor must the court bless it. Rather, "[p]laintiffs need only show that their proposed
method is realistic." In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 353 (N.D. Cal. 2005).
Notably, Dr. Edelstein does not appear to dispute the basic premise that statistical sampling can be
used to ascertain aggregate characteristics about the universe of appraisals done by EA. Some of Dr.
Edelstein's criticisms could be addressed, if necessary, by further stratification and/or evaluation of
samples from additional MSAs, for example. Plaintiffs could also avoid certain criticisms by their
choice of which statistics to present. For example, a minimum proportion of appraisals meeting Dr.
Wiley's threshold for "virtually certain" inflation might be subject to fewer attacks than an average
or minimum average percent inflation. Thus, plaintiffs have demonstrated the possibility of proving
aggregate inflation by common proof. See In re Apple & ATTM Antitrust Litig., 2010 WL 3521965
at *11 (N.D. Cal. 2010) (finding plaintiffs had met their burden at the class certification stage where
both sides agree plaintiffs' expert employed the proper general methodology but disputed the precise
scope of his analysis).
The court need not decide at this stage what degree of evidence plaintiffs must present with
regard to aggregate inflation. It seems clear that plaintiffs need not determine with absolute
precision the proportion of inflated appraisals or the average percent inflation. By way of analogy, a
plaintiff trying to prove that kickbacks were paid over time would not necessarily need to prove
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LJP 10
every single payment nor the exact total amount. As a general matter, plaintiffs must prove a
sufficient degree of inflation whether expressed as a minimum or an estimate with an error range
that allows a factfinder to conclude that WMB received a thing of value and that, in combination
with plaintiffs' other evidence, allows the fact finder to conclude that this thing of value was given
pursuant to an agreement that WMB would refer appraisal business to EA. Plaintiffs' proposed
methodology has the potential to yield that sort of proof.
Even if plaintiffs' methodology has flaws, it appears that inflation in the aggregate must be
demonstrated by common proof or not at all, so the class certification concerns about individualized
inquiry are not implicated. Plaintiffs' allegation of inflation in the aggregate is analogous to the
allegation in Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010), that the defendant paid $2
million to a title company in exchange for a minority share of the company and an agreement that
the title company refer all future title insurance business to the defendant. In a nonprecedential
decision, the Ninth Circuit reversed the denial of class certification, finding that "there is a single,
overwhelming common question of fact: whether the arrangement between Tower City and First
American violated [RESPA]." Edwards v. First Am. Corp., 385 Fed. Appx. 629, 631 (9th Cir.
2010). Although the alleged benefit received by WMB is more distributed and less direct than the
$2 million payment in Edwards, that does not change the fact that proving this benefit is part of
establishing a RESPA violation that taints every appraisal that was referred as part of the agreement.
Although the need to analyze so many individual appraisals feels like the typical situation in
which a need for individualized inquiries defeats class certification, that is not the case. Here, the
analysis of each appraisal affects the class as a whole. Each appraisal plaintiffs can demonstrate was
inflated will bolster every class member's claim that WMB received a thing of value like piling
grains of sand on the scale. Once plaintiffs demonstrate a factually sufficient amount of inflation,
they will have established this element on behalf of the class, assuming they also tie WMB's benefit
to a comprehensive agreement with EA. Thus, while the "thing of value" alleged here may be, and
almost certainly is, much more difficult to prove than a monetary payment or overcharge of
consumers, it is still an issue subject to common proof. The court is not enthusiastic about the
prospect of plaintiffs introducing evidence about hundreds or thousands of appraisals, each
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potentially subject to conflicting expert opinions and fact-specific defenses. However, the volume
and complexity of evidence required appears to be a product of plaintiffs' claim being difficult to
prove, not a problem introduced by proceeding as a class action. Thus, the court finds that common
questions, subject to common proof, predominate.
B. Superiority
Rule 23(b)(3) lists four non-exclusive factors pertinent to whether a class action is superior
to other methods of adjudication, including any other litigation already filed, the desirability of
concentrating litigation in this forum, and manageability. Plaintiffs argue that the Rule 23(b)(3)
factors favor certification, emphasizing that they seek to vindicate relatively small claims that would
be impracticable to litigate individually and that such individual lawsuits would be a greater burden
on the judicial system and far less manageable than a class action. Defendant argues that the need
for individualized inquiry makes a class action unmanageable, that RESPA provides other
enforcement mechanisms, and that litigation should not be concentrated in this district.
It appears that certifying a class in this case would confer the usual benefits of a class action:
allowing issues to be resolved once and applied to the entire class, and preventing a multiplicity of
similar lawsuits. As discussed above, although the necessary evidence may make this case difficult
to manage, it not a problem of individualized inquiries and thus certifying a class does not
particularly make management more difficult. Indeed, the benefits of a class action seem greater
where the common issues are complex and require extensive evidence. Similarly, defendant's
argument against concentrating litigation in this forum is that witnesses are scattered across the
country, but a class action would efficiently resolve a large number of claims without the need to
present the same evidence or witnesses in multiple actions. Notably, this is not a case that requires
application of multiple states' laws; at issue is a single, federal cause of action. In addition,
defendant has not shown that the testimony of many geographically distributed appraisers will be
required.
Finally, the court does not find that RESPA's provision of attorney's fees, treble damages,
and government enforcement mechanisms renders a class action inferior in this case. Courts outside
this circuit are split regarding whether RESPA's fee-shifting and treble recovery provisions render
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2
The court left open in its July 2, 2010 Order the question of whether Spears is an adequate lead
plaintiff in view of his limited knowledge about the case. The court concludes on balance that he is
an adequate lead plaintiff. This determination may be re-visited should Scholl cease acting as a lead
plaintiff for some reason and if Spears does not maintain some basic understanding of the case.
C-08-00868 RMW
LJP 12
RESPA claims inappropriate for class actions. Compare Minter v. Wells Fargo Bank, N.A., 274
F.R.D. 525, 550 (D. Md. 2011) (certifying class) with Toldy v. Fifth Third Mtg. Co., 2011 WL
4634154 at *2-3 (N.D. Ohio 2011) ("The Courts in this Circuit have uniformly found that the
RESPA statute's financial provisions bar a finding of superiority under Rule 23(b)(3)."). Comparing
the barriers to individual litigation presented in a complex case such as this with the incentives
provided by RESPA, the court finds that a class action is superior to individual suits. See White v.
E-Loan, Inc., 2006 WL 2411420 at *9 (N.D. Cal. 2006) (finding class action superior
notwithstanding defendant's argument that the FCRA provides for individual statutory damages and
attorney's fees); Johnson v. General Mills, Inc., 275 F.R.D. 282, 289 (C.D. Cal. 2011) (finding class
action superior, noting "the great expense that would fall on individual class members if each class
member had to provide scientific evidence and expert testimony in separate cases"). In addition,
although the New York attorney general has brought an action based on the same conducted alleged
here, that action appears limited to New York residents. The hypothetical possibility of further
government enforcement should not displace a class action brought by private plaintiffs. See also
White v. E-Loan, Inc., 2006 WL 2411420 at *9 (finding from the FCRA's authorization of statutory
damages and attorney's fees that "FTC enforcement is not designed to be the sole mechanism for
protecting consumers' rights created by the FCRA"). Thus, the court finds that a class action is
superior to other available methods for adjudicating this controversy and a class should be certified.
III. ORDER
For the foregoing reasons, the court:
(1) grants certification of a class defined as:
All consumers in California and throughout the United States who, on or after June 1,
2006, received home loans from Washington Mutual Bank, FA in connection with
appraisals that were obtained through eAppraiseIT.
(2) finds that plaintiffs Felton Spears
2
and Sidney Scholl will fairly and adequately represent the
class and hereby appoints them as representatives of the class.
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(3) appoints Stember Feinstein Doyle Payne & Cordes, LLC as interim lead counsel on behalf of the
class pending a proposal from plaintiffs as to who should act as lead counsel.
The Braun Law Group, P.C.; the Law Offices of Janet Lindner Spielberg; Stember Feinstein
Doyle Payne & Cordes, LLC; and Spiro Moore LLP (formerly Spiro Moss LLP) all have sought
appointment as co-counsel for the class. All have the requisite qualifications and experience to
serve as lead counsel. The briefing filed, however, does not address which, among the four firms,
should be selected lead counsel, or, if more than one firm is appointed, how tasks are to be
efficiently divided. The court and defendant also need to know who will act as the contact for the
class and can be relied upon as having binding authority. The court generally limits the appointment
of lead counsel to no more than two firms. Appointment of more than two firms seems inconsistent
with the reasons for having lead counsel.
The parties shall file by May 11, 2012 a joint proposed form of class notice and joint plan for
dissemination of that notice. If they cannot agree on particular aspects of the notice or the plan for
dissemination, they are to include their respective proposals.
A case management conference is hereby set for May 25, 2012 at 10:30 a.m. or a date and
time otherwise agreed to by all parties and cleared with the court's courtroom deputy, Jackie Garcia,
who can be reached at 408/535-5375. The parties are to file a joint case management conference
statement at least one week before the conference and include in it an efficient plan for completing
discovery. The court anticipates that the parties can formulate a plan that involves far less discovery
than that discussed by defendant in its opposition to plaintiffs' renewed class certification motion.
DATED: April 25, 2012
RONALD M. WHYTE
United States District Judge
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ORDER GRANTING REQUEST TO SEALNo. CV 08-00868 RMW
MEC
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E-FILED on 12/22/2010
SAN JOSE DIVISION
FELTON A. SPEARS, JR. and SIDNEY
SCHOLL, on behalf of themselves an all others
similarly situated,
Plaintiffs,
v.
FIRST AMERICAN EAPPRAISEIT,
Defendant.
No. CV 08-00868 RMW
ORDER GRANTING REQUEST TO SEAL
[Re Docket No. 223]
Plaintiffs request leave to file the expert report of Francois K. Gregoire in support of
plaintiffs' renewed motion for class certification under seal. The request is granted.
DATED: 12/22/2010
RONALD M. WHYTE
Spears et al v. Washington Mutual, Inc. et al Doc. 226
Dockets.Justia.com
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ORDER DENYING MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICENo. C-08-00868 RMW
CCL
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E-FILED on 7/2/10
SAN JOSE DIVISION
FELTON A. SPEARS, JR., SIDNEY
SCHOLL, JUAN BENCOSME, and CARMEN
BENCOSME, on behalf of themselves and all
Plaintiffs,
v.
FIRST AMERICAN EAPPRAISEIT (a/k/a
eAprraiseIT, LLC), a Delaware limited liability
company; and LENDER'S SERVICE, INC.
(a/k/a LSI Appraisal, LLC), a Delaware limited
liability company,
Defendants.
No. C-08-00868 RMW
ORDER DENYING MOTION FOR CLASS
CERTIFICATION WITHOUT PREJUDICE
[Re Docket Nos. 189, 197]
Plaintiffs move for class certification. For the reasons set forth below, the court denies the
motion without prejudice.
I. BACKGROUND
Home purchases in the United States have traditionally been financed through a third-party
lender who retains a security interest in the property until the loan is repaid. Second Amended
Complaint ("SAC") 2. In order to ensure that the secured lender will recoup the value of the loan
if the borrower defaults, the lender generally requires that the property be professionally appraised.
Id. In recent years, however, there has been a paradigm shift away from banks holding the mortgage
loans until repaid to one where they sell the loans to financial institutions. Id. 23. This paradigm
Spears et al v. Washington Mutual, Inc. et al Doc. 209
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CCL 2
shift created an incentive for banks to seek higher appraisals for the property underlying their
mortgage loans. Id. 24.
Plaintiffs allege that, beginning in June of 2006, Washington Mutual Bank ("WMB")
conspired with First American eAppraiseIT ("EA") and Lender's Service, Inc. ("LSI") to inflate the
appraised value of property underlying their mortgage loans so that WMB could sell the aggregated
security interests in these properties at inflated prices. Id. 6. Around June 2006, WMB retained
EA and LSI to administer its appraisal program. Id. 36. EA and LSI have since performed almost
all of WMB's appraisals, and WMB's borrowers have become EA and LSI's largest source of
business. Id. Plaintiffs allege that defendants engaged in the following conduct as part of the
conspiracy to inflate appraisals: (1) EA and LSI complied with WMB's demand that all of its
appraisals be performed by appraisers on its "Proven Appraiser List," which contained appraisers
selected by WMB's loan origination staff; (2) WMB maintained the contractual right to challenge
appraisals by requesting a reconsideration of value ("ROV") and used ROV requests to get EA and
LSI to increase appraisal values; (3) WMB requested that EA and LSI hire former WMB employees
as appraisal business managers, who had the authority to override the values determined by third-
party appraisers; and (4) EA and LSI altered appraisal reports to reflect higher property values,
remove negative references, and make other changes so that the final appraisal reports complied
with WMB's wishes. Id. 6, 37-40, 43-45.
On February 8, 2008, plaintiffs filed suit against WMB, EA, and LSI, alleging breach of
contract, unjust enrichment, and violations of the Real Estate Settlement Procedures Act ("RESPA"),
the Unfair Competition Law, and the Consumers Legal Remedies Act. As the case currently stands,
the only claim remaining is plaintiffs Felton A. Spears and Sidney Scholl's claim against EA for
violation of Section 8(a) of RESPA, 12 U.S.C. 2607(a). The court dismissed all other claims
against EA in orders issued on March 9, 2009 and August 30, 2009. In its August 30, 2009 order,
the court also denied the motion to permit Juan and Carmen Bencosme to intervene and dismissed
LSI from this case. Spears and Scholl now move for class certification.
II. ANALYSIS
Class certification is a matter within the discretion of the district court, Zinser v. Accufix
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Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir.
2001), although the determination must be supported by sufficient factual findings, Local Joint
Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1161 (9th
Cir. 2001), and a proper understanding of the applicable law, Hawkins v. Comparet-Cassani, 251
F.3d 1230, 1237 (9th Cir. 2001).
A. Class Definition
"As a threshold matter, and apart from the explicit requirements of Rule 23(a), the party
seeking class certification must demonstrate that an identifiable and ascertainable class exists."
Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D.Cal. 2009). "A class definition should be precise,
objective, and presently ascertainable." Id. (citing O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311,
319 (C.D. Cal.1998)). Plaintiffs offer the following proposed class definition: "All consumers in
California and throughout the United States who, between June 1, 2006 and September 25, 2008,
received home loans from Washington Mutual Bank, FA in connection with appraisals that were
obtained through First American eAppraiseIT." This class definition is based on a set of objective
criteria and is sufficiently ascertainable.
B. Rule 23(a) Prerequisites
Federal Rule of Civil Procedure 23(a) lists four conjunctive criteria that must be met to certify
a class action: numerosity, commonality of issues, typicality of the representative plaintiffs' claims, and
adequacy of representation. Fed. R. Civ. P. 23(a). A class may only be certified if the court is
"satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel.
Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). The plaintiff bears the burden of demonstrating the
requirements of Rule 23(a) are satisfied. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.
1992).
In this case, there is no dispute regarding the satisfaction of the numerosity and commonality
requirements, as the proposed class consists of approximately 260,000 consumers, Mot. Class Cert. Ex.
R at 4, and there are many common questions of law and fact. The parties, however, dispute whether
the typicality and adequacy requirements have been met.
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1. Typicality
Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the
claims or defenses of the class." Fed. R. Civ. Proc. 23(a)(3). The typicality requirement serves to
"assure that the interest of the named representative aligns with the interests of the class." Hanon, 976
F.2d at 508. "Typicality refers to the nature of the claim or defense of the class representative, and not
to the specific facts from which it arose or the relief sought." Id. The test for typicality is "whether
other members have the same or similar injury, whether the action is based on conduct which is not
unique to the named plaintiffs, and whether other class members have been injured by the same course
of conduct." Id. "Under the rule's permissive standards, representative claims are 'typical' if they are
reasonably co-extensive with those of absent class members; they need not be substantially identical."
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).
EA argues that typicality has not been met because both named plaintiffs' claims are based on
appraisals conducted prior to the creation of the Proven Appraiser List. The bulk of the allegations in
the SAC focuses on use of the Proven Appraiser List, suggesting that this particular conduct is central
to plaintiffs' case. See SAC 37, 41-56, 91-92. However, plaintiffs have alleged a conspiracy that
includes a myriad of conduct intended to inflate appraisals beyond the selection of appraisers from
WMB's Proven Appraiser List, including ROV requests, use of former WMB employees as appraisal
business managers, and altering of appraisal reports. SAC 6, 38-40. Moreover, in determining
whether typicality has been satisfied, courts are to consider the nature of the claims asserted by named
representatives, not the specific facts from which their claims arose. Hanon, 976 F.2d at 508. As
alleged in the SAC, Scholl and Spears have suffered the same injury as the other members of the class
receipt of an appraisal tainted by collusion between WMB and EA. This action is not based on
conduct that is unique to the named plaintiffs, and other class members are alleged to have been injured
by the same course of conduct the conspiracy to inflate appraisals in exchange for appraisal business.
Thus, the nature of the claims asserted by the named representatives are typical of the claims of the
class.
EA also contends that the named plaintiffs' claims are not typical because Scholl cannot show
that her appraisal was inflated, and WMB would not have benefited from inflating Spears' appraisal.
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However, as discussed below, the class representatives need not prove that their individual appraisals
were inflated, nor must they show that WMB would have benefited from inflating their individual
appraisals. The court therefore finds that the typicality requirement has been satisfied.
2. Adequacy
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the
interests of the class." Fed. R. Civ. Proc. 23(a)(4). The adequacy requirement ensures that absent class
members are afforded adequate representation before being bound by a judgment. Hanlon, 150 F.3d
at 1020. In determining adequacy, courts consider: "(1) do the named plaintiffs and their counsel have
any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel
prosecute the action vigorously on behalf of the class?" Id. (citing Lerwill v. Inflight Motion Pictures,
Inc., 582 F.2d 507, 512 (9th Cir. 1978)).
EA contends that Scholl is an inadequate class representative because class counsel represents
her in a separate lawsuit filed against WMB. However, EA has failed to show how this separate
representation in a separate case creates a conflict of interest between Scholl and other class members.
Moreover, at the hearing on July 2, 2010, plaintiffs' counsel represented to the court that this separate
lawsuit has been dismissed. The court thus finds no reason to believe that Scholl has a conflict of
interest with other class members or that she would not prosecute the action vigorously on behalf of the
class.
EA argues that Spears is an inadequate class representative because he has a criminal record and
lacks sufficient understanding of the procedural history of this case. In light of the fact that Spears'
arrests and convictions are all at least thirty years old, Spears Dep. 16:21-23, the court finds that they
do not raise serious concerns about his credibility and thus do not prevent him from adequately
representing the class. See White v. E-Loan, Inc., 2006 WL 2411420, at *3 (N.D. Cal. Aug. 18, 2006)
(finding that convictions from almost thirty years ago did not prevent a class representative from
adequately representing the class). As for Spears' lack of familiarity with the proceedings in this case,
this presents a close call. Although a class representative should have some basic understanding of the
case, "a knowledge or understanding of all the intricacies of the litigation is not required." Monroe v.
City of Charlottesville, 579 F.3d 380, 385 (4th Cir. 2009). On one hand, Spears understands the basic
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theory of the case, has been in regular contact with class counsel, and has reviewed each version of the
complaint. Spears Dep. 29:15-16, 54:7-21, 69:10-21, 73:11-24, 76:2-11, 77:6-8. On the other hand,
he is not aware of any of the court's rulings, does not know which claims have been dismissed, and is
not aware of the fact that his attorneys had moved to have this case transferred to a different court. Id.
71:14-16, 72:21-73:8, 74:25-75:24, 76:24-77:4, 78:12-16. In this case, the court need not decide
whether Spears' limited knowledge regarding the case would prevent him from prosecuting the action
vigorously on behalf of the class because Rule 23 only requires that one class representative be found
adequate. Rodriguez v. West Publi'g Corp., 563 F.3d 948, 961 (9th Cir. 2009). As discussed above, the
court finds that Scholl is an adequate class representative.
EA contends that class counsel are inadequate because: (1) they represent Scholl in a separate
action; (2) they have failed to make a reasonable pre-filing investigation of the suitability of proposed
class representatives; and (3) they simply repackaged allegations in a New York Attorney General's
complaint against EA. First, EA has failed to show how class counsel's representation of Scholl in a
separate action against a different defendant creates a potential conflict of interest such that class
counsel would not prosecute this action vigorously for the class, and it appears that this separate action
has already been dismissed. Second, since Rule 23's typicality and adequacy requirements for class
representatives have been satisfied, there is no evidence suggesting that class counsel failed to make a
reasonable pre-filing investigation with respect to the suitability of class representatives. Finally, use
of the New York Attorney General's complaint, by itself, does not suggest inadequacy. EA appears to
be arguing that class counsel failed to conduct a reasonable inquiry into the claims. However, class
counsel has represented to the court that it has "performed a thorough investigation prior to filing this
case." Reply Class Cert. at 15. The court therefore finds no reason to believe that class counsel would
not prosecute the action vigorously on behalf of the class. Indeed, class counsel has vigorously
prosecuted this action up to this point. Accordingly, the court finds that the adequacy requirement has
been satisfied, both as to the class representatives and as to class counsel.
C. Rule 23(b)(3)
In addition to fulfilling the four prerequisites of Rule 23(a), a class action must also meet the
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disjunctive requirements of Rule 23(b) by satisfying the criteria set forth in at least one of the three types
of class actions. Fed. R. Civ. P. 23. Plaintiff alleges that this class action may be maintained as a Rule
23(b)(3) class. Rule 23(b)(3) requires that "questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P.
23(b)(3).
The predominance inquiry "tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation." Hanlon, 150 F.3d at 1022 (quoting Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 623 (1997)). The mere existence of common issues of fact or law is insufficient, as such
commonality is already required by Rule 23(a)(2). Predominance is met where common questions,
which can be resolved for all members on a class-wide basis, are such a significant aspect of the case
that they present "a clear justification for handling the dispute on a representative rather than on an
individual basis." Id.
1. EA's Objections
According to EA, common questions do not predominate because individualized inquiry is
necessary to determine: (1) whether individual appraisals were inflated, (2) why individual appraisals
were referred to EA, and (3) whether RESPA's safe harbor applies. The court addresses each of these
arguments below.
First, EA contends that, in order to establish liability as to each class member, plaintiffs must
show that each individual appraisal was inflated and therefore a "thing of value." In response, plaintiffs
argue that they need only demonstrate the existence of an agreement to exchange appraisal business for
inflated appraisals without any proof that the agreement was actually carried out. The court disagrees
with both parties. Plaintiffs must prove that WMB actually received a "thing of value" in exchange for
referrals. 12 U.S.C. 2607(a). As alleged, the "thing of value" is inflated appraisals. However,
plaintiffs need not establish inflated appraisal values for each individual appraisal in order to establish
liability. If plaintiffs are able to show that WMB received appraisal values that were inflated in the
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However, as discussed below, plaintiffs have failed to demonstrate that they can prove that WMB
received appraisal values that were inflated in the aggregate using class-wide evidence.
CCL 8
aggregate in exchange for referring EA appraisal business, this would be sufficient to show that a "thing
of value" was received for the referrals.
1

Second, EA argues that individual inquiry into the circumstances around each referral is
necessary since plaintiffs must show that each individual appraisal was referred to EA in exchange for
a thing of value in order to establish standing for each class member. As discussed above, plaintiffs
need not prove that each individual appraisal was referred in exchange for inflating its appraisal value.
To have standing to bring a RESPA claim, each class member must have been charged for a "settlement
service involved in the [RESPA] violation." 12 U.S.C. 2607(d)(2). In this case, the alleged RESPA
violation is the exchange of appraisal referrals for inflated appraisals. Hence, an appraisal is "involved"
in the RESPA violation if either: (1) it was part of a volume of appraisal business that was referred in
exchange for inflated appraisals, or (2) it was inflated to provide a "thing of value" in exchange for a
volume of appraisal business. Establishing standing by the latter method would likely require a great
deal of individualized proof. However, plaintiffs may be able to establish standing by the former
method using common evidence.
Plaintiffs allege that all referrals that EA received from WMB were part of a single agreement
between WMB and EA, an agreement that violated RESPA's anti-kickback provision. SAC 90. If this
allegation is true, then each class member's appraisal would be involved in the RESPA violation, as a
part of the volume of business referred to EA by WMB in exchange for inflated appraisals. Whether
such an agreement between WMB and EA existed, the scope of any such agreement, and whether there
were changes in the relationship between WMB and EA over time present common questions of fact.
Third, EA contends that individual inquiry is necessary to determine whether there was an
unlawful kickback or a proper payment for services that would fall within RESPA's safe harbor.
RESPA's safe harbor provision precludes liability for "the payment to any person of a bona fide salary
or compensation or other payment for goods or facilities actually furnished or for services actually
performed." 12 U.S.C. 2607(c)(2). However, as this court has already ruled in previous orders, the
exchange of appraisal business for inflated appraisals does not constitute payment or compensation for
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Because plaintiffs have failed carry their burden of establishing predominance, the court need not
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CCL 9
services actually performed. Spears v. Washington Mutual, Inc., No. C-08-00868-RMW, 2009 U.S.
Dist. LEXIS 85251, at *11-12 (N.D. Cal. Aug. 30, 2009); Spears v. Washington Mutual, Inc., No. C-08-
00868-RMW, 2009 U.S. Dist. LEXIS 21646, at *11 (N.D. Cal. Mar. 9, 2009). Thus, if plaintiffs are
able to show that WMB referred appraisal business to EA in exchange for inflated appraisals, the safe
harbor does not apply.
2. Proof of Inflated Appraisals
Plaintiffs allege that EA violated Section 8(a) of RESPA by conspiring with WMB to inflate
appraisals in exchange for appraisal business. Section 8(a) of RESPA provides that "[n]o person shall
give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or
understanding, oral or otherwise, that business incident to or part of a real estate settlement service
involving a federally related mortgage loan shall be referred to any person." 12 U.S.C. 2607(a). For
plaintiffs to prevail, they must prove that, pursuant to an agreement, EA gave and WMB accepted
inflated appraisals in exchange for referring appraisal business to EA. Thus, the central issue in this
case is whether this alleged agreement existed and was carried out. Accordingly, common questions
of law and fact predominate if and only if plaintiffs are able establish the existence and carrying out of
the alleged agreement with common proof.
As discussed above, plaintiffs are not required to prove that each or any particular member of
the class received inflated appraisals. However, there must be some showing that WMB obtain a "thing
of value" as a result of the agreement with EA. The fact that EA made some changes in the way that
the appraisal function was accomplished (such as selecting appraisers from a Proven Appraiser List)
does not establish that WMB received a "thing of value," without some evidence that these changes
actually resulted in inflated appraisals. Plaintiffs have not shown how they can establish that WMB
received inflated appraisals using common proof. For this reason, they have failed to carry their burden
of establishing predominance.
2
Because neither party addressed the question of whether the inflation
of appraisal values in the aggregate can be established by common proof, denial of the motion for class
certification is without prejudice.
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III. ORDER
For the foregoing reasons, the court denies the motion for class certification without
prejudice.
DATED: 7/2/10
RONALD M. WHYTE
SAN JOSE DIVISION
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
18 vs.
19 FIRST AMERICAN EAPPRAISEIT,
(alk/a eAppraiseIT, LLC),
20 a Delaware limited liability company,
21 Defendant.
CLASS ACTION
July 2, 2010
9:00 a.m.
Courtroom 6, 4th Floor
Ira Spiro (Bar No. 67641)
Mark Moore (BarNo. 180473)
SPIRO MOSS, LLP
11377 West Olympic Blvd., Fifth Floor
Tel: (310) 235-2468
Fax: (310) 235-2456
E-mail: ira@spiromoss.com
E-Mail: Mark@spiromoss.com
Joseph N. Kravec, Jr. (admitted pro hac vice)
STEMBER FEINSTEIN DOYLE
PAYNE & CORDES, LLC
429 Forbes Avenue, 17th Floor
Tel: (412) 281-8400
Fax: (412) 281-1007
DATE:
TIME:
CTRM:
CASE NO. 5:08-CV-00868 (RMW)
PLAINTIFFS' NOTICE OF MOTION,
MOTION FOR CLASS CERTIFICATION
AND MEMORANDUM IN SUPPORT
Michael D. Braun (BarNo. 167416)
BRAUN LAW GROUP, P.C.
10680W. Pico Blvd., Suite 280
Phone: (310) 836-6000
Fax: (310) 836-60106
Counselfor Plaintiffs
Janet Lindner Spielberg (Bar No. 221926)
LAW OFFICE OF JANET LINDNER
SPIELBERG
12400 Wilshire Blvd., Suite 400
Phone: (310) 392-8801
Fax: (310) 278-5938
Plaintiffs,
SCHOLL, on behalf ofthemselves and all
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Case No.: 5:08-CV-00868 (RMW)
Plaintiffs' Notice of Motion, Motion for Class
Certification and Memorandum in Support
Case5:08-cv-00868-RMW Document197 Filed05/25/10 Page1 of 33
III. STANDARDS FOR CLASS CERTIFICATION 9
CERTIFICATION OF THE PROPOSED CLASS IS APPROPRIATE BECAUSE THE
CLASS MEETS THE REQUIREMENTS OF RULE 23(A) 10
INTRODUCTION 1
COMMON EVIDENCE OF RECORD TO DATE .4
THE REQUIREMENTS OF RULE 23(B)(3) ARE SATISFIED 16
A. Rule 23(b)(3) - Common Questions of Law and Fact Predominate 17
TABLE OF CONTENTS
Formation and Operation of a Conspiracy 19
Wrongful Act Committed In Furtherance Of The Conspiracy 20
Damages Resulting From The Wrongful Act.. 20
Agreement or Understanding ~ 22
EA Colluded with WMB in Allowing WMB's Loan Origination Staff to Have
Direct Contact with Appraisers 6
EA Knew Allowing WMB to Select Appraisers Was Wrongful And Refused To
Warrant Such Appraisals 6
EA Knew WMB Was Utilizing "Reconsideration of Values" When WMB Was
Dissatisfied With Appraisal Values 7
EA Agreed to Hire Former WMB Employees to Manage Appraisals 7
EA Knew Its Agreement With and Conduct Regarding WMB Was IllegaL 8
EA At The Direction Of WMB Illegally Unlocked Certified Appraisals
Facilitating Unauthorized Value Changes 9
EA Agreed To The Use of Appraisers Selected by WMB To "Bring In The
Value" 5
Conspiracy Between EA and WMB 4
2.
Rule 23(a)(I) - Numerosity 10
Rule 23(a)(2) - Commonality 11
Rule 23(a)(3) - Typicality 13
Rule 23(a)(4) - Adequacy of Representation 14
1.
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7.
3.
4.
5.
6.
A.
A.
B.
C.
D.
1
2
3 I.
4 II.
5
6
7
8
9
10
11
12
13
14
15
16
IV.
17
18
19
20
21
22 v.
23
24
25
26
27
28
CASE NO.: 5:08-CV-00868 (RMW)
TABLE OF CONTENTS
1
2
3
4
5
6
7
8
9
10
VI.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS (Cont'd)
Page
5. A Thing Of Value 22
6. Real Estate Settlement Service Involving A Federally Related Mortgage Loan .23
B. Rule 23(b)(3) - A Class Action is Superior to Individual Actions 23
1. Rule 23(b)(3)(A) 23
2. Rule 23(b)(3)(B) 24
3. Rule 23(b)(3)(C) 24
4. Rule 23(b)(3)(D) 24
CONCLUSION 25
Case No.: 5:08-CV-00868 (RMW)
11
1
2
3
4
CASES
TABLE OF AUTHORITIES
Alston v. Countrywide Financial Corp.,
5 585 F.3d 753 (3
rd
Cir. 2009) 3,20,21
6 Amchem,
521 U.S. at 623 17
7
Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,
8 7 Cal. 4th 503, 28 Cal. Rptr. 2d 475, P.2d 454 (1994) 20
9 Armour v. NetworkAssocs., Inc.,
171 F. Supp. 2d 1044 (N.D. Cal. 2001) 15
10
Armstrong v. Davis,
11 275 F.3d 849 (9th Cir. 2001) 11, 13
12 Benway v. Res. Real Estate Servs., LLC,
239 F.R.D. 419 (D. Md. 2006) 22
13
Blackie v. Barrack,
14 524 F.2d 891 (9th Cir. 1975) 9, 11, 17, 18, 19
15 Boynton v. Headwaters, Inc.,
2008 U.S. Dist. LEXIS 76008 (W.D. Tenn. 2008) .4, 19
16
17
18
19
20
21
22
Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp.,
917 F.2d 1171 (9th Cir. 1990) 13
Carnegie v. Household Int 'I, Inc.,
376 F.3d 656 (7th Cir. 2004) 23,25
Capell,
2007 U.S. Dist. LEXIS 82570,2007 WL 3342389, at *5 20
Carter v. Welles-Bowen Realty, Inc.,
553 F.3d 979 (6
th
Cir. 2009) 3,20,21,22
Castaneda v. Burger King Corp.,
23 2009 WL 3151168 at * 16 (N.D. Ca1.2009) 14
24 Dukes v. Wal-Mart Stores, Inc., -- F.3d --,2010
WL 1644259 (9th Cir. Apr. 26, 2010) 10, 11, 12
25
26
27
28
Dukes v. Wal-Mart Stores, Inc.,
222 F.R.D. 137 (N.D.Ca12004) 15
East Texas MotorFreight System, Inc. v. Rodriguez,
431 U.S. 395 (1977) ; 14
CASE NO.: 5:08-CV-00868 (RMW)
111
TABLE OF AUTHORITIES (cf'd)
1 In re THQ, Inc. Sees. Litig.,
Case No. CVOO-1783AHM(Ex), 2002 U.S. Dist. LEXIS 7753
2 (C.D. Cal. Mar. 22, 2002) 11
3 In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig.,
122 F.R.D. 251 (C.D. Cal. 1988) 17,21
4
In re Visa Checks/MasterMoney Antitrust Litig.,
5 280 F.3d 124 (2nd Cir. 2001) 15, 17,25
6 In re Wells Fargo Home Mortg. Overtime Pay Litigation,
527 F. Supp. 2d 1053, 1065 (N.D. Cal. 2007) 16
7
In re Worldcom Inc. Sec. Litig.,
8 219 F.R.D. 267 (S.D.N.Y. 2003) 23
9 Jerry Enterprises ofGloucester County, Inc. v. Allied Beverage Group, L.L.c.,
178 F.R.D. 437 (D. N.J. 1998) 3,19
10
Kahrer v. Ameriquest Mortg. Co.,
11 418 F. Supp. 2d 748 (W.D. Pa. 2006) 20
12 Lerwill v. Injlight Motion Pictures, Inc.,
582 F.2d 507 (9th Cir. 1978) 14
13
14
15
16
17
18
19
20
21
22
Local Joint Executive Bd. ofCulinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,
244 F.3d 1152 (9th Cir. 2001) 16
Mazza v. Am. Honda Motor Co.,
254 F.R.D. 610 (C.D. Cal. 2008) 10, 11, 13
Moore v. Hughes Helicopters, Inc.,
708 F.2d 475,480 (9th Cir. 1983); 10
Olson v. Tesoro Refining and Mktg,
2007 WL 2703053, *6 (W.D. Wash. 2007) 17
Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris,
188 F.R.D. 365 (D. Or. 1998) 4, 19
Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 105 S. Ct. 2965,86 L. Ed. 2d 628 (1985) 23
Plascencia v. Lending 1st Mortg.,
23 259 F.R.D. 437 (N.D. Cal. 2009) 17
24 Riordan v. Smith Barney,
113 F.R.D. 60 (N.D. Ill. 1986) 10
25
26
Robidoux v. Celani,
987 F.2d 931 (2nd Cir. 1993) 10
27 Robinson v. Fountainhead Title Group Corp.,
252 F.R.D. 275 (D. Md. 2008) 4, 19
28
CASE NO.: CV 09-0904 VBF (FMOx)
v
TABLE OF AUTHORITIES (ct'd)
1 Rodriguez v. Hayes,
591 F.3d 1105 (9th Cir. 2010) 14
2
3
4
5
Schwartz v. Harp,
108 F.R.D. 279 (C.D. Cal. 1985) 14
Scrap Metal Antitrust Litig.,
527 F.3d 517 (6
th
Cir. 2008) 3
Staton v. Boeing,
6 327 F.3d938 (9th Cir. 2003) 14
7 Swanson v. American Consumer Industries,
415 F.2d 1326 (7th Cir. 1969) 10
8
9
10
11
12
13
14
Thomas v. Baca,
231 F.R.D. 397 (C.D. Cal. 2005) 13
United Steel Workers v. ConocoPhillips Co., -- F.3d --, 2010
WL 22701, *5 (9th Cir. Jan. 6, 2010) 12
Valentino v. Carter- Wallace, Inc.,
97 F.3d 1227 (9th Cir. 1996) 17
Walters v. Reno,
145 F.3d 1032 (9th Cir.1998) 14
Wasco Prods. v. Southwall Techs., Inc.,
15 2006 U.S. App. LEXIS 816 (9th Cir. Cal. 2006) 18
16 West v. Circle K Stores, Inc.,
No. Civ. S-04-0438WBS GGH, 2006 U.S. Dist. LEXIS 42074
17 (E.D. Cal. June 12, 2006) 24
18 Westways World Travel, Inc. v. AMR Corp.,
218 F.R.D. 223 (C.D. Cal. 2003) 10
19
Zinser v. Accufix Research Inst., Inc.,
20 253 F.3d 1180 (9th Cir. 2001) 9
21
22 STATUTES
23 12 U.S.C. 2602(3) 22
24 12 U.S.C. 2607(a) passim
25 12 U.S.C. 2607(d)(2) 3,21
26 7AA Wright & Miller 1781 4, 19
27 RESPA Section 8(a) 4,19,21,22
28 RESPA section 8(d)(2) 3,21
VI
1 OTHER AUTHORITIES
2 4 Herbert B. Newberg & Alba Conte,
Newberg on Class Actions 18.25 at 18-81 (3d ed. 1992) 3, 19
3
Static Random Access Memory Antitrust Litig.,
4 2009 U.S. Dist. LEXIS 110407,59-60 (N.D. Cal. 2009) .4
5 TFT-LCD (Flat Panel) Antitrust Litigation, -- F.R.D. --,2010
WL 1286478, *24 (N.D. Ca., March 28,201 0) 3
6
7 RULES
8 Federal Rule of Civil Procedure 23 9,10,13
9 Fed. R. Civ. P. Rule 23(a) 1,4,10
10 Fed. R. Civ. P. 23(a)(1) 10,11
11 Fed. R. Civ. P. 23(a)(2) 11,13
12 Fed. R. Civ. P. 23(a)(3) 13
13 Fed. R. Civ. P. 23(a)(4) 14, 16
14 Fed. R.. Civ. P. 23(b) 9
15 Fed. R. Civ. P. 23(b)(3) .4,17,18,19,22,23
16 Fed. R. Civ. P. 23(b)(3)(A) 23
17 Fed. R. Civ. P. 23(b)(3)(B) 24
18 Fed. R. Civ. P. 23(b)(3)(C) 24
19 Fed. R. Civ. P. 23(b)(3)(D) 24,25
20 Fed.R. Civ. P. 23(g)(1) 4
21
22
23
24
25
26
27
28
Vll
1 NOTICE OF MOTION AND MOTION
2 TO DEFENDANT AND ITS ATTORNEYS OF RECORDS:
3 PLEASE TAKE NOTICE that, on July 2,2010, at 9:00 a.m., or as soon thereafter as the matter
4 may be heard, in Courtroom 6 ofthe above-referenced Court, located at 280 South First Street, San
5 Jose, California 95113, pursuant to Federal Rule of Civil Procedure 23(a)and 23 (b)(3), Plaintiffs
6 Felton A. Spears and Sidney Scholl will and hereby do move this Court to grant class certification in
7 their favor of a Class of persons, defined in the accompanying Memorandum, who received appraisals
8 from Defendant performed in connection with an illegal appraisal referral scheme in violation of
9 Section 8(a) of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2607(a).
10 This Motion is based on this Notice of Motion and Motion, the accompanying Memorandum in
11 Support of the Motion for Class Certification, the Declaration of Michael D. Braun in Support of
12 Plaintiffs' Motion for Class Certification ("Braun Decl."), and the Proposed Order, all filed herewith,
13 the files and records in this case, and such argument and further filings and evidence as this Court may
14 receive on this Motion.
15 MEMORANDUM OF POINTS AND AUTHORITIES
16 Plaintiffs Sidney Scholl and Felton Spears (collectively, "Plaintiffs") respectfully submit this
17 memorandum of points and authorities in support of their motion to certify a class, appoint class
18 representatives and appoint class counsel.
19 I.
20
INTRODUCTION
Plaintiffs seek to certify the following Class against Defendant, First American eAppraiseIT
21
22
23
24
25
26
27
28
(alk/a eAppraiseIT, LLC) ("EA") under Fed. R. Civ. P. 23 (a) and (b)(3):
All consumers in California and throughout the United States who, on or after June 1,2006,
received home loans from Washington Mutual Bank, FA ("WMB,,)l in connection with
appraisals that were obtained through EA.
1 WMB was originally named as a party defendant in this action, but was voluntarily dismissed after
being placed into receivership due to its insolvency and the Federal Deposit Insurance Corporation
substituted into this action for WMB as the receiver and party in interest. See Docket No. 141,
Stipulation of Dismissal of Claims Against Federal Deposit Insurance Corporation, As Receiver For
Washington Mutual Bank.
Case No.: 5:08-CV-00868 (RMW)
1
1 Plaintiffs seek to certify this nationwide Class on a single claim which was sustained by this
2 Court in this action on three separate occasions - a violation of Section 8(a) of the Real Estate
3 Settlement Procedures Act ("RESPA"), 12 U.S.C. 2607(a). Specifically, Section 8(a) provides that,
4 "ln]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any
5 agreement or understanding, oral or otherwise, that business incident to or part of a real estate
6 settlement service involving a federally related mortgage loan shall be referred to any person." Id.
7 Plaintiffs' Complaint alleges that in or about June 2006, WMB entered into a scheme with EA,
8 whereby in exchange for a significant portion of WMB' s residential appraisal business, EA would
9 render appraisals that would support the value of the loans WMB wanted to issue, regardless of whether
10 there was independent justification for such values. Docket No. 149, Second Amended Class Action
11 Complaint ("SAC") ~ ~ 6,90.1 Appraisals that were, by law, to be performed in an independent,
12 objective, impartial and unbiased manner, were instead rendered solely to meet the loan values which
13 WMB wanted to issue. Id. ~ ~ 26-33. Pursuant to this scheme, and contrary to the federally accepted
14 independence requirements ofthe Uniform Standards ofProfessional Appraisal Practice ("USPAP")
15 and RESPA, WMB was given control of over the selection of appraisers, how residential appraisals
16 were performed and, ultimately, the values at which properties were appraised. Id ~ ~ 3 4 - 5 7 . The result
17 of this scheme enabled WMB to issue loans at higher values than the properties would have objectively
18 been able to support. Id ~ ~ 6, 92. WMB would then aggregate and package these home loans and sell
19 them in the financial markets for a substantial profit. Id In return, WMB becameEA's largest client
20 enabling the later to profit handsomely. Id. ~ ~ 34, 36.
21 In denying EA's multiple motions to dismiss Plaintiffs' RESPA claim under 12 U.S.C.
22 2607(a), this Court found that "[a]s alleged, this is the kind of quid-pro-quo benefit in return for a
23 referral that 2607(a)'s proscription of kickbacks is meant to reach:' Order dated March 9, 2009 at 5.
24 Docket No. 147. Moreover, specifically adopting the reasoning of "[t]he two federal appeals courts that
25 have thoroughly considered this issue," this Court concluded that "the intent of Congress is clear,"
26 Plaintiffs have standing to bring claims under 2607(a) by virtue of receiving appraisals done under the
27
28
2 All ~ references are to the SAC unless otherwise noted.
2
Case No.: 5:08-CV-00868 (RMW)
Plaintiffs' Notice ofMotion, Motion for Class
1 tainted process created by EA's and WMB's scheme: Order dated January 8, 2010 at 4, Docket No.
2 182, citing Alston v. Countrywide Financial Corp., 585 F.3d 753, 759-62 (3
rd
Cir. 2009); Carter v.
3 Welles-Bowen Realty, Inc., 553 F.3d 979, 986-88 (6
th
Cir. 2009). See also Order dated August 30, 2009
4 at 5. Docket No. 169. This Court likewise concluded that Plaintiffs are not required to prove their
5 individual appraisals were inflated to have standing for this RESPA violation as the purpose ofthe
6 statute is to prevent and redress the tainted process created by the scheme. Id.
7 Plaintiffs and the Class therefore may establish their RESPA claim and entitlement to statutory
8 damages
3
at trial by proof of the existence ofEA's and WMB's appraisal referral scheme, and proof
9 that their appraisal was done by EA while that scheme was on-going. Accordingly, as this Court has
10 held, proof that any individual appraisal was inflated is not required for this RESPA violation. While
11 the Court is not to resolve the merits of Plaintiffs' claims at the class certification stage, it is
12 noteworthy, as shown throughout this Memorandum, that there is common proof ofEA's and WMB's
13 appraisal referral conspiracy in violation of 2607(a) through EA's own business records. Moreover,
14 common proof ofthe identities ofthe WMB class member borrowers, and the amounts they paid for
15 EA's tainted appraisals is also available through EA's business records and borrowers' HUD-l
16 Settlement Statements.
17 Courts routinely certify classes where, as here, the predominant common issue is ''the existence,
18 scope, duration, effect, and ultimately, the legality of the alleged conspiracy." Jerry Enterprises of
19 Gloucester County, Inc. v. Allied Beverage Group, L.L.c., 178 F.R.D. 437, 442 (D. N.J. 1998), citing 4
20 Herbert B. Newberg & Alba Conte, Newberg on Class Actions 18.25 at 18-81 (3d ed. 1992). See also
21 In re Scrap Metal Antitrust Litig., 527 F.3d 517, 535 (6
th
Cir. 2008); In re TFT-LCD (Flat Panel)
22 Antitrust Litigation, ~ - F.R.D. --,2010 WL 1286478, *24 (N.D. Ca., March 28,2010); In re Static
23 Random Access Memory Antitrust Litig., 2009 U.S. Dist. LEXIS 110407,59-60 (N.D. Cal. 2009);
24
25
26
27
28
3 Plaintiff and the Class seek statutory damages under RESPA Section 8(d)(2) which creates a private
right of action for consumers when their settlement service provider violates section 8(a) by
participating in a prohibited scheme: "Any person or persons who violate the prohibition or limitations
ofthis section shall be jointly and severally liable to the person or persons charged for the settlement
service involved in the violation in an amount equal to three times the amount of any charge paid for
such settlement service." 12 U.S.C. 2607(d)(2).
Case No.: 5:08-CV-00868 (RMW)
3
Plaintiffs.' Notice of Motion, Motion for Class
1 Boynton v. Headwaters, Inc., 2008 U.S. Dist. LEXIS 76008 (W.D. Tenn. 2008); Oregon Laborers-
2 Employers Health & Welfare Trust Fund v. Philip Morris, 188 F.R.D. 365 (D. Or. 1998); 7AA Wright
3 & Miller 1781 ("In general, a determination that the conspiracy issue is common to all the class
4 members and predominates over any individual issues presents few problems."). This includes claims
5 for violations of Section 8(a) ofRESPA. See, e.g., Robinson v. Fountainhead Title Group Corp., 252
6 F.R.D. 275, 278 (D. Md. 2008)(certifying a Section 8(a) claim for "homeowners were charged fees for
7 title work through a sham entity as part of an illegal kickback scheme").
8 As detailed below, Plaintiffs have met all of the requirements of Rule 23(a) and 23(b)(3) and
9 respectfully request the class be certified, they be appointed as class representatives, and their counsel,
10 Michael Braun ofthe Braun Law Group, P.C., Janet Spielberg of the Law Offices of Janet Lindner
11 Spielberg, Ira Spiro and Mark Moore of Spiro Moss, LLP and Joseph N. Kravec, Jr. of Stember
12 Feinstein Doyle & Payne LLC as Co-Counsel for the Class (hereinafter, "Plaintiffs' Counsel") pursuant
13 to Fed. R. Civ. P. 23(g)(l).
14 II.
COMMON EVIDENCE OF RECORD TO DATE
15
A. Conspiracy Between EA and WMB
16 In June 2006, WMB retained EA to administer appraisals ofWMB's residential loans. ~ 3 6 ;
17 Exhibit A.
4
By assigning appraisal oversight to a purportedly independent third party management
18 company such as EA, WMB ostensibly placed a barrier between its loan staff and the property appraiser
19 - a move purportedly designed to prevent WMB from improperly influencing the appraiser and the
20 value placed on a property. ~ 3 4 . In theory, EA was to select independent appraisers, serve as the sole
21 contact with such appraisers, review the appraiser's report, and communicate the unbiased results to
22 WMB. WMB would in turn communicate the appraisal results to WMB borrowers so both the
23 borrower and lender could rely on them in entering the mortgage loans. Id.
24 Although appraiser independence is critical to the appraisal process and supposedly was the
25 underlying purpose of retaining EA, the reality underlying the partnership between EA and WMB
26
27
28
4 All Exhibits are attached to the Declaration of Michael D. Braun in Support of Plaintiffs' Motion
for Class Certification.
Case No.: 5:08-CV-00868 (RMW)
4
1 revealed a darker truth - a conspiracy to inflate appraisals to ensure that home values supported the loan
2 amounts being pushed by WMB lending staff. Exhibit B. In so doing, EA and WMB thoroughly
3 corrupted the independent appraisal process in violation of RESP A.
4 The relationship between EA and WMB was designed to allow WMB control over the appraisal
5 process while hiding behind the guise of independence. Common evidence can be used to demonstrate
6 that the independent appraisal process was corrupted in the following ways:
7 1. EA Agreed To The Use of Appraisers Selected by WMB To "Bring In The
Value"
8
9 Prior to being be retained by WMB to handle a significant portion of its residential appraisal
10 business, EA used a combination of internal staff and third party appraisers. ~ 3 7. Shortly after
11 beginning their relationship, however, WMB insisted, and EA acceded to allowing a group of
12 appraisers ("Preferred Appraisers") selected by WMB to perform WMB appraisals. Exhibit C. These
13 Preferred Appraisers were individuals identified by WMB and whom WMB was confident would
14 appraise properties at values that would support the loan being proffered by WMB lending staff. Id;
15 ~ 4 3 . EA's President explained, "[i]n short, we will now assign all WMB's work to WMB's 'Proven
16 Appraisers' ... We will pay their appraisers whatever they demand. Performance ratings to retain
17 position as a WMB Proven Appraiser will be based on how many come in on value, negating a need for
18 an ROV." Exhibit D. EA's President acknowledged in correspondence with WMB that, "Wamu
19 proven appraisers bring in the value in a greater majority of the time with minimal involvement of the
20 vendor, sales and Appraisal Oversight. I am fine with that, of course, and will happily assign Wamu
21 orders to Wamu proven appraisers instead of eAppraiseit's approved panel appraiser whenever
22 possible." Exhibit E.
23 The individuals on the "Preferred Appraiser List" were hand selected by WMB's loan
24 origination staff. Exhibits C & F. Indeed, requests sent to EA for the addition of specific appraisers to
25 the approved list were often sent by WMB's loan origination staff themselves. Exhibit G. WMB
26 confirmed the role of its loan origination staff in choosing specific appraisers for WMB's "Proven
27 Appraiser List" -- "[The] Proven Appraiser List is being created. This will replace the WMB preferred
28
Case No.: 5:08-CV-00868 (RMW)
5
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list. The initial list of names will be provided by lending with a minimum of two appraisers per
area/county. The list will then be reviewed and approved by the Appraisal Business Oversight Team
and will be checked against our most recent ineligible list. Final list will be provided to VMC's
[vendor management companies]. Majority of work must be assigned to the appraisers on the Proven
Appraiser List on a Priority Basis." Exhibit H.
In exchange for their complicity, these Preferred/Proven Appraisers were typically paid a
"minimum of 20% more than the EAppraiseIt panel." Exhibit 1.
2. EA Knew Allowing WMB to Select Appraisers Was Wrongful And Refused To
Warrant Such Appraisals
EA refused to warrant appraisals done by WMB proven appraisers. In a memo from EA to
WMB Oversight Staff, EA acknowledged that, "eAppraisIT is operating under what appears to be a
mandate from WAMU in utilizing PAL selected appraisers (and this selection is coming from the loan
production staff). Weare then asked to rep and warrant this work. We are concerned about this
arrangement from a risk perspective and view it as being outside our written agreement of2006.
Therefore, until we clarify this issue, we will not be warranting any appraisal performed by a specific
WAMU PAL Appraiser." Exhibit J.
3. EA Colluded with WMB in Allowing WMB's Loan Origination Staff to Have
Direct Contact with Appraisers
Any review and approval by WMB's Appraisal Business Oversight Team was a facade. Ifan
AMC went to WMB's Appraisal Business Oversight team to discuss the pressure being put on it by
WMB's loan origination staff to provide higher home appraisal values, WMB responded by telling the
AMC to work the issue out directlywith the lending staff. WMB insisted that its loan origination staff
have direct contact with appraisers so they could get the appraisals at the value they wanted. EA
permitted this direct involvement to occur. Exhibit K.
s
"[W]e have just added 10 Appraisal Business
5 WMB's Vice President of "Appraisal Oversight" - the division ofWMB that is supposed to be
responsible for ensuring that no undue influence is exerted by WMB' s loan origination staff on
appraisers - stated in an email to EA regarding one ROV for a "low value," that "[t]his is an example of
the issue that has caused sales pushing for a 'proven appraiser' process." Exhibit L.
Case No.: 5:08-CV-00868 (RMW)
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Managers (ABMs) with another two scheduled to begin by October 31st. These senior level staff
appraisers were prior WaMu AFMs and AFAs who are very familiar with the internal ROV process
WaMu had in place prior to outsourcing." Exhibit M. "This geographically distributed team will focus
primarily on the speedy resolution of ROVs and also handle more technically oriented order
escalations. The WaMu production team has been asking for a dedicated resource in their respective
areas to help manage order escalations and ROVs. We believe our ABM group of highly experienced
senior level appraisers will fill this gap and enhance the relationship and communication with the
WaMu production team." Id. "We will be utilizing 12 new Appraisal Business Managers .... to
receive and review incoming ROVs. The ABMs will handle all processing and discussion between the
WaMu originator and subsequent respondent (appraiser or reviewer). Ultimately, the ABM either
agrees or disagrees with the response and renders a decision on future action (i.e. provide an alternate
value)."Id.
4. EA Knew WMB Was Utilizing "Reconsideration of Values" When WMB Was
Dissatisfied With Appraisal Values
Pursuant to the contractual agreement between WMB and EA, WMB had the right to challenge
an appraiser's conclusions by requesting a "reconsideration of value" (also known as a "ROV" or
"rebuttal") when WMB did not like the appraised value of a home. Exhibit A. This rebuttal system
gave WMB a direct way to request that EA reconsider an appraiser's report and to raise the value
assigned to a given home. WMB frequently used this "reconsideration of value" technique to get EA to
provide higher appraisal values on homes to enable its loan origination staffto close the loans. ,-r39.
This is especially true in light ofthe fact that the ROVs were now under the purview of ABMs who
were all former WMB employees hired by EA at the direction of WMB. Exhibit M.
5. EA Agreed to Hire Former WMB Employees to Manage Appraisals
WMB encouraged EA to hire former WMB employees as staff appraisers and appraisal business
managers, the latter of which had authority to override and/or revise the values reached by third party
appraisers. Exhibit M. A WMB executive defined the role of EA' s Appraisal Business Managers in
terms of value disputes in the following way: "... the four appraisers/reviewers would be directly
Case No.: 5:08-CV-00868 (RMW)
7
1 involved in escalations dealing with: ROVs, Valuation issues where the purchase price and appraised
2 value differ with no reconciliations/justifications by the appraiser, Value cuts which we continue to
3 receive from your third party reviewers (Wholesale), proactively making a decision to override and
4 correct the third party appraiser's value or reviewer's value cut, when considered appropriate and
5 supported..." Exhibit U. "We have also just recently added 50 WaMu staff appraisers to our existing
6 panel ofstaff appraisers. Another 20 are expected to join by Nov. 1st. The addition of these staff
7 appraisers will provide lift in many different areas, including.... reducing the incidence of subsequent
8 ROV requests." Exhibit M.
9 6. EA Knew Its Agreement With and Conduct Regarding WMB Was Illegal
10 Internally, EA recognized that use ofWMB's Proven Appraiser List was unlawful, but chose to
11 go along with WMB and continued providing biased appraisal services in order to reap millions of
12 dollars from unsuspecting borrowers. As described by EA's president, "[i]n short, the issuers are using
13 their designated appraisers as mandated by the WMB production force at 20% gross margin and
14 bypassing our panel. We view this as a violation of the OCC, OTS, FDIC and USPAP influencing
15 regulation." Exhibit N.
16 In support ofEA's conclusion that its agreement with WMB was illegal, EA's Executive Vice
17 President prepared a summary of the guidelines regarding appraiser independence and, compared to
18 WMB's Proven Appraiser List, concluded the following: "Based on our conversations we have had
19 with the WMB oversight as well as the questions and answers initiated by our competitor LSI, it is our
20 interpretation that the loan production staffhas a great deal to do with selecting appraisers. The PAL
21 [Proven Appraiser List] has been selected by the loan production staff and the continued use of these
22 appraisers is being monitored by the loan production staff. For example, on the LSI question #1 'Does
23 WMB want to be updated transactionally on every order we can not assign to a PAL?,' WMB's answer
24 is 'Yes, we need a short sentence in the message log so that we can monitor, - AND most important-
25 lending can see why you didn't assign to a PAL service provider. Not using a PAL appraiser will be an
26 issue so we need to ensure we've covered our bases as to why they're not utilized.' This appears to be
27 directly in contradiction to the interagency guidelines...." Exhibit J.
28
Case No.: 5:08-CV-00868 (RMW)
8
Certification and Memorandum in Support.
unlocking PDF's.").
warrants apply. Then we are liable I would say because we have gone along with it.... In addition, I
EA's President testified that it typically received certified appraisals from its appraisers in a
legal concern about collusion. For example, let's say it is discovered that a lender (loan officer at a
STANDARDS FOR CLASS CERTIFICATION
think it will tarnish our reputation in the appraisal community because we are allowing WMB to pick
appraisers based on their loan officers. It makes us look complicit....." Exhibit O.
7. EA At The Direction OfWMB Illegally Unlocked Certified Appraisals
Facilitating Unauthorized Value Changes
lender) is being collusive with an appraiser that is on OUR (WMB) panel. That is, our reps and
EA knew that what WMB was doing, by having its loan origination staff personally select
appraisers, was illegal, and that by agreeing to provide WMB with its "Proven Appraisers" EA was
acting as a conspirator in this scheme. "OTS and acc only control lenders. However, there is the
III.
locked password protected format "to prevent either an employee of eAppraiseIT or at the bank to go in
and alter the data and raise the value or do anything inappropriate.,,6 However, "at the direction ofthe
bank" EA used software to unlock the certified appraisals and then relocked them and passed them
along to the borrowers as an original certified appraisal. !d. EA knew that unlocking certified
appraisals then relocking them and passing them off as the original certified appraisal was illegal.
Exhibit Q ("During a call with Susanna at ACI this morning, I was informed that she received legal
council that unlocking a PDF is against the law. She also said that she is not aware of any other AMC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21 Federal Rule of Civil Procedure 23 provides that an action may be maintained as a class action
22 if each ofthe four requirements of Rule 23(a) and one ofthe three categories of Rule 23(b) is satisfied.
23 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).
24 The determination of whether a class should be certified is not an inquiry into the merits ofthe
25 plaintiffs case, but is limited to whether the allegations in the Complaint satisfy the requirements of
26
27
28
6 Transcript of Proceedings dated June 28,2007 in The Circuit Court of the Eighteenth Judicial,
Circuit in and for Brevard County Florida. eAppraiseit LLC. v. Pamela Crawley, Case No. 05-2007-
Case No.: 5:08-CV-00868 (RMW)
9
1 Rule 23. Eisenv. Carlisle & Jacquelin, 417U.S. 156, 177-78, 94S. Ct. 2140, 40 L. Ed. 2d732 (1974).
2 ("Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the
3 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the
4 merits to the class certification stage"); Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975)
5 ("The court is bound to take the substantive allegations ofthe complaint as true .... ''); Moore v.
6 Hughes Helicopters, Inc., 708 F.2d 475,480 (9th Cir. 1983); Westways World Travel, Inc. v. AMR
7 Corp., 218 F.R.D. 223, 231 (C.D. Cal. 2003) (At the class certification stage, Plaintiffs' allegations are
8 to be accepted astrue and the merits of Plaintiffs' claims are not at issue).
9 The Ninth Circuit recently clarified the standard for class certification under Rule 23. Dukes v.
10 Wal-Mart Stores, Inc., -- F.3d --, 2010 WL 1644259 (9th Cir. Apr. 26, 2010). Under this standard,
11 district courts must perform a rigorous analysis to ensure that each ofthe prerequisites of Rule 23 have
12 been satisfied, but "may not analyze any portion of the merits of a claim that do not overlap with the
13 Rule 23 requirements." Dukes, 2010 WL 1644259, *16. This, however, "does not mean that a district
14 court must conduct a full-blown trial on the merits prior to certification." Id at *5 (citing Gen. Tel. of
15 Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)). As well, "in some cases, the pleadings will be sufficient
16 to render the certification decision...." Id at *10; see also Falcon, 457 U.S. at 160.
17 For the reasons demonstrated below, the Class should be certified.
18 IV. CERTIFICATION OF THE PROPOSED CLASS IS APPROPRIATE BECAUSE THE
CLASS MEETS THE REQUIREMENTS OF RULE 23(a)
19
20
21
22
23
24
25
26
27
28
A. Rule 23(a)(1) - Numerosity
Rule 23(a)(l) of the Federal Rules of Civil Procedure requires that the class be "so numerous
that joinder of all members is impracticable." Gay v. Waiters' & Dairy Lunchmen's Union, 549 F.2d
1330 (9th Cir. 1977). However, "impracticability does not mean impossibility." Harris v. Palm
Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9thCir. 1964); see also Robidoux v. Celani, 987 F.2d
931,935 (2nd Cir. 1993). "When the class is large, numbers alone are dispositive ...." Riordan v.
Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986).
CA-027976 at Exhibit P at 46.
Case No.: 5:08-CY-00868 (RMW)
10
1 As a general rule, classes of forty or more are considered sufficiently numerous." Ikonen v.
2 Hartz Mountain Corp., 122 F.RD. 258, 262 (S.D. Cal. 1998); Swanson v. American Consumer
3 Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (40 sufficient). Moreover, the "[p]laintiffmay satisfy
4 Rule 23(a)(1)'s numerosity requirement by providing '[a] reasonable estimate of the limited number of
5 purported class members.'" Mazza v. Am. Honda Motor Co., 254 F.RD. 610, 617 (C.D. Cal. 2008)
6 quoting In re Badger Mountain Irr. Dist. Securities Litigation, 143 F.R.D. 693, 696 (W.D. Wash.
7 1992); In re Alcoholic Beverages Litig., 95 F.R.D. 321, 324 (E.D.N.Y. 1982) ("A class action may
8 proceed upon estimates as to the size of the proposed class").
9 Here, the class consists of approximately 260,000 consumers, a fact previously represented to
10 the Court by Defendant's counsel. See Exhibit R, Transcript of Hearing dated January 8, 2010 at 4.
11 Moreover, Defendant has produced to Plaintiffs copies of each ofthose appraisals which identify, inter
12 alia, the name of each putative class member and their contact information. See e.g. EA-Spears
13 0000001-0171156; 3334950-4712543. Each of these appraisals, and the appraisal requests,
14 demonstrates that the appraisal was undertaken by EA in connection with a WMB residential loan.
15 Exhibits S & T.
16 The evidence shows that the putative Class consists of hundreds of thousands of members.
17 Accordingly, the numerosity requirement of Rule 23(a)(1) has been satisfied.
18
B. Rule 23(a)(2) - Commonality
19 Rule 23(a)(2) is satisfied when there are questions oflaw or fact that are common to the class.
20 This provision is neither exacting nor difficult to satisfy. Courts have taken a "common sense"
21 approach in determining whether the class is united by common questions oflaw or fact. Blackie, 524
22 F.2d 891, 903. The "commonality" requirement "has been construed permissively [such that] all
23 questions of fact and law need not be common to satisfy the rule." Hanlon v. Chrysler Corp., 150 F.3d
24 1011, 1019 (9th Cir. 1998). Indeed, the commonality requirement is met even if class members'
25 grievances share a single common question of law or fact. Id. at 1022; In re THQ, Inc. Sees. Litig.,
26 2002 U.S. Dist. LEXIS 7753, at *11 (C.D. Cal. Mar. 22, 2002); Haley v. Medtronic, Inc., 169 F.RD.
27 643,648 (C.D. Cal. 1996); Mazza, 254 F.RD. 610, 618 (Only one significant issue oflaw or fact need
28 be demonstrated to satisfy commonality).
Case No.: S:08-CV-00868 (RMW)
11
1 Determining whether a common question exists requires an examination of the underlying facts
2 in light of the legal claims asserted on behalf of the class as a whole. As the Ninth Circuit recently
3 clarified, commonality is satisfied where a lawsuit challenges a system-wide practice or policy that
4 affects all of the putative class members because such a system implicates common factual questions.
5 Dukes, 2010 WL 1644259, *10 (quoting Armstrong v. Davis, 275 F.3d 849,868 (9th Cir. 2001)).
6 Importantly, "it is the plaintiff's theory that matters at the class certification stage, not whether the
7 theory will ultimately succeed on the merits." Dukes, 2010 WL 1644259, *10 (citing United Steel
8 Workers v. ConocoPhillips Co., -- F.3d --, 2010 WL 22701, *5 (9th Cir. Jan. 6,2010).
9 The commonality element is easily satisfied. Each Class member's claim arises from the same
10 alleged conduct, namely, the conspiracy between WMB and EA whereby in exchange for a significant
11 portion of WMB' s residential appraisal business, EA would render appraisals that would support the
12 value of the loans WMB wanted to issue, regardless of whether there was independent justification for
13 such values.
14 Numerous key questions of fact and law, including the following, are common to all class
15 members:
16 1. Whether WMB and EA entered into a scheme whereby in exchange for a significant portion
17 of WMB' s residential appraisal business, EA would render appraisals that would support the
18 value of the loans WMB wanted to issue;
19 2. Whether, in an effort to effectuate this scheme, EA allowed WMB to select appraisers for a
20 proven appraiser list as a means to control the appraisal process;
21 3. Whether EA used the proven appraiser list to conduct appraisals for WMB customers;
22 4. Whether EA's collusion with WMB was a wrongful act;
23 5. Whether EA and WMB had an agreement to commit a wrongful act;
24 6. Whether the agreement between EA and WMB was written or implied by conduct;
25 7. Whether the agreement, and/or conduct, between EA and WMB is sufficient to establish the
26 existence of a conspiracy;
27 8. Whether the scheme between EA and WMB was an agreement or understanding within the
28 meaning ofRESPA 8(a);
Case No.: 5:08-CV-00868 (RMW)
12
1 9. Whether Defendants' actions described herein violate the Real Estate Settlement Procedures
2 Act, 12 U.S.C. 2607(a) (RESPA 8(a));
3 These are but a few examples of the common inquiries that underlie the litigation. As shown in
4 Sections I and II herein, Plaintiffs and the Class have common proof of this scheme from EA's own
5 records, and Plaintiffs and Class members all share the same legal claim. A common nucleus of
6 operative facts and law undoubtedly exists and the commonality requirement of Rule 23(a)(2) is
7 therefore satisfied.
8
c. Rule 23(a)(3) - Typicality-
9 Rule 23(a)(3) is satisfied where the plaintiffs' claims are "typical ofthe claims" of the class.
10 Mazza, 254 F.R.D. 610, 618 ("Typicality requires that the representative class members make claims
11 that are typical of those ofthe absent class members"). The typicality requirement of Rule 23 is
12 satisfied ifthe claim of the named class representative arises "from the same course of conduct that
13 gives rise to the claims of unnamed class members and ... are based on the same legal theory that
14 would be advanced were the unnamed class members to bring individual actions." Thomas v. Baca,
15 231 F.R.D. 397,401 (C.D. Cal. 2005); Hanon v. Dataprods. Corp., 976 F.2d 497,508 (9th Cir. 1992)
16 ("typicality" test is whether members of proposed class "have the same or similar injury, whether the
17 action is based on conduct which is not unique to the named plaintiffs, and whether other class
18 members have been injured by the same course of conduct"). Finding typicality does not require that
19 the claims of the representative party be identical to the claims of class members. Rather, typicality
20 results if the representative plaintiffs' claims "arise[] from the same event, practice or course of
21 conduct that gives rise to the claims of the absent class members and if their claims are based on the
22 same legal or remedial theory." In re Dynamic Random Access Memory Antitrust Litig., 2006 U.S.
23 Dist. LEXIS 39841, at *29-*30 (N.D. Cal. June 5, 2006) (citations omitted).
24 The Ninth Circuit has described the standard for satisfying the "typicality" requirement as a
25 "permissive" one, and held that "representative claims are 'typical' if they are reasonably co-extensive
26 with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at
27 1020; Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990)
28 (Rule 23 "does not require the named plaintiffs to be identically situated with all other class members.
13
Case No.: 5:08-CY-00868 (RMW)
1 It is enough iftheir situations share a 'common issue oflaw or fact' and are 'sufficiently parallel to
2 insure a vigorous and full presentation of all claims for relief. ''') (citations omitted). Thus, the
3 typicality requirement is satisfied even if there are factual distinctions between the claims of the named
4 plaintiff and those of other class members. Armstrongv. Davis, 275 F.3d 849, 869 (9th Cir. 2001).
5 In this case, Plaintiffs' and the Class' claims all arise from the same course of events - the
6 conspiratorial conduct between EA and WMB. Each ofthe Plaintiffs' and class members' claims will
7 rise or fall on the determination of whether there was an actionable civil conspiracy or scheme between
8 EA and WMB and whether such a scheme was in violation of RESPA. Both Plaintiffs had residential
9 loans with WMB during the Class Period which were conducted by appraisers assigned by EA. They
10 each had a legal right to an appraisal free from an illegal scheme, and as such stand in the exact same
11 shoes as every other class member. The ultimate success of their claim will depend on proving an
12 identical set of facts and supporting law as every other class member. As these issues "arise[] from the
13 same event or course of conduct that gives rise to claims of other class members and the claims are
14 based on the same legal theory," Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985), the
15 Plaintiffs are typical.
16
D. Rule 23(a)(4) - Adequacy of Representation
17 Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the
18 interests of the class." Fed. R. Civ. P. 23(a)(4). In the Ninth Circuit, Rule 23(a)(4) is satisfied where
19 (i) counsel for the class is qualified and competent to vigorously prosecute the action; and (ii) the
20 interests of the proposed class representative are not antagonistic to the interests of the class. See, e.g.,
21 Staton v. Boeing, 327 F.3d 938, 957 (9th Cir. 2003); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d
22 507,512 (9th Cir. 1978).
23 Rule 23 (a)(4) permits certification of a class action only if "the representative parties will fairly
24 and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). "Whether the class
25 representatives satisfy requirement depends on 'the qualifications of counsel for the representatives, an
26 absence of antagonism, a sharing of interests between representatives and absentees, and the
27 unlikelihood thatthesuit is collusive.''' Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010), citing
28 Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). "[A] class representative must be part ofthe
14
Case No.: 5:08-CV-00868 (RMW)
1 class and possess the same interest and suffer the same injury as the class members." Castaneda v.
2 Burger King Corp., 2009 WL 3151168 at * 16 (N.D. Cal.2009) citing East Texas Motor Freight
3 System, Inc. v. Rodriguez, 431 U.S. 395,403 (1977). The sharing of interests factor - only requires
4 similarity, not identity, of interests, and it precludes only adverse interests. See Dukes v. Wal-Mart
5 Stores, Inc., 222 F.R.D. 137, 168-69 (N.D.CaI2004)(Affirmed in part and remanded in part by, En banc
6 Dukes v. Wal-Mart Stores, Inc., 2010 U.S. App. LEXIS 8576 (9th Cir. Cal., Apr. 26, 2010))
7 Not every conflict of interest between a class representative and class members prevents
8 adequacy. In re Visa Checks/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2nd Cir. 2001). Rather,
9 only a fundamental conflict that goes to the heart of the litigation prevents certification, and speculative
10 conflicts should be disregarded at the class certification stage. Id. Once a primafacie showing has
11 been made that these tests have been met, the burden shifts to the defendants to prove that the class
12 representative will not fairly and adequately protect the interests of the class. Armour v. Network
13 Assocs., Inc., 171 F. Supp. 2d 1044, 1053 (N.D. Cal. 2001).
14 Plaintiffs are adequate representatives because they are members of the Class they seek to
15 represent and have no interests antagonistic to those of the other members of the Class. Where the
16 claims of the class members and the class representative are coextensive, as is the case here, there is no
17 conflict. General Tel. Co. v. Falcon, 457 U.S. 147, 157-8, fn. 13 (1982).
18 Each Plaintiff has testified that they read and understood the basic allegations of the complaint
19 and expressed their willingness to prosecute this matter on behalf ofthe Class. (See, e.g., Scholl
20 Deposition Transcript of Sidney Scholl at pages 49:17-50:10; 55:18-24 (Exhibit V); Deposition
21 Transcript of Felton Spears at pages 34:20-35:1 (Exhibit W). For example, Ms. Scholl testified that she
22 understood that this matter was being prosecuted on behalf of a class and that she was involved with the
23 decision to bring it. as a class action (Exhibit Vat 26:24 to 28:4). Ms. Scholl articulated the reason she
24 filed the lawsuit ("I paid for appraisals that 1thought were independent and credible.... With the
25 expectation that those appraisals were what they said they would be and they weren't") (Exhibit Vat
26 38:1-14). Ms. Scholl also recognized her obligations as a class representative ("1 understand that 1
27 needed to seek legal counsel, which 1did, ... that 1needed to help in discovery, which 1have, ....
28
Case No.: 5:08-CV-00868 (RMW)
15
1 monitor the on-goings of the case, which I have done consistently, [a]nd ifit goes to trial, I will be
2 required to participate in trial.) (Exhibit V at 38:25-39:19).
3 Similarly, Plaintiff Spears testified that he read and reviewed the complaint before it was filed
4 (Exhibit W at 69:10-21; 77:6-8) and routinely consulted with his lawyers about the case ("two times a
5 month and then it depends on if I have an issue or questions, I call them") (Exhibit W at 28: 11-16). Mr.
6 Spears was involved with the decision to prosecute this matter on behalf of a class (Exhibit W at 34:20
7 to 35:1) and understood his duties as a class representative (''to obtain legal counseling", "to participate
8 in deposition," "to monitor [the litigation]," and to be willing ready and able to go to trial)( Exhibit W
9 at 33:2-34:15; 40:5-10; 41:4-16).
lOInlight of this testimony, Plaintiffs are clearly adequate.
11 With respect to the second inquiry under Fed. R. Civ. P. 23(a)(4), Plaintiffs' counsel are
12 qualified, experienced and generally able to conduct the proposed litigation. As the firm resumes
13 evidence, each ofthe Plaintiffs' attorneys have extensive experience successfully litigating complex
14 class actions and other complex litigation in federal and state courts across the country. See Exhibits X,
15 Y, Z, AA. Their experience includes numerous cases in the areas of consumer protection. Indeed,
16 Plaintiffs' counsel have already demonstrated their adequacy by vigorously prosecuting this matter in
17 the course of this litigation (i.e. litigating motions to dismiss, motion to stay, motion for jurisdictional
18 discovery, motion for administrative relief, motion for jurisdictional discovery, and motion for
19 interlocutory appeal, among others). In re Emu/ex Corp., 210 F.R.D. 717, 720 (C.D. Cal. 2002) ("In
20 evaluating the adequacy of attorneys representing the class, a court may examine the attorneys'
21 professional qualifications, skill, experience, and resources. The court may also look at the attorneys'
22 demonstrated performance in the suit itself'). Respectfully, Plaintiffs' counsel are adequate.
23 v.
24
THE REQUIREMENTS OF RULE 23(b)(3) ARE SATISFIED
Federal Rule of Civil Procedure 23(b)(3) has two requirements: (1) predominance of common
25 questions of law or fact over questions affecting only individual members, and (2) superiority of a class
26 action to other available methods for the fair and efficient adjudication ofthe controversy.
27 The elements of the claims of Plaintiff and the alleged class are subject to adjudication by
28 common, generalized evidence and, therefore, predominance is satisfied. Predominance does not
16
Case No.: 5:08-CV-00868 (RMW)
1 demand that the common issues be identical so long as there is an essential common factual link
2 between all class members and the defendant for which the law provides a remedy. In re Wells Fargo
3 Home Mortg. Overtime Pay Litigation, 527 F. Supp. 2d 1053, 1065 (N.D. Cal. 2007), citing Local Joint
4 Executive Bd of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th
5 Cir. 2001). The predominance inquiry tests whether proposed class is sufficiently cohesive to warrant
6 adjudication by representation. Amchem, 521 U.S. at 623. The inquiry trains on the legal or factual
7 questions that qualify each class member's case as a genuine controversy. Id
8 As the Supreme Court noted in Amchem, "Predominance is a test readily met in certain cases
9 alleging consumer or securities fraud or violations ofthe antitrust laws." Id at 625. Thus, determining
10 whether common questions predominate on any of the asserted class claims requires an analysis of the
11 elements of those claims. Plascencia v. Lending 1st Mortg., 259 F.R.D. 437, 446 (N.D. Cal. 2009).
12 The determination, however, must not be based upon whether individualized damages determinations
13 will be necessary. Instead, the focus is on the "legal or factual questions that qualify each class
14 member's case as a genuine controversy." Wixon, 2009 WL 3353445 at * 7. A single common issue
15 may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining
16 individual questions." Olson v. Tesoro Refining and Mktg, 2007 WL 2703053, *6 (W.D. Wash. 2007)
1 7 (citing treatise).
18 Examination of the claims at issue shows that Rule 23(b)(3) predominance is met here.
19
A. Rule 23(b )(3) - Common Questions of Law and Fact Predominate
20 "The Rule 23(b )(3) predominance inquiry tests whether the proposed classes are sufficiently
21 cohesive to warrant adjudication by representation." Visa Checks/MasterMoney, 280 F.3d 124, 136.
22 This criteria is normally satisfied when there is an essential common factual link between all class
23 members and the defendant for which the law provides a remedy. Valentino v. Carter-Wallace, Inc., 97
24 F.3d 1227 (9th Cir. 1996).
25 Courts generally focus on the issue ofthe defendants' liability in deciding whether the
26 "predominance" standard is met, and if the liability is common to the class. Blackie, 524 F.2d at 902;
27 In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig., 122 F.R.D. 251, 256 (C.D.
28 Cal. 1988) (where plaintiff alleges common nucleus of misrepresentations, common questions
17
Case No.: 5:08-CV-00868 (RMW)
1 predominate over any purported differences between individual class members with respect to damages,
2 causation and reliance). Such an inquiry is particularly cogent in this case because the principal focus
3 of the alleged RESPA violation is the relationship between EA and WMB. Plaintiffs will seek to prove
4 the existence of a conspiratorial agreement whereby in exchange for WMB' s appraisal business, EA
5 rendered appraisals that would support the value of the loans that WMB sought to issue, regardless of
6 the true value ofthe properties. Plaintiffs need to prove this case only once by demonstrating such an
7 agreement.
8 As set forth above, all the factual issues necessary to resolve Plaintiffs' dispute are common
9 issues that can be proven on a class-wide basis. Plaintiffs' and Class members' claims emanate from a
10 common course of misconduct by Defendants. These questions need only be answered once. Courts
11 have routinely held that where, as here, plaintiffs allege a common course of conduct of
12 misrepresentations, omissions, and other wrongdoing that allegedly affect all the class members in the
13 same or similar manner, that those questions will predominate over any individual questions. Blackie,
14 524 F.2d 891, 905-08.
15 Pursuant to Rule 23(b)(3), Plaintiffs seek to certify a class on a single cause of action under
16 RESPA 2607(a). Plaintiffs allege EA and WMB engaged in a civil conspiracy, the result of which is a
17 violation ofRESPA 2607(a).
18 The elements of civil conspiracy are: (1) the formation and operation of a conspiracy, (2) a
19 wrongful act committed in furtherance of the conspiracy, and (3) damages resulting from the wrongful
20 act. Wasco Prods. v. Southwall Techs., Inc., 2006 U.S. App. LEXIS 816 (9th Cir. Cal. 2006).
21 RESPA 2607(a) states: "No person shall give and no person shall accept any fee, kickback, or
22 thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to
23 or a part of a real estate settlement service involving a federally related mortgage loan shall be referred
24 to any person." To prove a violation of 2607(a) Plaintiffs will need to show: (1) a thing of value; (2)
25 exchanged pursuant to an agreement or understanding; (3) which was part of a real estate settlement
26 service involving a federally related mortgage loan.
27 Eachone of these inquiries is subject to common proof and need only be answered once.
28
Case No.: 5:08-CV-00868 (RMW)
18
1 1. Formation and Operation of a Conspiracy
2 Plaintiffs have alleged and provided underlying documents supporting the existence and
3 implementation of an agreement between EA and WMB whereby in exchange for a significant portion
4 ofWMB's residential appraisal business, EA would render appraisals that would support the value of
5 the loans WMB wanted to issue, regardless of whether there was independent justification for such
6 values. See Supra at 4-10. Although class certification is not an inquiry into the merits (See, e.g.,
7 Blackie v. Barrack, 524 F.2d 891,901 n.17 (9th Cir. 1975), Plaintiffs have already presented material
8 evidence supporting their claim regarding the existence of a conspiratorial agreement and its
9 implementation, which Plaintiffs fully expects to further bolster once merits discovery begins.
10 For the purpose of this class certification motion, however, the critical inquiry regarding the
11 existence and implementation of a conspiratorial agreement will focus on the defendant's conduct and
12 not require any kind of individualized inquiry. Conspiracies plead in the fashion of the one at the case at
13 bar - a common course of conduct that effected all putative class members - routinely withstand
14 scrutiny under Fed. RCiv. P 23(b)(3) and are certified. See also In re Scrap Metal Antitrust Litigation,
15 527 F.3d 517, 535 (6
th
Cir. 2008); In re TFT-LCD (Flat Panel) Antitrust Litigation, -- F.RD. --, 2010
16 WL 1286478, *24 (N.D. Ca., March 28,2010); In re Static Random Access Memory Antitrust Litig.,
17 2009 u.s. Dist. LEXIS 110407,59-60 (N.D. Cal. Nov. 25, 2009); Boynton v. Headwaters, Inc., 2008
18 u.s. Dist. LEXIS 76008 (W.D. Tenn. 2008) )(certified claim of civil conspiracy to be remedied under a
19 theory of constructive trust finding whether Defendants "knowingly engaged in a scheme to deprive
20 Plaintiffs of the '629 Patent's profits and whether that conduct warrants an award of punitive damages"
21 was common to the class); Jerry Enterprises o/Gloucester County, Inc. v. Allied Beverage Group,
22 L.L.c., 178 F.R.D. 437, 442 (D. N.J. 1998), citing 4 Herbert B. Newberg & Alba Conte, Newberg on
23 Class Actions 18.25 at 18-81 (3d ed. 1992); Oregon Laborers-Employers Health & Welfare Trust
24 Fund v. Philip Morris, 188 F.RD. 365 (D. Or. 1998); 7AA Wright & Miller 1781 ("In general, a
25 determination that the conspiracy issue is common to all the class members and predominates over any
26 individual issues presents few problems."). This includes claims for violations of Section 8(a) of
27 RESPA. See, e.g., Robinson v. Fountainhead Title Group Corp., 252 F.RD. 275 (D. Md.
28
Case No;: 5:08-CV-00868 (RMW)
19
1
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3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
21
22
23
24
25
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27
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2008)(certifying a Section 8(a) claim for "homeowners charged fees for title work through a sham
entity as part of an illegal kickback scheme").
2. Wrongful Act Committed In Furtherance Of The Conspiracy
Plaintiffs have already provided great detail of the nature of the conspiratorial conduct at issue
in this case. See Sections I and II, supra. It resulted in the issuance of260,000 tainted appraisals to
Plaintiffs and the Class. Exhibit R at 4.
3. Damages Resulting From The Wrongful Act
Civil conspiracy is not an actionable cause of action in and of itself. Grisham v. Philip Morris
US.A., 2005 U.S. App. LEXIS 4956, 10-11 (9th Cir. Cal. 2005) quoting Applied Equip. Corp. v. Litton
Saudi Arabia Ltd., 7 Cal. 4th 503,510-11,28 Cal. Rptr. 2d 475,869 P.2d 454 (l994)(holding that there
is no separate cause of action for civil conspiracy). Ultimately, it will require the pleading and proof of
another substantive claim, here a violation ofRESPA 8(a), 12 U.S.C. 2607(a). The damages that
ensue from the scheme alleged in the complaint are derived from the statutory damage provision under
RESPA.
This Court has already determined that the alleged tainted, sham-appraisals are a "thing of
value" within the meaning 2607(a) (Order dated March 9,2009 at 4-5; Order dated August 30, 2009 at
6; Order dated January 8, 2010 at 4-5). This Court also embraced the reasoning set forth in Carter v.
Welles-Bowen Realty, Inc., 553 F.3d 979, 986 (6th Cir. 2009) and Alston v. Countrywide Financial
Corp., 585 F.3d 753, 759-62 (3fd Cir. 2009), wherein after considering the text and purpose ofthe
statute, the legislative history, and seeking the advice of the Department of Housing and Urban
Development, the court concluded that "the plain meaning of the statutory language and the persuasive
authorities examined by the court indicate that Congress created a private right of action to impose
damages where kickbacks and unearned fees have occurred - even when there is no overcharge." Id. at
986- 86. Order dated August 30, 2009 at 5.
7
On these authorities, this Court concluded that that "the
7 "RESPA allows individuals to police the marketplace in order to ensure impartiality of referrals and
competition between settlement service providers, thereby creating a market-wide deterrent against
unnecessarily high settlement costs." Capell, 2007 U.S. Dist. LEXIS 82570,2007 WL 3342389, at *5
(emphasis added). Ultimately, "[t]he purpose ofthe statute is to prevent certain practices that are
20
Case No.: 5:08-CV-00868 (RMW)
1 intent of Congress is clear," Plaintiffs have standing to bring claims under 2607(a) by virtue of
2 receiving appraisals done under the tainted process created by EA' s and WMB' s scheme, and they are
3 not required to prove their appraisals were inflated to have standing for this RESPA violation. Order
4 dated January 8, 2010 at 4, citing Alston v. Countrywide Financial Corp., 585 F.3d 753, 759-62 (3
rd
Cir.
5 2009); Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979,986-88 (6
th
Cir. 2009). See also Order dated
6 August 30, 2009 at 5. Where a violation of Section 8(a) ofRESPA (12 U.S.C. 2607(a)) occurs, the
7 plain language ofthe RESPA statute provides that defendants are liable to the "person or persons
8 charged for the settlement service involved in the violation for an amount equal to three times the
9 amount of any charge paid for such settlement service." 2607(d)(2).
10 Here, Plaintiffs and the class allege that they have been injured by the deprivation of a right
11 conferred by RESPA. The statute creates an individual right to receive referral services untainted by an
12 agreement made in violation of 2607(a). By its plain terms, RESPA section 8(d)(2) creates a private
13 right of action for a consumer when his settlement service provider violates section 8(a) "Any person or
14 persons who violate the prohibition or limitations of this section shall be jointly and severally liable to
15 the person or persons charged for the settlement service involved in the violation in an amount equal to
16 three times the amount of any charge paid for such settlement service." 12 U.S.C. 2607(d)(2). As this
17 Court has noted, the focus of section 8(d)(2) is on whether there is a Section 8 violation - not on
18 whether the person charged for the settlement service involved in the violation has been overcharged or
19 in this case had inflated values in their appraisal. Order dated January 8, 2010 at 4. RESPA provides a
20 statutory remedy of "three times the amount of any charge paid for such settlement service."
21 2607(d)(2). The amount charged every consumer necessary for this calculation is readily available
22 from EA's records as well as the HUD-l statements at line 803 which are required to be maintained by
23 the lender for all loans. In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig.,
24 122 F.R.D. 251, 256 (C.D. Cal. 1988) (where plaintiff alleges common nucleus of misrepresentations,
25
26
27
28
harmful to all consumers by establishing that consumers have a right not to be subject to those practices
and providing both public and private remedies of that right." Kahrer v. Ameriquest Mortg. Co., 418 F.
Supp. 2d 748, 756 (W.D. Pa. 2006) (quoting Patton, No. CV 100-132, at *5-6, 12). Carter v. Welles-
Bowen Realty, Inc., 553 F.3d 979, 988 (6th Cir. Ohio 2009)
21
Case No.: 5:08-CV-00868 (RMW)
1
2
3
4
5
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8
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15
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common questions predominate over any purported differences between individual class members with
respect to damages).
4. Agreement or Understanding.
As demonstrated above, (See Section II), Plaintiff has evidence tending to show, and will
provide additional evidence establishing the existence of the conspiracy. Analytically, proving the first
element of a conspiracy -- "the formation and operation of a conspiracy" and the second element of
RESPA 2607(a) violation are coextensive. Ultimately, if Plaintiff is able to prove the conspiracy, the
violation of RESPA will flow there-from, without a transaction by transaction analysis of any given
appraisal. Under these circumstances, the predominance requirement of Fed.R.Civ.P 23(b)(3) is clearly
met.
"Section 8(a)'s prohibition against the paYment of formal kickbacks or fees for the
referral of business... does not require establishment of an overcharge to the
consumer. Section 8(a) simply prohibits the payment of fees pursuant to any
agreement or understanding for the referral of settlement services. 12 U.S.C.
2607(a). Thus, a factual issue common to the proposed class exists as to whether
[Defendant] [] entered into and executed the type of referral agreement which could
violate section 8(a).
Benway v. Res. Real Estate Servs., LLC, 239 F.R.D. 419, 425 (D. Md. 2006).
5. A Thing Of Value
The question of whether the appraisals as alleged here qualified as a thing of value under
RESPA was addressed by this Court on three different occasions - each time with the same result.
"Here plaintiffs argue that the inflated appraisals constituted 'things of value' because they allowed
WMB to sell the loans in higher volume to financial institutions at higher prices." The Court explained:
"[a]s alleged, this is the kind of quid-pro-quo benefit in return for a referral that 2607 (a)'s
proscription of kickbacks is meant to reach. Indeed, the language of the statute, encompassing all
benefits constituting a 'thing of value,' and the interpreting regulation, seem to include a wide variety
of benefits that could be received in return for business referrals. The court therefore finds that the
alleged inflated appraisals fall within 2607(a). Order dated March 9,2009 at 5; Order dated August
30,2009 at 6; Order dated January 8, 2010 at 4-5.
Case No.: 5:08
c
CV-00868 (RMW)
22
1 6. Real Estate Settlement Service Involving A Federally Related Mortgage Loan
2 Each ofthe Plaintiffs and class members' loans were issued pursuant to a federally related
3 mortgage loan as evidenced by its denotation on a HUD-l. See e.g. Exhibit BB. Moreover, RESPA
4 specifically identifies appraisals as "settlement services" within the meaning ofRESPA. See 12 U.S.C.
5 2602(3) ("any service provided in connection with a real estate settlement" including, but not limited
6 to, title searches, title insurance, attorney services, appraisals, credit reports, pest and fungus
7 inspections, real estate agent or broker services, loan processing," etc. (emphasis added)). See also,
8 Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979,986 (6th Cir. 2009).
Id.
"superiority":
superior. Gete v. IN.S., 121 F.3d 1285, 1299 (9th Cir. 1997).
10 Rule 23(b)(3)(A)
In considering superiority, a court will generally balance in terms of fairness and efficiency, the
merits of a class action against alternative methods of adjudication to determine if a class action is
Rule 23(b)(3) - A Class Action is Superior to Individual Actions
(A) the interest of members of the class in individually controlling the
prosecution ... of separate actions; (B) the extent and nature of any
litigation concerning the controversy already commenced by ... members
ofthe class; (C) the desirability ... of concentrating the litigation of the
claims in the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.
B.
Rule 23(b)(3) also requires that the Court determine whether "a class action is superior to other
available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).
Rule 23(b)(3) provides the following nonexclusive factors to guide the Court in determining
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23 The first factor (the interest of each class member in controlling the prosecution of separate
24 actions) supports the superiority ofa class action in the underlying matter. Fed. R. Civ. P. 23(b)(3)(A).
25 In a case with thousands of class members (or more), each class member's interest in having the claims
26 ofthe class aggregated in a single class action lawsuit substantially outweighs the interest of a class
27 member in individual control ofthe litigation. See, e.g., Carnegie v. Household Int'l, Inc., 376 F.3d
28
Case No.: 5:08-CY-00868 (RMW)
23
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656,661 (7th Cir. 2004) ("The more claimants there are, the more likely a class action is to yield
substantial economies in litigation").
In the pending litigation, the amount of each Class member's individual claims is relatively
small making individual litigation impracticable. See, e.g., SAC ,-r60 (Scholl paid $255.00 for her EA
appraisal); ,-r65 (Spears paid $361.00 for his EA appraisal). As the Supreme Court has observed, class
actions permit plaintiffs to pool claims which would be uneconomical to litigate individually, and "most
ofthe plaintiffs would have no realistic day in court if a class action were not available." Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 809, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985). See, e.g., In re
Worldcom Inc. Sec. Litig., 219 F.R.D. 267, 304 (S.D.N.Y. 2003) ("Few individuals could even
contemplate proceeding with this litigation in any context other than through their participation in a
class action, given the expense and burden that such litigation would entail").
2. Rule 23(b)(3)(B)
Plaintiffs' Counsel are not aware of any pending litigation in which the claims at issue in this
case are being separately pursued by any other putative class members. As a result, the second factor
(the extent and nature of any litigation concerning the controversy already commenced by members of
the class) also supports the conclusion that a class action is the superior method for the resolution of the
claims in the Complaint. West v. Circle K Stores, Inc., No. Civ. S-04-0438WBS GGH, 2006 U.S. Dist.
LEXIS 42074, at *26 (E.D. Cal. June 12,2006) ("In the absence of competing lawsuits, it is also
unlikely that other individuals have an interest in controlling the prosecution of this action ... ").
3. Rule 23(b)(3)(C)
Consideration ofthe third factor (the desirability of concentrating the litigation ofthe claims in
the particular forum) further demonstrates that a class action is superior. EA is a California corporation
with its principle place of business in California and operates throughout the State of California,
making this forum a logical and appropriate place to litigate this matter.
4. Rule 23(b)(3)(D)
Finally, an analysis of the fourth factor (the difficulties that are likely to be encountered in the
management ofa class action) confirms the superiority ofthe class mechanism to adjudicate this
controversy. Fed. R. Civ. P. 23(b)(3)(D).
Case No.: 5:08-CV-00868 (RMW)
24
1 There is no reason to believe that the prosecution of the claims of the putative class members in
2 a single class action will create more management problems than the alternative (i. e., the prosecution of
3 thousands of separate lawsuits by each class member). Significantly, it is proper for a court, in deciding
4 the "best" available method, to consider the "inability of the poor or uninformed to enforce their rights,
5 and the improbability that large numbers of class members would possess the initiative to litigate
6 individually." Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974). Here, the
7 class consists oftens ofthousands of residential borrowers asserting relatively small claims with no
8 other reasonable means of enforcing their rights. Given the commonality established above, the
9 adjudication of class claims would not be significantly more burdensome than ifthe matter were
10 prosecuted individually. To the contrary, it would be much more burdensome on the courts, parties and
11 judicial system to entertain a multiplicity oflawsuits regarding EA's common conduct. It is well
12 accepted that "a class action has to be unwieldy indeed before it can be pronounced an inferior
13 alternative ... to no litigation at all." Carnegie v. Household Int'l. Inc., 376 F.3d 656, 661.
14 VisaCheck/MasterMoney, 280 F.3d 124, 140 (the mere possibility of complexity or unmanageability
15 does not defeat a class action.).
16 Accordingly, prosecuting the case at bar as a class action does not present any difficulties within
17 the meaning of Rule 23(b)(3)(D), and the Class mechanism is clearly the superior vehicle by which to
18 adjudicate this controversy.
19 VI. CONCLUSION
20 For the reasons discussed herein, Plaintiffs respectfully request the Court certify this case as
21 class action, appoint them as class representatives, and appoint their attorneys as counsel for the class.
22 DATED: May 7, 2010
23
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Case No.: 5:08-CV-00868 (RMW)
Respectfully Submitted,
BRAUN LAW GROUP, P.e.
By: sfMichael D. Braun
Michael D. Braun
10680 W. Pico Boulevard, Suite 280
Phone: (310) 836-6000
Fax: (310) 836-6010
25
Plaintiffs'Notice of Motion, Motion for Class
1 Michael D. Braun (BarNo. 167416)
2 10680W. Pico Blvd., Suite 280
3 Phone: (310) 836-6000
Fax: (310) 836-60106
4 E-Mail: service@braunlawgroup.com
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
5
6
7
8
9
10
11
12
13
14
Janet Lindner Spielberg (Bar No. 221926)
LAW OFFICE OF JANET LINDNER
SPIELBERG
Phone: (310) 392-8801
Fax: (310) 278-5938
E-Mail: ilspielberg@ilslp.com
Counselfor Plaintiffs
Joseph N. Kravec, Jr. (admitted pro hac vice)
STEMBER FEINSTEIN DOYLE
PAYNE & CORDES, LLC
429 Forbes Avenue, 17th Floor
Tel: (412) 281-8400
Fax: (412) 281-1007
Ira Spiro (Bar No. 67641)
Mark Moore (BarNo. 180473)
SPIRO MOSS, LLP
11377 West Olympic Blvd., Fifth Floor
Tel: (310) 235-2468
Fax: (310) 235-2456
E-Mail: Mark@spiromoss.com
15 FELTON A. SPEARS, JR. and SIDNEY
SCHOLL, on behalf ofthemselves and all
16 others similarly situated,
July 2, 2010
9:00 a.m.
Courtroom 6, 4th Floor
CASE NO. 5:08-CV-:00868 (RMW)
DATE:
TIME:
CTRM:
CLASS ACTION
PLAINTIFFS' NOTICE OF MOTION,
MOTION FOR CLASS CERTIFICATION
AND MEMORANDUM IN SUPPORT
REDACTED
Defendant.
Plaintiffs,
vs.
19 FIRST AMERICANEAPPRAISEIT,
(alk/a eAppraiseIT, LLC),
20 a Delaware limited liability company,
21
22
23
24
17
18
25
26
27
28
Case No.: 5:08-eV-00868 (RMW)
. Certification and Memorandum in Support
III. STANDARDS FOR CLASS CERTIFICATION 9
N.
Page
INTRODUCTION 1
COMMON EVIDENCE OF RECORD TO DATE .4
CERTIFICATION OF THE PROPOSED CLASS IS APPROPRIATE BECAUSE THE
CLASS MEETS THE REQUIREMENTS OF RULE 23(A) 10
A. RuIe 23(a)(I) - Numerosity 10
B. Rule 23(a)(2) - Commonality 11
C. RuIe 23(a)(3) - Typicality ; 13
D. Rule 23(a)(4) - Adequacy of Representation 14
THE REQUIREMENTS OF RULE 23(B)(3) ARE SATISFIED 16
TABLE OF CONTENTS
EA Agreed To The Use ofAppraisers Selected by WMB To "Bring In The
Value" 5
EA Knew Allowing WMB to Select Appraisers Was Wrongful And Refused To
Warrant Such Appraisals 6
EA Colluded with WMB in Allowing WMB's Loan Origination Staff to Have
Direct Contact with Appraisers 6
Dissatisfied With Appraisal Values , 7
EA Agreed to Hire Former WMB Employees to Manage Appraisals 7
EA Knew Its Agreement With and Conduct Regarding WMB Was Illegal 8
EA At The Direction Of WMB Dlegally Unlocked Certified Appraisals
Facilitating Unauthorized Value Changes 9
Rule 23(b)(3) - Common Questions of Law and Fact Predominate 17
1. Formation and Operation ofa Conspiracy 19
2. Wrongful Act Committed In Furtherance Of The Conspiracy 20
3. Damages ResuIting From The Wrongful Act ....
20
4. Agreement or Understanding , 22
Conspiracy Between EA and WMB 4
1.
2.
3.
4.
7.
5.
6.
A.
A.
1
2
3 I.
4 II.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 V.
23
24
25
26
27
28
CASE NO.: 5:0S-CV-00868 (RMW)
TABLE OF CONTENTS
1
2
3
4
5
6
7
8
9
10
VI.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
.27
28
TABLE OF CONTENTS (Cont'd)
5. A Thing Of Value 22
6. Real Estate Settlement Service Involving A Federally Related Mortgage Loan .23
B. Rule 23(b)(3) - A Class Action is Superior to Individual Actions 23
1. Rule 23(b)(3)(A) : 23
2. Rule 23(b)(3)(B) 24
3. Rule 23(b)(3)(C) 24
4. Rule 23(b)(3)(D) 24
CONCLUSION 25
Case No.: 5:08-CV-00868 (RMW)
11
-I
2
3
CASES
7
8
Armstrong v. Davis,
275 F.3d 849 (9th Cir. 2001) ~ 11, 13
13
Benway v. Res. Real Estate Servs., LLC,
239 F.R.D. 419 (D. Md. 2006) 22
Blaclde v. Barrack,
14 524 F.2d 891 (9th Cir. 1975) 9, 11, 17, 18, 19
15 Boynton v. Headwaters, Inc.,
2008 U.S. Dist. LEXIS 76008 (W.D. Tenn. 2008) .4, 19
16
Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp.,
17. 917F.2d 1171 (9thCir.1990) 13
18 Carnegie v. Household Int 'I, Inc.,
376 F.3d 656 (7th Cir. 2004) 23, 25
Capell, .
2007 U.S. Dist. LEXIS 82570, 2007 WL 3342389, at *5 20
Castaneda v. Burger King Corp.,
2009 WL 3151168 at * 16 (N.D. Cal.2009) .. 14
Carter v. Welles-Bowen Realty, Inc.,
553 F.3d 979 (6
th
Cir. 2009) 3, 20, 21, 22
19
20
21
22
23
24 Dukes v. Wal-Mart Stores, Inc., - F.3d --,2010
WL 1644259(9thCir.Apr.26,2010) ~ 10, 11, 12
Dukes v. Wal-Mart Stores, Inc.,
222 F.R.D. 137 (N.D.Cal2004) 15
25
26
27 East Texas MotorFreight System, Inc. v. Rodriguez,. .
431 U.S. 395 (1977) ; 14
28
CASE NO.: 5:08-CV-00868 (RMW)
11l
TABLE OF AUTHORITIES (ct'dl
1
2
3
4
5
In re THQ, Inc. Sees. Litig.,
Case No. CVOO-1783AHM(Ex), 2002 U.S. Dist. LEXIS 7753
(C.D. Cal. Mar. 22, 2002) 11
In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig.,
122 F.R.D. 251 (C.D. Cal. 1988) 17,21
In re Visa Checks/MasterMoney Antitrust Litig.,
280 F.3d 124 (2nd Cir. 2001) 15, 17,25
6 In re Wells Fargo Home Mortg. Overtime Pay Litigation,
527 F. Supp. 2d 1053, 1065 (N.D. Cal. 2007) .16
7
In re Worldcom Inc. Sec. Litig.,
8 219 F.R.D. 267 (S.D.N.Y. 2003) 23
9 Jerry Enterprises ofGloucester County, Inc. v. AlliedBeverage Group, L.L.c.,
178 F.R.D. 437 (D. N.J. 1998) 3, 19
10
11
Kahrer v. Ameriquest Mortg. Co.,
418 F. Supp. 2d 748 (W.D. Pa. 2006) 20
13
12 Lerwill v. Injlight Motion Pictures, Inc.,
582 F. 2 ~ 507 (9th Cir. 1978) 14
Local Joint Executive Bd ofCulinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,
14 244 F.3d 1152 (9th Cir. 2001) 16
15 Mazza v. Am. Honda Motor Co.,
254 F.R.D. 610 (C.D. Cal. 2008) 10, 11, 13
v
Robinson v. Fountainhead Title Group Corp., . 4 19
252 F.R.D. 275 (D. Md. 2008) ,
Robidoux v. Celani,
987 F.2d 931 (2nd Cir. 1993) 10
Plascencia v. Lending 1st Mortg.,
259 F.R.D. 437 (N".D. Cal. 2009) 17
Olson v. Tesoro Refining andMktg,
2007 WL 2703053, *6 (W.D. Wash. 2007) 17
Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 105 S. Ct. 2965,86 L. Ed. 2d 628 (1985) 23
Moore v. Hughes Helicopters, Inc.,
708 F.2d 475, 480 (9th Cir. 1983); ~ 10
Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris,
188 F.R.D. 365 (D. Or. 1998) 4, 19
22
23
24 Riordan v. Smith Barney,
113 F.R.D. 60 (N".D. TIL 1986) ~ 10
25
26
27
28
16
17
18
19
20
21
1
2
3
Rodriguez v. Hayes,
591 F.3d 1105 (9th Cir. 2010) 14
Schwartz v. Harp,
108 F.R.D. 279 (C.D. Cal. 1985) 14
4 Scrap Metal Antitrust Litig.,
527 F.3d 517 (6
th
Cir. 2008) 3
5
Staton v. Boeing,
6 327 F.3d938 (9th Cir. 2003) 14
Thomas v. Baca,
231 F.R.D. 397 (C.D. Cal. 2005) 13
United Steel Workers v. ConocoPhillips Co., -- F.3d --, 2010
WL 22701, *5 (9th Cir. Jan. 6, 2010) 12
11
Valentino v. Carter-Wallace, Inc.,
12 97 F.3d 1227 (9th Cir. 1996) 17
13 Walters v. Reno,
145 F.3d 1032 (9th Cir. 1998) 14
Zinser v. Accufix Research Inst., Inc.,
20 253 F.3d 1180 (9th Cir. 2001) 9
14
15
16
17
18
19
Wasco Prods. v. Southwall Techs., Inc.,
2006 U.S. App. LEXIS 816 (9th Cir. Cal. 2006) 18
West v. Circle K Stores, Inc.,
No. Civ. S-04-0438WBS GGH, 2006 U.S. Dist. LEXIS 42074
(E.D. Cal. June 12, 2006) 24
Westways World Travel, Inc. v. AMR Corp.,
218 F.R.D. 223 (C.D. Cal. 2003) 10
21
22 STATUTES
23 12 U.S.C. 2602(3) ; 22
24 12 U.S.C. 2607(a) passim
25 12 U.S.C. 2607(d)(2) 3,21
26 7AA Wright & Miller 1781 .. 4,19
27 RESPA Section 8(a) ~ 4,19,21,22
28 RESPA section 8(d)(2) 3,21
vi
1 NOTICE OF MOTION AND MOTION
2 TO DEFENDANT AND ITS ATTORNEYS OF RECORDS:
3 PLEASE TAKE NOTICE that, on July 2, 2010, at 9:00 a.m., or as soon thereafter as the matter
4 may be heard, in Courtroom 6 ofthe above-referenced Court, located at 280 South First Street, San
5 Jose, California 95113, pursuant to Federal Rule of Civil Procedure 23(a).and 23 (b)(3), Plaintiffs
6 Felton A. Spears and Sidney Scholl will and hereby do move this Court to grant class certification in
7 their favor of a Class ofpersons, defmed in the accompanying Memorandum, who received appraisals
8 from Defendant performed in connection with an illegal appraisal referral scheme in violation of
9 Section 8(a) ofthe Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2607(a).
10 This Motion is based on this Notice ofMotion and Motion, the accompanying Memorandum in
11 Support ofthe Motion for Class Certification, the Declaration ofMichael D. Braun in Support of
12 Plaintiffs' Motion for Class Certification ("Braun Decl."), and the Proposed Order, all filed herewith,
13 the files and records in this case, and such argument and further filings and evidence as this Court may
14 receive on this Motion.
15 MEMORANDUM OF POINTS AND AUTHORITIES
16 Plaintiffs Sidney Scholl and Felton Spears (collectively, "Plaintiffs") respectfully submit this
17 memorandumof points and authorities in support of their motion to certify a class, appoint class
18 representatives and appoint class counsel.
(alk/a eAppraiseIT, LLC) ("EA") under Fed. R. Civ. P. 23 (a) and (b)(3):
19 I.
20
21
INTRODUCTION
Plaintiffs seek to certify the following Class against Defendant, First American eAppraiseIT
All consumers in California and throughout the United States who, on or after June 1, 2006,
received home loans from Washington Mutual Bank, FA ("WMB"i in connection with
appraisals that were obtained through EA.
1 WMB was originally named as a party defendant in this action, but voluntarily dismiss<:d after
being placed into receivership due to its and the DepoSIt Insurance Corporation
substituted into this action for WMB as the receIver and party m mterest. See No. 1
1
,
Stipulation ofDismissal of Claims AgainSt Federal Deposit Insurance CorporatIon, As ReceIver For
Washington Mutual Bank.
22
23
24
25
26
27
28
Case No.: 5:08-cv-00868 (RMW)
1
Plaintiffs' Notice ofMotion., Motion for Class
1
2
3
4
5
6
7
8
9
10
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12
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Plaintiffs seek to certify this nationwide Class on a single claim which was sustained by this
Court in this action on three separate occasions - a violation of Section 8(a) of the Real Estate
Settlement Procedures Act ("RESPA"), 12 U.S.C. 2607(a). Specifically, Section 8(a) provides that,
"[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any
agreement or understanding, oral or otherwise, that business incident to or part of a real estate
settlement service involving a federally related mortgage loan shall be referred to any person." Id
Plaintiffs' Complaint alleges that in or about June 2006, WMB entered into a scheme with EA,
whereby in exchange for a significant portion of WMB's residential appraisal business, EA would
render appraisals that would support the value of the loans WMB wanted to issue, regardless of whether _
there- was independent justification for such values. Docket No. 149, Second Amended Class Action
Complaint ("SAC") ~ 6,90.
2
Appraisals that were, by law, to be performed in an independent,
objective, impartial and unbiased manner, were instead rendered solely to meet the loan values which
WMB wanted to issue. Id m126-33. Pursuant to this scheme, and contrary to the federally accepted
independence requirements of the Uniform Standards of-Professional Appraisal Practice ("USPAP")
and RESPA, WMB was given control ofover the selection of appraisers, how residential appraisals
were performed and, ultimately, the values at which properties were appraised. Id. "34-57. The result
ofthis scheme enabled WMB to issue loans at higher values than the properties would have objectively
been.able to support. Id. mr 6, 92. WMB would then aggregate and package these home loans and sell
them in the financial markets for a substantial profit. Id. In return, WMB became-EA's largest client
enabling the later to profit handsomely. Id ~ 34,36.
In denying EA's multiple motions to dismiss Plaintiffs' RESPA claim under 12 U.S.c.
2607(a), this Court found that "[a]s alleged, this is the kind ofquid-pro-quo benefit in return for a
referral that 2607(a)'s proscription of kickbacks is meant to reach." Order dated March 9, 2009 at 5.
Docket No. 147. Moreover, specifically adopting the reasoning of "[t]he two federal appeals courts that
have thoroughly considered this issue," this Court concluded that "the intent of Congress is clear,"
Plaintiffs have standing to bring claims under 2607(a) by virtue ofreceiving appraisals done under the
2 All' references are to the SAC unless otherwise noted.
Case No.: 5:08-CV-00868 (RMW)
1 tainted process created by EA's and WMB's scheme: Order dated January 8, 2010 at 4, Docket No.
2 182, citing Alston v. Countrywide Financial Corp., 585 F.3d 753, 759-62 (3
rd
Cir. 2009); Carter v.
3 Welles-Bowen Realty, Inc., 553 F.3d 979, 986-88 (6
th
Cir. 2009). See also Order dated August 30, 2009
4 at 5. Docket No. 169. This Court likewise concluded that Plaintiffs are not required to prove their
. 5 individual appraisals were inflated to have standing for this RESPA violation as the purpose of the
6 statute is to prevent and redress the tainted process created by the scheme. Id
7 Plaintiffs and the Class therefore may establish their RESPA claim and entitlement to statutory
8 damages
3
at trial by proof of the existence ofEA's and WMB's appraisal referral scheme, and proof
9 that their appraisal was done by EA while that scheme was on-going. Accordingly, as this Court has
10 held, proofthat any individual appraisal was inflated is not required for this RESPA violation. While
11 the Court is not to resolve the merits of Plaintiffs' claims at the class certification stage, it is
12 noteworthy, as shown throughout this Memorandum, that there is common proof ofEA's and WMB's
13 appraisal referral conspiracy in violation of 2607(a) through EA's own business records. Moreover,
14 common proof of the identities ofthe WMB class member borrowers, and the amounts they paid for
15 EA's tainted appraisals is also available through EA's business records and borrowers' HUD-1
16 Settlement Statements.
17 Courts routinely certify classes where, as here, the predominant common issue is "the existence,
18 scope, duration, effect, and ultimately, the legality of the alleged conspiracy." Jerry Enterprises of
19 Gloucester County, Inc. v. Allied Beverage Group, L.L.c., 178 F.R.D. 437,442 (D. N.J. 1998), citing 4
20 Herbert B. Newberg & Alba Conte, Newberg on Class Actions 18.25 at 18-81 (3d ed. 1992). See also
21 In re Scrap Metal Antitrust Litig., 527 F.3d 517, 535 (6
th
Cir. 2008); Inre TFT-LCD (Flat Panel)
22 Antitrust Litigation, F.R.D. --,2010 WL 1286478, *24 (N.D. Ca., March 28,2010); In re Static
23 Random Access Memory Antitrust Dttg., 2009 U.S. Dist. LEXIS 110407,59-60 (N.D. Cal. 2009);
3 Plaintiff and the Class seek statutory damages under RESPA Section 8(d)(2) which creates a private
right ofaetion for consumers when their settlement service provider. violates by. . .
participating in a prohibited scheme: "Any person or persons who VIOlate the prohibItion or lnmtations
ofthis section shall be jointly and severally liable to the person or persons charged for the
service involved in the violation in an amount equal to three times the amount of any charge paid for
such settlement service." 12 U.S.C. 2607(d)(2).
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Case No.: 5:08-CV-00868 (RMW)
3
Plaintiffs.' Notice ofMotion, Motion for Class
1 Boynton v. Headwaters, Inc., 2008 U.S. Dist. LEXIS 76008 (W.D. Tenn. 2008); Oregon Laborers-
2 Employers Health & Welfare Trust Fundv. Philip Morris, 188 F.R.D. 365 (D. Or. 1998); 7AA Wright
3 & Miller 1781 ("In general, a determination that the conspiracy issue is common to all the class
4 members and predominates over any individual issues presents few problems."). This includes claims
5 for violations of Section 8(a) ofRESPA. See, e.g., Robinson v. Fountainhead Title Group Corp., 252
6 F.R.D. 275,278 (D. Md. 2008)(certifying a Section 8(a) claim for "homeowners were charged fees for
7 title work through a sham entity as part ofan illegal kickback scheme").
8 As detailed below, Plaintiffs have met all ofthe requirements of Rule 23(a) and 23(b)(3) and
9 respectfully request the class be certified, they be appointed as class representatives, and their counsel,
10 Michael Braun ofthe Braun Law Group, P.C., Janet Spielberg ofthe Law Offices of Janet Lindner
11 Spielberg, Ira Spiro and Mark Moore of Spiro Moss, LLP and Joseph N. Kravec, Jr. ofStember
12 Feinstein Doyle & Payne LLC as Co-Counsel for the Class (hereinafter, "Plaintiffs' Counsel") pursuant
13 to Fed. R. Civ. P. 23(g)(l).
14 II.
COMMON EVIDENCE OF RECORD TO DATE
company such as EA, WMB ostensibly placed a barrier between its loan staff and the property appraiser
4 All Exhibits are attached to the Declaration of Michael D. Braun in Support of Plaintiffs' Motion
for Class Certification.
A. Conspiracy Between EA andWMB
In June 2006, WMB retained EA to administer appraisals ofWMB's residential loans. '36;
Exhibit A.
4
By assigning appraisal oversight to a purportedly independent third party management
- a move purportedly designed to prevent WMB from improperly influencing the appraiser and the
value placed on a property. '34. In theory, EA was to select independent appraisers, serve as the sole
contact with such appraisers, review the appraiser's report, and communicate the unbiased results to
WMB. WMB would in turn communicate the appraisal results to WMB borrowers so both the
borrower and lender could rely on them in entering the mortgage loans. Id.
Although appraiser independence is critical to the appraisal process and supposedly was the
underlying purpose ofretaining EA, the reality underlying the partnership between EA and WMB
4
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business, EA used a combination ofintemal staffand third party appraisers. -,r37. Shortly after
Prior to being be retained by WMB to handle a signifIcant portion of its residential appraisal
beginning their relationship, however, WMB insisted, and EA acceded to allowing a group of
revealed a darker truth - a conspiracy to inflate appraisals to ensure that home values supported the loan
amounts being pushed by WMB lending staff. Exhibit B. In so doing, EA and WMB thoroughly
corrupted the independent appraisal process in violation of RESPA.
The relationship between EA and WMB was designed to allow WMB control over the appraisal
process while hiding behind the guise of independence. Common evidence can be used to demonstrate
that the independent appraisal process was corrupted in the following ways:
1. EA Agreed To The Use of Appraisers Selected by WMB To "Bring In The
Value"
appraisers ("Preferred Appraisers") selected by WMB to perform WMB appraisals. Exhibit C. These
Preferred Appraisers were individuals identifIed by WMB and whom WMB was confident would
appraise properties at values that would support the loan being proffered by WMB lending staff Id;
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23 The individuals on the "Preferred Appraiser List" were hand selected by WMB's loan
24 origination staff. Exhibits C & F. Indeed, requests sent to EA for the addition of specific appraisers to
25 the approved list were often sent by WMB's loan origination staff themselves. Exhibit G. WMB
26 confIrmed the role of its loan origination staff in choosing specific appraisers for WMB's "Proven
27 Appraiser List"
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Case No.: 5:08-CV-00868 (RMW)
5
2. EA Knew Allowing WMB to Select Appraisers Was Wrongful And Refused To
Warrant Such Appraisals
Plaintiffs' Notice ofMotion. Motion for Class
6
3. EA Colluded with WMB in Allowing WMB's Loan Origination StatTto Have
Direct Contact with Appraisers
EA refused to warrant appraisals done by WMB proven appraisers.
Case No.: 5:08-CV-00868 (RMW)
Any review and approval by WMB's Appraisal Business Oversight Team was a facade. Ifan
AMC went to WMB' s Appraisal Business Oversight team to discuss the pressure being put on it by
WMB's loan origination staffto provide higher home appraisal values,
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Dissatisfied With Appraisal Values
Pursuant to the contractual agreement between WMB and EA,
gave WMB a direct way to request that EA reconsider an appraiser's report and to raise the value
Exhibit A. This rebuttal system
7
Case No.: 5:08-CV-00868 (RMW)
assigned to a given home. WMB frequently used this "reconsideration of value" technique to get EA to
provide higher appraisal values on homes to enable its loan origination staffto close the loans. ~ 3 9 .
This is especially true in light of the fact that the ROVs were now under the pUrview of ABMs who
were all former WMB employees hired by EA at the direction of WMB. Exhibit M.
5. EA Agreed to Hire Former WMB Employees to Manage Appraisals
WMB encouraged EA to hire former WMB employees as staff appraisers and appraisal business
managers, the latter of which had authority to override and/or revise the values reached by third party
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9 6. EA Knew Its Agreement With and Conduct Regarding WMB Was Illegal
10 Internally, EA recognized that use of WMB' s Proven Appraiser List was unlawful, but chose to
11 go along with WMB and continued providing biased appraisal services in order to reap millions of
12 dollars from unsuspecting borrowers.
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III _' Exhibit N.
16 In support ofEA's conclusion that its agreement with WMB was illegal,
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Case No.: 5:08-CV-00868 (RMW)
Certification and Memorandum in Supp.ort.
STANDARDS FOR CLASS CERTIFICATION
7. EA At The Direction OfWMB Illegally Unlocked Certified Appraisals
Facilitating Unauthorized Value Changes
6 . Transcript ofProceedings dated June 28,2007 in The Circuit Court of the Eighteenth Judicial,
Circuit inaild for Brevard County Florida. eAppraiseit LLC. v. Pamela Crawley, Case No. 05-2007-
Federal Rule of Civil Procedure 23 provides that an actionmay be maintained as a class action
if each of the four requirements of Rule 23(a) and one ofthe three categories of Rule 23(b) is satisfied.
Zinser v. Accufzi Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).
The determination of whether a class should be certified is not an inquiry into the merits ofthe
plaintiffs case, but is limited to whether the allegations in the Complaint satisfy the requirements of
EA's President testified that it typically received certified appraisals from its appraisers in a
locked password protected format "to prevent either an employee ofeAppraiseIT or at the bank to go in
and alter the data and raise the value or do anything inappropriate.,,6 However, "at the direction ofthe
bank" EA used software to unlock the certified appraisals and then relocked them and passed them
along to the borrowers as an original certified appraisal. Id. EA knew that unlocking certified
appraisals then relocking them and passing them off as the original certified appraisal was illegal.
III.
1 EA knew that what WMB was doing, by having its loan origination staffpersonally select
2 appraisers, was illegal, and that by agreeing to provide WMB with its "Proven Appraisers" EA was
3 acting as a conspirator in this scheme. __
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Case No.: 5:08-CV-00868 (RMW)
1 Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78,94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974).
2 ("Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the
3 commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the
4 merits to the class certification stage"); Blaclde v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975)
5 ("The court is bound to take the substantive allegations ofthe complaint as true .... ''); Moore v.
6 Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983); Westways World Travel, Inc. v. AMR
7 Corp., 218 F.R.D. 223, 231 (C.D. Cal. 2003) (At the class certification stage, Plaintiffs' allegations are
8 to be accepted as true and the merits of Plaintiffs' claims are not at issue).
9 The Ninth Circuit recently clarified the standard for class certification under Rille 23. Dukes v.
10 Wal-MartStores, Inc., -- F.3d --, 2010 WL 1644259 (9th Cir. Apr. 26, 2010). Under this standard,
11 district courts must perform a rigorous analysis to ensure that each ofthe prerequisites of Rule 23 have
12 been satisfied, but "may not analyze any portion of the merits ofa claim that do not overlap with the
13 Rule 23 requirements." Dukes, 2010 WL 1644259, *16. This, however, "does not mean that a district
14 court must conduct a full-blown trial on the merits prior to certification." Id at *5 (citing Gen. Tel. of
15 Sw. v. Falcon, 457 U.S. 1 4 7 ~ 160-61 (1982)). As well, "in some cases, the pleadings will be sufficient
16 to render the certification decision...." Id at *10; see also Falcon, 457 U.S. at 160.
17 For the reasons demonstrated below, the Class should be certified.
18 IV. CERTIFICATION OF THE PROPOSED CLASS IS APPROPRIATE BECAUSE THE
CLASS MEETS THE REQUIREMENTS OF RULE 23(a)
A. Rule 23(a)(1) - Numerosity
Rille 23(a)(I) ofthe Federal Ru1es of Civil Procedure requires that the class be "so numerous
that joinder of all members is impracticable." Gay v. Waiters' & Dairy Lunchmen's Union, 549 F.2d
1330 (9th Cir. 1977). However, "impracticability does not mean impossibility." Harris v. Palm
Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9thCir. 1964); see also Robidoux v. Celani, 987 F.2d
931,935 (2nd Cir. 1993). "When the class is large, numbers alone are dispositive ...." Riordan v.
Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986).
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CA-027976 at Exhibit P at 46.
Case No.: 5:08-CV-00868 (RMW)
10
1 As a general rule, classes of forty or more are considered sufficiently numerous." Ikonen v.
2 Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1998); Swanson v. American Consumer
3 Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (40 sufficient). Moreover, the "[p]laintiffmay satisfy
4 Rule 23(a)(1)'s numerosity requirement by providing '[a] reasonable estimate ofthe limited number of
5 purported class members.''' Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 617 (C.D. Cal. 2008)
6 quoting In re Badger Mountain Irr. Dist. Securities Litigation, 143 F.R.D. 693, 696 (W.D. Wash.
7 1992); In re Alcoholic Beverages Litig., 95 F.R.D. 321,324 (RD.N.Y. 1982) ("A class action may
8 proceed upon estimates as to the size of the proposed class").
9 Here, the class consists of approximately 260,000 consumers, a fact previously represented to
10 the Court by Defendant's counsel. See Exhibit R, Transcript of Hearing dated January 8,2010 at 4.
11 Moreover, Defendant has produced to Plaintiffs copies ofeach of those appraisals which identify, inter
12 alia, the name of each putative class member and their contact information. See e.g. EA-Spears
13 Each of these appraisals, and the appraisal requests,
14 demonstrates that the appraisal was undertaken by EA in connection with a WMB residential loan.
15 Exhibits S & T.
16 The evidence shows that the putative Class consists ofhundreds ofthousands of members.
17 Accordingly, the numerosity requirement of Rule 23(a)(1) has been satisfied.
18 B. Rule 23(a)(2) - Commonality
19 Rule 23(a)(2) is satisfied when there are questions oflawor fact that are common to the class.
20 This provision is neither exacting nor difficult to satisfy. Courts have taken a "common sense"
21 approach in determining whether the class is united by common questions oflaw or fact. Blackie, 524
22 F.2d 891, 903. The "commonality" requirement "has been construed permissively [such that] all
23 questions of fact and law need not be common to satisfy the rule." Hanlon v. Chrysler Corp., 150 F.3d
24 1011, 1019 (9th Cir. 1998). Indeed, the commonality requirement is met even if class members'
25 grievances share a single common question oflaw or fact. Id. at 1022; In re THQ, Inc. Sees. Litig.,
26 2002 U.S. Dist. LEXIS 7753, at *11 (C.D. Cal. Mar. 22, 2002); Haley v. Medtronic, Inc., 169 F.R.D.
27 643,648 (C.D. Cal. 1996); Mazza, 254 F.R.D. 610, 618 (Only one significant issue oflaw or fact need
28 be demonstrated to satisfy commonality).
Case No.: 5:08-CV-00868 (RMW)
11
Certificationand Memorandum in Support
members:
such values.
value ofthe loans WMB wanted to issue;
Numerous key questions offact and law, including the following, are common to all class
Certification and Memorandumin Support
12
meaning ofRESPA 8(a);
1. Whether WMB and EA entered into a scheme whereby in exchange for a significant portion
ofWMB's residential appraisal business, EA would render appraisals that would support the
proven appraiser list as a means to control the appraisal process; .
3. Whether EA used the proven appraiser list to conduct appraisals for WMB customers;
4. Whether EA's collusion with WMB was a wrongful act;
5. Whether EA and WMB had an agreement to commit a wrongful act;
6. Whether the agreement between EA and WMB was written or implied by conduct;
7. Whether the agreement, and/or conduct, between EA and WMB is sufficient to establish the
existence ofa conspiracy;
8. Whether the scheme between EA and WMB was an agreement or understanding within the
2. Whether, in an effort to effectuate this scheme, EA allowed WMB to select appraisers for a
theory will ultimately succeed on the merits." Dukes, 2010 WL 1644259, *10 (citing United Steel
Workers v. ConocoPhillips Co., -- F.3d --, 2010 WL 22701, *5 (9th Cir. Jan. 6,2010).
lmportantly,."it is the plaintiff's theory that matters at the class certification stage, not whether the
Case No.: 5:08-CV-00868 (RMW)
Dukes, 2010 WL 1644259, *10 (quoting Armstrong v. Davis, 275 F.3d 849,868 (9th Cir. 2001)).
Determining whether a common question exists requires an examination ofthe underlying facts
in light ofthe legal claims asserted on behalf ofthe class as a whole. As the Ninth Circuit recently
clarified, commonality is satisfied where a lawsuit challenges a system-wide practice or policy that
affects all of the putative class members because such a system implicates common factual questions.
The commonality element is easily satisfied. Each Class member's claim arises from the same
alleged conduct, namely, the conspiracy between WMB and EA whereby in exchange for a significant
portion ofWMB's residential appraisal business, EA would render appraisals that would support the
value ofthe loans WMB wanted to issue, regardless of whether there was independent justification for
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9. Whether Defendants' actions described herein violate the Real Estate Settlement Procedures
Act, 12 U.S.C. 2607(a) (RESPA 8(a;
231 F.R.D. 397, 401 (C.D. Cal. 2005); Hanon v. Dataprods. Corp., 976 F.2d 497,508 (9th Cir. 1992)
(''typicality'' test is whether members of proposed class "have the same or similar injury, whether the
action is based on conduct which is not unique to the named plaintiffs, and whether other class
Case No.: 5:08-CV-00868 (RMW)
c. Rule 23(a)(3) - Typicality
Rule 23(a)(3) is satisfied where the plaintiffs' claims are ''typical ofthe claims" of the class.
Mazza, 254 F.R.D. 610, 618 ("Typicality requires that the representative class members make claims
that are typical of those ofthe absent class members"). The typicality requirement of Rule 23 is
satisfied ifthe claim of the named class representative arises "from the ~ e course of conduct that
gives rise to the claims of unnamed class members and ... are based on the same legal theory that
would be advanced were the unnamed class members to bring individual actions." Thomas v. Baca, ,
These are but a few examples ofthe common inquiries that underlie the litigation. As shown in
Sections I and II herein, Plaintiffs and the Class have common proof ofthis scheme from EA's own
records, and Plaintiffs and Class members all share the same legal claim. A common nucleus of
operative facts and law undoubtedly exists and the commonalityrequirement of Rule 23(a)(2) is
therefore satisfied.
members have been injured by the same course ofconduct"). Finding typicality does not require that
the claims ofthe representative party be identical to the claims of class members. Rather, typicality
results if the representative plaintiffs' claims "arise[] from the same event, practice or course of
conduct that gives rise to the claims ofthe absent class members and if their claims are based on the
same legal or remedial theory." In re Dynamic RandomAccess Memory Antitrust Litig., 2006 U.S.
Dist. LEXIS 39841, at *29-*30 (N.D. Cal. June 5, 2006) (citations omitted).
The Ninth Circuit has described the standard for satisfying the ''typicality'' requirement as a
"permissive" one, and held that "representative c l ~ s are 'typical' if they are reasonably co-extensive
with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at
1020; Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990)
(Rule 23 "does not require the named plaintiffs to be identically situated with all other class members.
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plaintiff and those of other class members. Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001).
In this case, Plaintiffs' and the Class' claims all arise from the same course ofevents - the
It is enough iftheir situations share a 'common issue of law or fact' and are 'sufficiently parallel to
insure a vigorous and full presentation of all claims for relief."') (citations omitted). Thus, the
typicality requirement is satisfied even if there are factual distinctions between the claims ofthe named
interests of the class." Fed. R. Civ. P. 23(a)(4). In the Ninth Circuit, Rule 23(a)(4) is satisfied where
(i) counsel for the class is qualified and competent to vigorously prosecute the action; and (ii) the
interests of the proposed class representative are not antagonistic to the interests of the class. See, e.g.,
Staton v. Boeing, 327 F.3d 938,957 (9th Cir. 2003); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d
507,512 (9th Cir. 1978).
Rule 23 (a)(4) permits certification ofa class action only if "the representative parties will fairly
and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). "Whether the class
representatives satisfy requirement depends on 'the qualifications ofcounsel for the representatives, an
absence ofantagonism, a sharing of interests between representatives and absentees, and the
unlikelihood that the suit is collusive.'" Rodriguez v. Hayes, 591 F.3d 1105,1125 (9th Cir. 2010), citing
Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998). "[A] class representative must be part ofthe
14
conspiratorial conduct between EA and WMB. Each ofthe Plaintiffs' and class members' claims will
rise or fallon the determination of whether there was an actionable civil conspiracy or scheme between
EA and WMB and whether such a scheme was in violation of RESPA. Both Plaintiffs had residential
loans with WMB during the Class Period which were conducted by appraisers assigned by EA. They
each had a legal right to an appraisal free from an illegal scheme, and as such stand in the exact same
shoes as every other class member. The ultimate success oftheir claim will depend on proving an
identical set offacts and supporting law as every other class member. As these issues "ariseD from the
same event or course of conduct that gives rise to claims of other class members and the claims are
based on the same legal theory," Schwartz v. Harp, 108 F.R.D. 279,282 (C.D. Cal. 1985), the
Plaintiffs are typical.
D. Rule 23(a)(4) - Adequacy of Representation
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the
Case No.: 5:08-CV-00868 (RMW)
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Plaintiffs are adequate representatives because they are members of the Class they seek to
claims ofthe class members and the class representative are coextensive, as is the case here, there is no
represent and have no interests antagonistic to those of the other members of the Class. Where the
. .
conflict. General Tel. Co. v. Falcon, 457 U.S. 147, 157-8, fn. 13 (1982).
Each Plaintiffhas testified that they read and understood the basic allegations ofthe complaint
Plaintiffs' Notice ofMotion. Motion for Class
15
Case No.: 5:08-CV-00868 (RMW)
and expressed their willingness to prosecute this matter on behalf of the Class. (See, e.g., Scholl
Deposition Transcript of Sidney Scholl at pages 49:17-50:10; 55:18-24 (Exhibit V); Deposition
Transcript of Felton Spears at pages 34:20-35:1 (Exhibit W). For example, Ms. Scholl testified that she
understood that this matter was being prosecuted on behalf ofa class and that she was involved with the
decision to bring it. as a class action (Exhibit V at 26:24 to 28:4). Ms. Scholl articulated the reason she
filed the lawsuit ("I paid for appraisals that I thought were independent and credible.... With the
expectation that those appraisals were what they said they would be and they weren't") (Exhibit Vat
38:1-14)..Ms. Scholl also recognized her obligations as a class representative ("I understand that 1
needed to seek legal counsel, which I did, ... that I needed to help in discovery, which I have, ....
Stores, Inc., 222 F.R.D. 137,168-69 (N.D.Cal2004)(Affirmed in part and remanded in part by, En banc
Dukes v. Wa/-Mart Stores, Inc., 2010 U.S. App. LEXIS 8576 (9th Cir. Cal., Apr. 26,2010
class and possess the same interest and suffer the same injury as the class members." Castaneda v.
Burger King Corp., 2009 WL 3151168 at * 16 (N.D. Cal.2009) citing East Texas Motor Freight
System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). The sharing of interests factor- only requires
similarity, not identity, of interests, and it precludes only adverse interests. See Dukes v. Wal-Mart
Not every conflict ofinterest between a class representative and class members prevents
adequacy. In re Visa Checks/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2nd Cir. 2001). Rather,
only a fundamental conflict that goes to the heart of the litigation prevents certification, and speculative
conflicts should be disregarded at the class certification stage. Id Once a primafacie showing has
been made that these tests have been met, the burden shifts to the defendants to prove that the class
representative will not fairly and adequately protect the interests of the class. Armour v. Network
Assocs., Inc., 171 F. Supp. 2d 1044,1053 (N.D. Cal. 2001).
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discovery, motion for administrative relief, motion for jurisdictional discovery, and motion for
Plaintiffs' counsel have already demonstrated their adequacy by vigorously prosecuting this matter in
the course of this litigation (i.e. litigating motions to dismiss, motion to stay, motion for jurisdictional
interlocutory appeal, among others). In re Emu/ex Corp., 210 F.R.D. 717, 720 (C.D. Cal. 2002) ("In
evaluating the adequacy ofattorneys representing the class, a court may examine the attorneys'
professional qualifications, skill, experience, and resources. The court may also look at the attorneys'
demonstrated performance in the suit itselF). Respectfully, Plaintiffs' counsel are adequate.
In light of this testimony, Plaintiffs are clearly adequate.
With respect to the second inquiry under Fed. R. Civ. P. 23(a)(4), Plaintiffs' counsel are
qualified, experienced and generally able to conduct the proposed litigation. As the firm resumes
evidence, each ofthe Plaintiffs' attorneys have extensive experience successfully litigating complex
class actions and other complex litigation in federal and state courts across the country. See Exhibits X,
Y, Z, AA. Their experience includes numerous cases in the areas of consumer protection. Indeed,
monitor the on-goings of the case, which I have done consistently, [a]nd if it goes to trial, I will be
required to participate in trial.) (Exhibit V at 38:25-39:19).
Similarly, Plaintiff Spears testified that he read and reviewed the complaint before it was filed
(Exhibit Wat 69:10-21; 77:6-8) and routinely consulted with his lawyers about the case (''two times a
month and then it depends on if! have an issue or questions, I call them") (Exhibit W at 28:11-16). Mr.
Spears was involved with the decision to prosecute this matter on behalf of a class (Exhibit W at 34:20
to 35:1) and understood his duties as a class representative ("to obtain legal counseling", "to participate
in deposition," "to monitor [the litigation]," and to be willing ready and able to go to trial)( Exhibit W
at 33:2-34:15; 40:5-10; 41:4-16).
v.
THE REQUIREMENTS OF RULE 23(b)(3) ARE SATISFIED
. Federal Rule of Civil Procedure 23(b)(3) has two requirements: (1) predominance of common
questions oflawor fact over questions affecting only individual members, and (2) superiority of a class
action to other available methods for the fair and efficient adjudication ofthe controversy.
The elements ofthe claims of Plaintiff and the alleged class are subject to adjudication by
common, generalized evidence and, therefore, predominance is satisfied. Predominance does not
16
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Examination of the claims at issue shows that Rule 23(bX3) predominance is met here.
As the Supreme Court noted in Amchem, "Predominance is a test readily met in certain cases
The determination, however, must not be based upon whether individualized damages determinations
will be necessary. Instead, the focus is on the "legal or factual questioris that qualify each class
Case No.: 5:08-CV-00868 (RMW)
F3d 1227 (9th Cir. 1996).
Courts generally focus on the issue of the defendants' liability in deciding whether the
"predominance" standard is met, and if the liability is common to the class. Blackie, 524 F.2d at 902;
In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig., 122 F.R.D. 251,256 (C.D..
Cal. 1988) (where plaintiff alleges common nucleus ofmisrepresentations, common questions
17
alleging consumer or securities fraud or violations of the antitrust laws." Id. at 625. Thus, determining
whether common questions predominate on any of the asserted class claims requires an analysis of the
elements ofthose claims. Plascencia v. Lending 1st Mortg., 259 F.R.D. 437,446 (N.D. Cal. 2009).
demand that the common issues be identical so long as there is an essential common factual link
between all class members and the defendant for which the law provides a remedy. In re Wells Fargo
Home Mortg. Overtime Pay Litigation, 527 F. Supp. 2d 1053, 1065 (N.D. Cal. 2007), citing Local Joint
Executive Bd ofCulinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F3d 1152, 1162 (9th
Cir. 2001). The predominance inquiry tests whether proposed class is sufficiently cohesive to warrant
adjudication by representation. Anichem, 521 U.S. at 623. The inquiry trains on the legal or factual
questions that qualify each class member's case as a genuine controversy.Id
A. Rule 23{b)(3) - Common Questions of Law and Fact Predominate
"The Rille 23(b)(3) predominance inquiry tests whether the proposed classes are sufficiently
cohesive to warrant adjudication by representation." Visa Checks/MasterMoney, 280 F.3d 124, 136.
This criteria is normally satisfied when there is an essential common factua11ink between all class
members and the defendant for which the law provides a remedy. Valentino v. Carter-Wallace, Inc., 97
member's case as a genuine controversy." Wixon, 2009 WL 3353445 at * 7. A single common issue
may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining
individual questions." Olson v. Tesoro Refining and Mktg, 2007 WL 2703053, *6 (W.D. Wash. 2007)
(citing treatise).
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1 predominate over any purported differences between individual class members with respect to damages,
2 causation and reliance). Such an inquiry is particularly cogent in this case because the principal focus
3 of the alleged RESPA violation is the relationship between EA and WMB. Plaintiffs will seek to prove
4 the existence ofa conspiratorial agreement whereby in exchange for WMB's appraisal business, EA
5 rendered appraisals that would support the value of the loans that WMB sought to issue, regardless of
6 the true value of the properties. Plaintiffs need to prove this case only once by demonstrating such an
7 agreement
S As set forth above, all the factual issues necessary to resolve Plaintiffs' dispute are common
9 issues that can be proven on a class-wide basis. Plaintiffs' and Class members' claims emanate from a
10 common course ofmisconduct by Defendants. These questions need only be answered once. Courts
11 have routinely held that where, as here, plaintiffs allege a common course of conduct of
12 misrepresentations, omissions, and other wrongdoing that allegedly affect all the class members in the
13 same or similar manner, that those questions will predominate over any individual questions. Blackie,
14 524 F.2d 891, 905-08.
15 Pursuant to Rule 23(b)(3), Plaintiffs seek to certify a class on a single cause of action under
16 RESPA 2607(a). Plaintiffs allege EA and WMB engaged in a civil conspiracy, the result of which is a
17 violation ofRESPA 2607(a).
18 The elements of civil conspiracy are: (1) the formation and operation of a conspiracy, (2) a
19 wrongful act committed in furtherance ofthe conspiracy, and (3) damages resulting from the wrongful
20 act Wasco Prods. v. Southwall Teehs., Inc., 2006 U.S. App. LEXIS 816 (9th Cir. Cal. 2006).
21 RESj>A 2607(a) states: "No person shall give and no person shall accept any fee, kickback, or
22 thing ofvalue pursuant to any agreement or understanding, oral or otherwise, that business incident to
23 or a part of a real estate settlement service involving a federally related mortgage loan shall be referred
24 . to any person." To prove a violation of 2607(a) Plaintiffs will need to show: (1) a thing of value; (2)
25 exchanged pursuant to an agreement or understanding; (3) which was part of a real estate settlement
26 service involving a federally related mortgage loan.
27 Eachone ofthese inquiries is subject to common proof and need only be answered once.
28
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18
values. See Supra at 4-10. Although class certification is not an inquiry into the merits (See, e.g.,
1. Formation and Operation of a Conspiracy
Blaclde v. Barrack, 524 F.2d 891,901 n.17 (9th Cir. 1975), Plaintiffs have already presented material
. .
evidence supporting their claim regarding the existence ofa conspiratorial agreement and its
implementation, which Plaintiffs fully expects to further bolster once merits discovery begins.
1
Case No:: 5:08-CV-00868 (RMW)
Plaintiffs have alleged and provided underlying documents supporting the existence and
implementation ofan agreement between EA and WMB whereby in exchange for a significant portion
of WMB's residential appraisal business, EA would render appraisals that would support the value of
the loans WMB wanted to issue, regardless of whether there was independent justification for such
U.S. Dist. LEXIS 76008 (W.D. Tenn. 2008) )(certified claim ofcivil conspiracy to be remedied under a
theory ofconstructive trust finding whether Defendants "knowingly engaged in a scheme to deprive
Plaintiffs ofthe '629 Patent's profits andwhether that conduct warrants an award of punitive damages"
was common to the class); Jerry Enterprises ofGloucester County, Inc. v. Allied Beverage Group,
L.L.C., 178 F.RD. 437, 442 (D. N.J. 1998), citing 4 Herbert B. Newberg & Alba Conte, Newberg on
Class Actions 18.25 at 18-81 (3d ed. 1992); Oregon Laborers-Employers Health & Welfare Trust
Fund v. Philip Morris, 188 F.RD. 365 (D. Or. 1998); 7AA Wright & Miller 1781 ("In general, a
determination that the conspiracy issue is common to all the class members and predominates over any
individual issues presents few problems."). This includes claims for violations of Section 8(a) of
RESPA. See, e.g., Robinson v. Fountainhead Title Group Corp., 252 F.R.D. 275 (D. Md.
For the purpose of this class certification motion, however, the critical inquiry regarding the
existence and implementation ofa conspiratorial agreement will focus on the defendant's conduct and
not require any kind of individualized inquiry. Conspiracies plead in the fashion ofthe one at the case at
bar - a common course ofconduct that effected all putative class members - routinely withstand
scrutiny under Fed. RCiv. P 23(b)(3) and are certified. See also In re Scrap Metal Antitrust Litigation,
527 F.3d 517, 535 (6
th
Cir. 2008); In re TFT-LCD (Flat Panel) Antitrust Litigation, -- F.R.D. --, 2010
WL 1286478, *24 (N.D. Ca., March 28, 2010); In re Static Random Access Memory Antitrust Litig.,
2009 U.s. Dist. LEXIS 110407,59-60 (N.D. Cal. Nov. 25, 2009); Boynton v. Headwaters, Inc., 2008
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2008)(certifying a Section 8(a) claim for "homeowners charged fees for title work through a sham
entity as part of an illegal kickback scheme").
2. Wrongful Act Committed In Furtherance Of The Conspiracy
Plaintiffs have already provided great detail of the nature of the conspiratorial conduct at issue
in this case. See Sections I and II, supra. It resulted in the issuance of 260,000 tainted appraisals to
Plaintiffs and the Class. Exhibit R at 4.
3. Damages Resulting From The Wrongful Act
Civil conspiracy is not an actionable cause of action in and of itself. Grisham v. Philip Morris
U.S.A., 2005 U.S. App. LEXIS 4956, 10-11 (9th Cir. Cal. 2005) quoting AppliedEquip. Corp. v. Litton
Saudi Arabia Ltd., 7 Cal. 4th 503,510-11,28 Cal. Rptr. 2d 475,869 P.2d 454 (l994)(holding that there
is no separate cause ofaction for civil conspiracy). Ultimately, it will require the pleading and proof of
another substantive claim, here a violation ofRESPA 8(a), 12 U.S.C. 2607(a). The damages that
ensue from the scheme alleged in the complaint are derived from the statutory damage provision under
RESPA.
This Court has already determined that the alleged tainted, sham-appraisals are a "thing of
value" within the meaning 2607(a) (Order dated March 9,2009 at 4-5; Order dated August 30,2009 at
6; Order dated January 8, 2010 at 4-5). This Court also embraced the reasoning set forth in Carter v.
Welles-Bowen Realty, Inc., 553 F.3d 979, 986 (6th Cir. 2009) and Alston v. Countrywide Financial
Corp., 585 F.3d 753, 759-62 (3
rd
Cir. 2009), wherein after considering the text and purpose of the
statute, the legislative history, and seeking the advice of the Department of Housing and Urban
Development, the court concluded that "the plain meaning ofthe statutory language and the persuasive
authorities examined by the court indicate that Congress created a private right of action to impose
damages where kickbacks and unearned fees have occurred - even when there is no overcharge." Id at
986- 86. Order dated August 30, 2009 at 5.
7
On these authorities, this Court concluded that that "the
7 "RESPA allows individuals to police the marketplace in order to ensure impartiality of referrals and
competition between settlement service providers, thereby creating a market-wide deterrent against
unnecessarily high settlement costs." Capell, 2007 U.S. Dist. LEXIS 82570,2007 WL 3342389, at *5
(emphasis added). Ultimately, U[t]he purpose ofthe statute is to prevent certain practices that are
Case No.: 5:08-CV-00868 (RMW)
1 intent of Congress is clear," Plaintiffs have standing to bring claims under 2607(a) by virtue of
2 .receiving appraisals done under the tainted process created by EA' s and WMB' s scheme, and they are
persons who violate the prohibition or limitations ofthis section shall be jointly and severally liable to
the person or persons charged for the settlement service involved in the violation in an amount equal to
three times the amount of any charge paid for such settlement service." 12 U.S.C. 2607(d)(2). As this
Court has noted, the focus of section 8(d)(2) is on whether there is a Section 8 violation - not on
hannful to all consumers by establishing that consumers have a right not to be subject to those practices
and providing both public and private remedies ofthat right." Kahrer v. Ameriquest Mortg. Co., 418 F.
Supp. 2d 748, 756 (W.D. Pa. 2006) (quoting Patton, No. CV 100-132, at *5-6, 12). Carter v. Welles-
Bowen Realty, Inc., 553 F.3d 979, 988 (6th Crr. Ohio 2009)
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Case No.: 5:08-CV-00868 (RMW)
not required to prove their appraisals were inflated to have standing for this RESPA violation. Order
dated January 8, 2010 at 4, citing Alston v. Countrywide Financial Corp., 585 F.3d 753, 759-62 (3
rd
Cir.
2009); Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979,986-88 (6
th
Cir. 2009). See also Order dated
August 30, 2009 at 5. Where a violation of Section 8(a) ofRESPA (12 U.S.C. 2607(a) occurs, the
plain language ofthe RESPA statute provides that defendants are liable to the "person or persons
charged for the settlement service involved in the violation for an amount equal to three times the
amount ofany charge paid for such settlement service." 2607(d)(2).
Here, Plaintiffs and the class allege that they have been injured by the deprivation ofa right
conferred by RESPA. The statute creates an individual right to receive referral services untainted by an
agreement made in violation of 2607(a). By its plain terms, RESPA section 8(d)(2) creates a private
right of action for a consumer when his settlement service provider violates section 8(a) "Any person or
whether the person charged for the settlement service involved in the violation has been overcharged or
in this case had inflated values in their appraisal. Order dated January 8, 2010 at 4. RESPA provides a
statutory remedy of"three times the amount ofany charge paid for such settlement service."
2607(d)(2). The amount charged every consumer necessary for this calculation is readily available
from EA's records as well as the HUD-l statements at line 803 which are required to be maintained by
the lender for all loans. In re United Energy Corp. Solar Power Modules Tax Shelter Inv. Sec. Litig.,
122 F.R.n. 251,256 (c.n. Cal. 1988) (where plaintiff alleges common nucleus of misrepresentations,
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common questions predominate over any purported differences between individual class members with
respect to damages).
4. Agreement or Understanding.
"Section 8(a)'s prohibition against the paYment of formal kickbacks or fees for the
referral of business... does not require establishment ofan overcharge to the
consumer. Section 8(a) simply prohibits the paYment of fees pursuant to any
agreement or understanding for the referral of settlement services. 12 U.S.C.
2607(a). Thus, a factual issue common to the proposed class exists as to whether
[Defendant][] entered into and executed the type of referral agreement which could
violate section 8(a).
Benway v. Res. Real Estate Servs., LLC, 239 F.R.D. 419,425 (D. Md. 2006).
5. A Thing Of Value
22
As demonstrated above, (See Section II), Plaintiff has evidence tending to show, and will
provide additional evidence establishing the existence of the conspiracy. Analytically, proving the first
element of a conspiracy -- "the formation and operation of a conspiracy" and the second element of
RESPA 2607(a) violation are coextensive. Ultimately, if Plaintiff is able to prove the conspiracy, the
violation ofRESPA will flow there-from, without a transaction by transaction analysis ofany given
appraisal. Under these circumstances, the predominance requirement of Fed.R.Civ.P 23(b)(3) is clearly
met.
Case No.: (RMW)
The question ofwhether the appraisals as alleged here qualified as a thing of value under
RESPA was addressed by this Court on three different occasions - each time with the same result.
"Here plaintiffs argue that the inflated appraisals constituted 'things of value' because they allowed
WMB to sell the loans in higher volume to financial institutions at higher Fces." The Court explained:
"[a]s alleged, this is the kind of quid-pro-quo benefit in return for a referral that 2607 (a)'s
proscription of kickbacks is meant to reach. Indeed, the language ofthe statute, encompassing all
benefits constituting a 'thing of value,' and the interpreting regulation, seem to include a wide variety
of benefits that could be received in return for business referrals. The court therefore finds that the
alleged inflated appraisals fall within 2607(a). Order dated March 9, 2009 at 5; Order dated August
30,2009 at 6; Order dated January 8, 2010 at 4-5.
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6. Real Estate Settlement Senrice Involving A Federally Related Mortgage Loan
Each ofthe Plaintiffs and class members' loans were issued pursuant to a federally related
mortgage loan as evidenced by its denotation on a HUD-I. See e.g. Exhibit BB. Moreover, RESPA
specifically identifies appraisals as "settlement services" within the meaning ofRESPA. See 12 U.S.C.
2602(3) ("any service provided in connection with a real estate settlement" including, but not limited
to, title searches, title insurance, attorney services, appraisals, credit reports, pest and fungus
inspections, real estate agent or broker services, loan processing," etc. (emphasis added)). See also,
Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979,986 (6th Cir. 2009).
B. Rule 23(b)(3) - A Class Action is Superior to Individual Actions
Rule 23(b)(3) also requires that the Court determine whether "a class action is superior to other
available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).
Rule 23(b)(3) provides the following nonexclusive factors to guide the Court in determining
"superiority":
(A) the interest ofmembers of the class in individually controlling the
prosecution ... of separate actions; (B) the extent and nature ofany
litigation concerning the controversy already commenced by ... members
ofthe class; (C) the desirability ... of concentrating the litigation of the
claims in the particular forum; (0) the difficulties likely to be
encountered in the management ofa class action.
Id
In considering superiority, a court will generally balance in terms of fairness and efficiency, the
merits ofa class action against alternative methods of adjudication to determine if a class action is
superior. Gete v. IN.S., 121 F.3d 1285, 1299 (9th Cir. 1997).
1. Rule 23(b)(3)(A)
The first factor (the interest of each class member in controlling the prosecution of separate
actions) supports the superiority ofa class action in the underlying matter. Fed. R. Civ. P. 23(b)(3)(A).
In a case with thousands ofclass members (or more), each class member's interest in having the claims
ofthe .class aggregated in a single class action lawsuit substantially outweighs the interest of a class
member in individual control ofthe litigation. See, e.g., Carnegie v. Household Int'l, Inc., 376 F.3d
Case No.: 5:08-eV-00868 (RMW)
2. Rule 23(b)(3)(B)
3. Rule 23(b)(3)(C)
the class) also supports the conclusion that a class action is the superior method for the resolution of the
claims in the Complaint. West v. Circle K Stores, Inc., No. Civ. S-04-0438WBS GGH, 2006 U.S. Dist.
4
Plaintiffs' Counsel are not aware of any pending litigation in which the claims at issue in this
case are being separately pursued by any other putative class members. As a result, the second factor
(the extent and nature of any litigation concerning the controversy already commenced by members of
656,661 (7th Cir. 2004) ("The more claimants there are, the more likely a class a'?tion is to yield
substantial economies in litigation").
In the pending litigation, the amount of each Class member's individual claims is relatively
small making individual litigation impracticable. See, e.g., SAC ~ 6 0 (Scholl paid $255.00 for her EA
appraisal); ~ 6 5 (Spears paid $361.00 for his EA appraisal). As the Supreme Court has observed, class
actions permit plaintiffs to pool claims which would be uneconomical to litigate individually, and "most
of the plaintiffs would have no realistic day in court if a class actionwere not available." Phillips
Petroleum Co. v. Shutts, 472 U.S. 797,809, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985). See, e.g., In re
Worldcom Inc. Sec. Litig., 219 F.R.D. 267, 304 (S.D.N.Y. 2003) ("Few individuals could even
contemplate proceeding with this litigation in any context other than through their participation in a
class action, given the expense and burden that such litigation would entail").
LEXIS 42074, at *26 (E.D. Cal. June 12,2006) ("In the absence of competing lawsuits, it is also
unlikely that other individuals have an interest in controlling the prosecution ofthis action ... ").
. 4. Rule 23(b)(3)(D) . .
Finally, an analysis of the fourth factor (the difficulties that are likely to be encountered 10 the
management ofa class action) confinns the superiority ofthe class mechanismto adjudicate this
controversy. Fed. R. Civ. P. 23(b)(3)(D).
Case No.: 5:08-CV-00868 (RMW)
Consideration ofthe third factor (the desirability of concentrating the litigation ofthe claims in
the particular forum) further demonstrates that a class action is superior. EA is a California corporation
with its principle place of business in California and operates throughout the State of California,
making this forum a logical and appropriate place to litigate this matter.
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1 There is no reason to believe that the prosecution ofthe claims of the putative class members in
2 a single class action will create more management problems than the alternative (i.e., the prosecution of
3 thousands of separate lawsuits by each class member). Significantly, it is proper for a court, in deciding
4 the "best" available method, to consider the "inability of the poor or uninformed to enforce their rights,
5 and the improbability that large numbers of class members would possess the initiative to litigate
6 individually." Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974). Here, the
7 class consists oftens of thousands of residential borrowers asserting relatively small claims with no
8 other reasonable means ofenforcing their rights. Given the commonality established above, the
9 adjudication of class claims would not be significantly more burdensome than ifthe matter were
10 prosecuted individually. To the contrary, it would be much more burdensome on the courts, parties and
11 judicial system to entertain a multiplicity oflawsuits regarding EA's common conduct. It is well
12 accepted that "a class action has to be unwieldy indeed before it can be pronounced an inferior
13 alternative ... to no litigation at all." Carnegie v. Household Int'l. Inc., 376 F.3d 656,661.
14 VisaCheckiMasterMoney, 280F.3d 124, 140 (the mere possibility ofcomplexity or unmanageability
15 does not defeat a class action.).
16 Accordingly, prosecuting the case at bar as a class action does not present any difficulties within
17 the meaning of Rule 23(b)(3)(D), and theClass mechanism is clearly the superior vehicle by which to
18 adjudicate this controversy.
19 VI. CONCLUSION
20 For the reasons discussed herein, Plaintiffs respectfully request the Court certify this case as
21 class action, appoint them as class representatives, and appoint their attorneys as counsel for the class.
22 DATED: May 7, 2010
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Case No.: 5:08-eV-00868 (RMW)
2
Respectfully Submitted,
By: s/Michael D. Braun
Michael D. Braun
10680 W. Pico BoUlevard, Suite 280
Phone: (310) 836-6000
Fax: (310) 836-6010
Certification and Memorandum in Support -
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ORDER DENYING PLAINTIFFS' MOTION TO INTERVENE; GRANTING LSI'S MOTION TO DISMISS; GRANTING IN PART
AND DENYING IN PART EA'S MOTION TO DISMISS No. C-08-00868 RMW
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E-FILED on 08/30/09
SAN JOSE DIVISION
Plaintiffs,
v.
WASHINGTON MUTUAL, INC., a
Washington corporation; FIRST AMERICAN
EAPPRAISEIT, a Delaware corporation; and
LENDERS SERVICES, INC.,
Defendants.
No. C-08-00868 RMW
ORDER DENYING PLAINTIFFS' MOTION
TO INTERVENE; GRANTING LSI'S
MOTION TO DISMISS; GRANTING IN
PART AND DENYING IN PART EA'S
MOTION TO DISMISS
[Re Docket Nos. 150, 155, 156, 162]
Plaintiffs bring this suit alleging that defendant-appraisers participated in a scheme to
provide home-loan mortgage borrowers with inflated appraisals of the property they sought to
purchase. On March 9, 2009, this court granted, with leave to amend, defendant Lender's Service,
Inc.'s ("LSI") motion to dismiss on the basis that Sidney Scholl ("Scholl") had failed to establish
standing to sue LSI. The court also granted in part and denied in part, again with leave to amend,
plaintiff First American eAppraiseIT's ("EA") motion to dismiss. Plaintiffs have filed a Second
Amended Complaint ("SAC"), adding proposed intervenors Juan and Carmen Bencosme ("the
Bencosmes") as plaintiffs. The Bencosmes now move to intervene, contending that they have
standing against LSI. LSI opposes the motion to intervene and moves to dismiss the SAC. EA also
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moves to dismiss the SAC, and plaintiffs move in response to strike portions of EA's motion to
dismiss. For the reasons stated below, the court denies the Bencosme's motion to intervene, grants
LSI's motion to dismiss, grants in part and denies in part EA's motion to dismiss, and denies
plaintiffs' motion to strike.
I. BACKGROUND
Plaintiffs bring this class action on behalf of all consumers in California who received home
loans from WMB on or after June 1, 2006 with appraisals obtained through EA or LSI. According
to the SAC, home purchases in the United States have traditionally been financed through a third-
party lender who retains a security interest in the property until the loan is repaid. SAC 2. In
order to ensure that the secured lender will recoup the value of the loan if the borrower defaults, the
lender generally requires that the property be professionally appraised. Id. Plaintiffs allege that in
June of 2006 Washington Mutual Bank ("WMB"), with EA and LSI, began a scheme to inflate the
appraised values of homes receiving loans in order to sell the aggregated security interests in the
financial markets at inflated prices. Id. at 6. According to the complaint, banks like WMB
changed from a business model in which they held the mortgage loans until repaid to one where they
sold the loans to financial institutions. Id. at 23. This "paradigm shift" created an incentive for the
bank to seek higher appraisals in higher volume. Id. at 24.
The complaint describes a scheme in which WMB allegedly conspired to inflate the
appraised value of property underlying their mortgage loans. In 2006 WMB retained EA and LSI to
administer WMB's appraisal program. Id. at 34. EA and LSI have since performed almost all of
WMB's appraisals, and WMB's borrowers have become EA and LSI's largest source of business. Id.
at 36. WMB created a list of "preferred appraisers," selected by WMB's origination staff, that it
requested to perform appraisals for WMB borrowers. Id. at 37, 45. WMB also maintained the
contractual right with those appraisers to challenge an appraisal by requesting a "reconsideration of
value" (which was known as an "ROV"). Id. at 39. WMB would use the ROV to get EA and LSI
to increase the appraisal value of property. Id. WMB also requested that EA and LSI hire
"Appraisal Business Managers," who were given authority to override the values determined by
third-party appraisers. Id. at 40.
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1
Plaintiffs include the previously dismissed claims for violation of RESPA, California Business and
Professions Code 17200 and California's Consumer Legal Remedies Act ("CLRA") in the SAC
"solely to preserve Plaintiffs' right to appeal [their] dismissal." SAC 28, 30, 34, 36, 38, 49.
JAS 3
Plaintiffs claim that the above conduct violates the Real Estate Settlement Practices Act
("RESPA") and constitutes a breach of contract.
1
The Bencosmes now move to intervene as
plaintiffs. EA and LSI move separately to dismiss the SAC brought by Spears and Scholl,
respectively. Finally, plaintiffs move to strike that portion of EA's motion to dismiss that concerns
matter already covered in this court's March 9, 2009 order on defendants' motions to dismiss.
II. ANALYSIS
A. The Bencosmes' Motion to Intervene
The Bencosmes move to intervene in this action, apparently seeking to preserve the action in
light of this court's March 9, 2009 order concluding that the FAC did not adequately allege facts
showing that plaintiff Scholl had standing to sue LSI. But, as plaintiffs appear to concede,
intervention is only possible if a named plaintiff presently has standing to sue LSI. See Lierboe v.
State Farm Mutual Automobile Ins. Co., 350 F.3d 1018 (9th Cir. 2003); Pls.' Reply ISO Mot. to
Intervene 6 (stating that plaintiffs are "cognizant of the Ninth's Circuit's holding in Lierboe that the
original plaintiff must have standing . . ."). In Lierboe, the Ninth Circuit considered whether, when
a named plaintiff was found to lack standing, "it may be possible that the suit can proceed as a class
action with another representative . . . ." 350 F.3d at 1023. The court concluded that "because this is
not a mootness case, in which substitution or intervention might have been possible, we remand this
case to the district court with instructions to dismiss." Id. The Bencosmes, then, may not intervene
unless plaintiffs can show that a named plaintiff presently has standing to sue LSI. See also In re
Exodus Comm. Sec. Litig., 2006 WL 2355071, *1 (N.D.Cal. 2006) (denying motion to intervene
because named plaintiff lacked standing); Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir. 1998)
(affirming dismissal of class action where named plaintiffs lacked standing; rejecting argument that
other class members should be named as representatives).
Plaintiffs contend that the Bencosmes should be permitted to intervene because the SAC
adequately alleges a conspiracy between LSI, EA, and WMB. In its March 9, 2009 order dismissing
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the First Amended Complaint ("FAC"), the court wrote that the complaint describes "two parallel
conspiracies; one between EA and WMB, and another between LSI and [WMB]. There does not
appear to be a sufficient allegation that EA and LSI had an agreement. Plaintiffs have thus failed to
establish standing, either directly or as a result of a conspiracy, to sue LSI." Spears v. Washington
Mut., Inc., 2009 WL 605835, *2 (N.D.Cal. 2009). As defendants point out, the paragraphs of the
complaint that plaintiffs cite in support of their claim that LSI, EA, and WMB were co-conspirators
are largely unchanged in the SAC. See LSI's Reply ISO Mot. to Dismiss 3-4 (comparison of
paragraphs attached as Ex. A). Nothing in the minor revisions to the allegations in the complaint
adequately alleges that a conspiracy including both EA and LSI exists. The court concludes that
plaintiff Scholl still lacks standing to sue LSI. The Bencosmes are therefore not entitled to
intervene. In their reply, plaintiffs request jurisdictional discovery to establish that a conspiracy
exists. District courts in the Ninth Circuit, following the law of other circuits, have required that
plaintiffs make a "colorable" showing of jurisdiction in order to justify jurisdictional discovery.
Miltan v. Feeney, 497 F.Supp. 2d 1113, 1119 (C.D.Cal. 2007) (citing Central States, S.E. & S.W.
Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir.2000)). This
"colorable" showing could be understood as "requiring the plaintiff to come forward with 'some
evidence' tending to establish" jurisdiction over the defendant. Id.
In support of the request for jurisdictional discovery, the SAC alleges that EA and LSI
participated together on conference calls and apparently adopted WMB's appraiser assigning
process. SAC 44, 54. Additionally, the form report submitted for Scholl's appraisal lists an LSI
email address. Id. Ex. 2 at 5. These facts alone, while they may show that EA and LSI knew about
the other's relationship with WMB, they do not show a conspiratorial agreement between EA and
LSI. See Wasco Products v. Southwall Technologies, Inc., 435 F.3d 989, 992 (9th Cir. 2006). The
provided facts are not sufficient to warrant jurisdictional discovery on the basis of an EA-LSI
conspiracy. Plaintiffs' request for jurisdictional discovery is therefore denied.
B. LSI's Motion to Dismiss
Because the court denies the Bencosmes' motion to intervene, it does not reach LSI's motion
to dismiss the Bencosmes' claims on the merits. As stated in Section A above, plaintiffs do not have
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standing to sue LSI. Therefore, the SAC is dismissed as to LSI without leave to amend. Plaintiffs
essentially repeated the allegations of standing from the FAC, and they therefore appear to have no
additional facts to plead.
C. EA's Motion to Dismiss
EA moves to dismiss the SAC, arguing that the SAC 1) fails to state a claim under RESPA;
2) fails to state a claim for breach of contract; and 3) that the breach of contract claim is preempted
by Home Owner's Loan Act ("HOLA"). Because some of EA's arguments were considered by the
court and rejected in the court's March 9, 2009 order, plaintiffs move to strike the repeated
arguments in the motion to dismiss. The court finds the motion to strike of little practical import,
and will therefore deny it and proceed to consider the merits of EA's motion to dismiss. The court
will, however, treat repeated arguments only briefly when there is no basis to revise a previous
conclusion.
1. Standing Under RESPA
EA first argues that the RESPA claim should be dismissed because plaintiffs lack standing to
sue under RESPA because they do not allege that they were charged an above-market rate for the
appraisals (an "overcharge"). EA's Mot. To Dismiss 6. Although this argument was brought up at
argument in the previous motion to dismiss, the court did not discuss in its March 9, 2009 order
whether plaintiffs must allege an overcharge to have standing under 2607.
In Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979 (6th Cir. 2009), the only court of
appeals decision to consider the question, the court sought to resolve a division in district courts
over whether an overcharge is necessary for standing under 2607. Id. at 984. After considering
the text and purpose of the statute, the legislative history, and seeking the advice of the Department
of Housing and Urban Development ("HUD") (the agency charged with administering RESPA), the
court concluded that "the plain meaning of the statutory language and the persuasive authorities
examined by the court indicate that Congress created a private right of action to impose damages
where kickbacks and unearned fees have occurred even when there is no overcharge." Id. at 986-
86. This court finds Carter's analysis sound, and concludes that plaintiffs have standing to sue
under 2607.
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2. Failure to State a Claim Under RESPA
EA repeats the argument from its previous motion to dismiss that plaintiffs have not alleged
that EA gave a "thing of value" in return for a referral, and therefore cannot state a claim under
2607(a). EA also argues that, even if the transfer of a thing of value is alleged, the safe-harbor
provision in 2706(c)(2) defeats plaintiffs' claim. The court considered EA's arguments, including
the case of Cedeno v. IndyMac Bancorp, Inc., 2008 WL 3992304 (S.D.N.Y. 2008), in its March 9,
2009 order on the previous motions to dismiss. See Spears, 2009 WL 605835, *3-*4. The court
again concludes that plaintiffs have sufficiently alleged that the allegedly inflated appraisals
provided by EA constituted a "thing of value" under RESPA and its supporting regulations, and that
the safe-harbor provision in 2706(c)(2) does not apply. See id.
EA also argues that no "referral" has occurred, and therefore that plaintiffs cannot state a
claim for violation of RESPA. Under 24 C.F.R. 3500.14(f), a "referral" occurs in two
circumstances:
(1) A referral includes any oral or written action directed to a person which has the
effect of affirmatively influencing the selection by any person of a provider of a
settlement service or business incident to or part of a settlement service when such
person will pay for such settlement service or business incident thereto or pay a
charge attributable in whole or in part to such settlement service or business.
(2) A referral also occurs whenever a person paying for a settlement service or
business incident thereto is required to use (see 3500.2, "required use") a particular
provider of a settlement service or business incident thereto.
EA contends that under these regulations referrals only occur, and 2607(a) only applies, where the
borrowers themselves have the power to select the settlement service provider or where they are
required to use a designated provider. EA's Mot. to Dismiss 10. The court agrees that
3500.14(f)(1) does not appear to apply here because plaintiffs did not have the power to select an
appraiser. But EA's argument that plaintiffs were not "required to use" a particular appraiser, despite
the fact that WMB chose the appraiser for them, makes little sense. Plaintiffs allege that the
appraisers were selected by WMB and the appraisals were procured for use in evaluating the loan
collateral. See SAC 6, 60, 65. This falls within the plain scope of 3500.14(f)(2). Plaintiffs
have alleged a "referral" under RESPA.
3. Breach of Contract Claim
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JAS 7
The court previously dismissed plaintiffs' claims for breach of contract for failure to state a
claim, concluding that the FAC alleged neither the existence of a contract between Spears and EA,
nor that an agency relationship existed between WMB and Spears. Spears, 2009 WL 605835, *6.
The court additionally concluded that the FAC did not provide enough detail as to the substance of
the contract claims to determine whether they would be preempted under HOLA. Id. The SAC does
not remedy the pleading deficits in the original complaint. Moreover, the breach of contract claim is
preempted by federal law.
The SAC alleges that the appraisal reports constitute evidence of a contract between WMB
and the appraisers, and that WMB acted as plaintiffs' agent in entering into that contract. But the
appraisal reports merely reflect that an appraisal was performed; not that they were performed
pursuant to a contract. The appraisal reports do indeed state the appraisals were performed in
compliance with applicable law (SAC 129), but such a statement does not constitute a contractual
obligation. Plaintiffs claim for breach of contract is therefore subject to dismissal.
In its March 9, 2009 order, the court described law regarding the preemption of state-law
claims under HOLA as follows: The Office of Thrift Supervision ("OTS") promulgated a
preemption regulation in 12 C.F.R. 560.2 explicitly occupying the field of lending regulation for
federal savings associations:
To enhance safety and soundness and to enable federal savings associations to
conduct their operations in accordance with best practices (by efficiently delivering
low-cost credit to the public free from undue regulatory duplication and burden),
OTS hereby occupies the entire field of lending regulation for federal savings
associations. OTS intends to give federal savings associations maximum flexibility to
exercise their lending powers in accordance with a uniform federal scheme of
regulation.
12 C.F.R. 560.2(a). After the above general field-preemption provision, 560.2(b) enumerates,
though "without limitation," thirteen particular types of state laws that are explicitly preempted.
These include, relevant here, state laws purporting to impose requirements regarding loan related
fees (12 C.F.R. 560.2(b)(5)), and processing, origination, servicing, sale or purchase of, or
investment or participation in, mortgages (12 C.F.R. 560.2(b)(10)). 560.2(c) identifies state laws
that are not preempted, listing some state laws of general application and providing that they are not
preempted "to the extent they only incidentally affect the lending operations of Federal savings
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JAS 8
associations . . . ." 12 C.F.R. 560.2(c). According to later OTS regulations, a court should first
inquire whether a particular state law falls within 560.2(b). Silvas v. E*Trade Mortgage Corp.,
514 F.3d 1001, 1005 (9th Cir. 2008)(quoting 61 Fed. Reg. 50951, 50966-50967 (Sept. 30, 1996)). If
it does, then the law is preempted. Id. If not, the next question is whether the law affects lending, in
which case the law is preempted unless the law can clearly be shown to fall within 560.2(c). Id.
Finally, 560.2(c) should be interpreted narrowly, and any doubt should be resolved in favor of
preemption. Id.
The court next concluded that plaintiffs claims for violation of the California's Unfair
Competition Law ("UCL") and Consumer Legal Remedies Act ("CLRA") were preempted because
those claims challenged the impartiality, objectivity, and independence of the appraisals that
plaintiffs received, which relate directly to the processing and origination of mortgages, and indeed
are required by federal regulations. Spears, 2009 WL 605835, *5-*6; See 12 C.F.R. 34, et sec.
(entitled "Real Estate Lending and Appraisals").
In the SAC, plaintiffs allege that "EA breached these contracts with Plaintiffs and each Class
member by not providing a home appraisal which was performed by an impartial, independent,
objective and unbiased appraiser, and by not providing appraisal reports that were credible,
unbiased, impartial, independent, without predetermined values and done in compliance with
USPAP standards." SAC 134. The complaint also alleges that EA breached the contracts by
violating other standards in the Uniform Standards of Professional Appraisal Practice ("USPAP"),
which is the basis for the preempted claims. Id. 135-136. As amended, plaintiffs' contract claim
is similar in substance to the UCL and CLRA claims. The contract claim therefore directly relates to
and affects lending, and does not fall within the exception provided for in 12 C.F.R. 560.2(c). The
court therefore concludes that plaintiffs claim for breach of contract is preempted by HOLA.
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JAS 9
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III. ORDER
For the reasons stated above, the court:
1. denies the Bencosmes' motion to intervene;
2. grants LSI's motion to dismiss;
3. grants EA's motion to dismiss plaintiffs' claim for breach of contract;
4. denies EA's motion to dismiss plaintiffs' claim for violation of 12 U.S.C. 2607(a).
5. denies plaintiffs' motion to strike.
DATED: 08/30/09
RONALD M. WHYTE
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JAS 10
Notice of this document has been electronically sent to:
Counsel for Plaintiff:
Ira Spiro Ira@SpiroMoss.com
Janet Lindner Spielberg jlspielberg@jlslp.com
Joseph N. Kravec , Jr. jnk@ssem.com
Michael David Braun service@braunlawgroup.com
James Mark Moore mark@spiromoss.com
Counsel for Receiver:
Jonathan Mark Lloyd jonathanlloyd@dwt.com
David A. Super david.super@bakerbotts.com
Ryan E. Bull Ryan.Bull@bakerbotts.com
Sam N. Dawood samdawood@dwt.com
Stephen M. Ng stephen.ng@bakerbotts.com
Counsel for Defendants:
Stephen Michael Rummage steverummage@dwt.com
Robert J. Pfister rpfister@stblaw.com
Martin L. Fineman martinfineman@dwt.com
Jeffrey D. Rotenberg jrotenberg@tpw.com
Kerry Ford Cunningham kerry.cunningham@dlapiper.com
Laura Jean Fowler lfowler@mhalaw.com
Patrick J. Smith psmith@tpw.com
Richard F. Hans rhans@tpw.com
Michael T. Fogarty tfogarty@mhalaw.com
Christopher J Clark cjclark@dl.com
Kevin C Wallace kwallace@dl.com
Kris Hue Chau Man kman@dl.com
Margaret Anne Keane mkeane@dl.com
Angela M. Papalaskaris apapalas@dl.com
Counsel are responsible for distributing copies of this document to co-counsel that have not
registered for e-filing under the court's CM/ECF program.
Dated: 08/30/09 JAS
Chambers of Judge Whyte
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ORDER GRANTING LSI'S MOTION TO DISMISS; ORDER GRANTING IN PART AND DENYING IN PART EA'S MOTION TO
DISMISS No. C-08-00868 RMW
JAS
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E-FILED on 03/09/09
SAN JOSE DIVISION
Plaintiffs,
v.
WASHINGTON MUTUAL, INC., a
Washington corporation; FIRST AMERICAN
EAPPRAISEIT, a Delaware corporation; and
LENDERS SERVICES, INC.,
Defendants.
No. C-08-00868 RMW
ORDER GRANTING LSI'S MOTION TO
DISMISS; ORDER GRANTING IN PART
AND DENYING IN PART EA'S MOTION TO
DISMISS
[Re Docket Nos. 42, 46, 48]
Plaintiffs Felton Spears ("Spears") and Sidney Scholl ("Scholl") bring this suit alleging that
defendants Washington Mutual Bank FA ("WMB"), First American eAppraiseIT ("EA"), and
Lender's Service, Inc. ("LSI") participated in a scheme to provide home-loan mortgage borrowers
with inflated appraisals of the property they sought to purchase. After the complaint was filed, the
Federal Deposit Insurance Corporation ("FDIC") was substituted as receiver for WMB, and
plaintiffs later stipulated to dismiss all claims against the FDIC. The court here considers EA and
LSI's pending motions to dismiss. For the reasons stated below, the court grants LSI's motion to
dismiss, and grants in part and denies in part EA's motion to dismiss. Leave to amend is granted to
state a claim against LSI and to assert a claim for breach of contract.
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I. BACKGROUND
Plaintiffs bring this class action on behalf of all consumers in California who received home
loans from WMB on or after June 1, 2006 with appraisals obtained through EA or LSI. According
to the first amended complaint, home purchases in the United States have traditionally been financed
through a third-party lender who retains a security interest in the property until the loan is repaid.
Complaint 2. In order to ensure that the secured lender will recoup the value of the loan if the
borrower defaults, the lender generally requires that the property be professionally appraised. Id.
Plaintiffs allege that in June of 2006 WMB, with EA and LSI, began a scheme to inflate the
appraised values of homes receiving loans in order to sell the aggregated security interests in the
financial markets at inflated prices. Id. at 6. According to the complaint, banks like WMB
changed from a business model in which they held the mortgage loans until repaid to one where they
sold the loans to financial institutions. Id. at 22. This "paradigm shift" created an incentive for the
bank to seek higher appraisals in higher volume. Id. at 23.
The complaint describes a scheme in which WMB allegedly conspired to inflate the
appraised value of property underlying their mortgage loans. In 2006 WMB retained EA and LSI to
administer WMB's appraisal program. Id. at 35. EA and LSI have since performed almost all of
WMB's appraisals, and WMB's borrowers have become EA and LSI's largest source of business. Id.
WMB created a list of "preferred appraisers," selected by WMB's origination staff, that it requested
to perform appraisals for WMB borrowers. Id. at 36, 44. WMB also maintained the contractual
right with those appraisers to challenge an appraisal by requesting a "reconsideration of value"
(which was known as an "ROV"). Id. at 38. WMB would use the ROV to get EA and LSI to
increase the appraisal value of property. Id. WMB also requested that EA and LSI hire "Appraisal
Business Managers," who were given authority to override the values determined by third-party
appraisers. Id. at 39.
Plaintiffs claim that the above conduct violates the Real Estate Settlement Practices Act
("RESPA"), California Business and Professions Code 17200, and California's Consumer Legal
Remedies Act ("CLRA"), and constitutes a breach of contract and results in unjust enrichment. EA
and LSI moved to dismiss on May 5, 2008. After the FDIC was appointed receiver for WMB, the
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parties stipulated to stay the case for 90 days. Plaintiffs have since voluntarily dismissed the claims
against WMB/FDIC. Now at issue are EA and LSIs motions to dismiss.
II. ANALYSIS
A. Standing as to LSI
LSI first argues that plaintiffs lack standing to bring suit against them because LSI had no
involvement with Spears' or Scholl's appraisal. In order to have standing to sue under Article III of
the Constitution, plaintiffs must show that 1) they suffered an injury in fact; 2) the injury is fairly
traceable to the challenged action of the defendant; and 3) it is likely that the injury will be redressed
by a favorable decision. Tyler v. Cuomo, 236 F.3d 1123, 1131-32 (9th Cir. 2000). In a class action,
standing is satisfied if at least one named plaintiff meets the requirements. See Armstrong v. Davis,
275 F.3d 849, 860 (9th Cir.2001).
LSI contends that plaintiffs' injury is not traceable to its conduct. LSI offers the affidavit of
Kathleen M. Rice, Executive Vice President of Appraisal Operations for LSI, which states that Rice
performed a search of LSI's records and found no evidence that the company had ever prepared or
completed an appraisal on behalf of Scholl or the property she purchased. Affidavit of Kathleen M
Rice 7-15. Plaintiffs respond that, on Scholl's appraisal form, the address
"lisstatus@lendersservice.com" appears in the Lender/Client contact information field. See
Affidavit of Joseph Kravec, ISO Pls' Opp'n to Def.'s Mot. to Dismiss, Ex. 2, pg. 7. Plaintiffs argue
that this email address belies LSI's statement that it had "no involvement" with the appraisals at
issue, and further point out that Rice's affidavit is carefully worded to state only that no appraisals
were "prepared" or "completed" for plaintiffs. These points are well-taken; the appearance of the
email address does suggest some involvement, and Rice's affidavit leaves some possibilities open.
But standing requires that a plaintiff establish that some injury in fact is fairly traceable to the
conduct of the defendant. Here plaintiffs' alleged injury arises out of EA and LSI incorrectly
appraising the property on which either took out a loan. Without more, the email address does not
establish that LSI influenced in any way the appraised value of Scholl's property. There is no claim
that LSI was involved with the appraisal of Spears' property.
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Plaintiffs next argue that LSI's role in the alleged conspiracy between WMB, EA, and LSI
makes the jurisdictional issue so intertwined with the merits that dismissal would be inappropriate at
this time. Pls.' Mem. ISO Opp'n to Mot. to Dismiss 10. Plaintiffs cite Augustine v. United States, in
which the Ninth Circuit deferred a jurisdictional ruling until relevant facts could be determined on a
merits motion or at trial. 704 F.2d 1074, 1077 (9th Cir. 1983). In Augustine, a dentist's alleged
negligence went both to the merits and to notice for the purposes of a jurisdictional filing
requirement. Id. at 1076. Here, plaintiffs argue that the merits of their conspiracy claim are
intertwined with traceability. In order to allege a civil conspiracy, plaintiffs must allege an
agreement to commit wrongful acts. Wasco Products v. Southwall Technologies, Inc., 435 F.3d 989,
992 (9th Cir. 2006). Plaintiffs characterize the conspiracy in their motions as among LSI, EA, and
WMB, but the complaint's allegations are more limited. The complaint describes what might be
described as two parallel conspiracies; one between EA and WMB, and another between LSI and
WB. See Compl. 99-110 (Third and Fourth Claims for Relief). There does not appear to be A
sufficient allegation that EA and LSI had an agreement. Plaintiffs have thus failed to establish
standing, either directly or as a result of a conspiracy, to sue LSI. LSI's motion to dismiss is
therefore granted with leave to amend.
B. RESPA Claims
Plaintiffs first claim for relief alleges that defendants violated two provisions of RESPA, 12
U.S.C. 2607(a) and 2607(b). Defendants argue that the complaint fails to state a claim under both
provisions. Under 2607(a), they argue that the alleged sham-appraisals are not a "thing of value"
under the statute. And under 2607(b), defendants claim that the only payment by plaintiffs was for
services actually performed.
2607(a), which generally prohibits payments for referrals, or "kickbacks," states that "[n]o
person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any
agreement or understanding, oral or otherwise, that business incident to or a part of a real estate
settlement service involving a federally related mortgage loan shall be referred to any person." The
Department of Housing and Urban Development ("HUD") has interpreted "thing of value" broadly.
HUD regulations state that:
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It includes, without limitation, monies, things, discounts, salaries, commissions, fees,
duplicate payments of a charge, stock, dividends, distributions of partnership profits,
franchise royalties, credits representing monies that may be paid at a future date, the
opportunity to participate in a money-making program, retained or increased
earnings, increased equity in a parent or subsidiary entity, special bank deposits or
accounts, special or unusual banking terms, services of all types at special or free
rates, sales or rentals at special prices or rates, lease or rental payments based in
whole or in part on the amount of business referred, trips and payment of another
person's expenses, or reduction in credit against an existing obligation. The term
"payment" is used throughout Secs. 3500.14 and 3500.15 as synonymous with the
giving or receiving any "thing of value" and does not require transfer of money.
25 C.F.R. 3500.14(d) (emphasis added). Here plaintiffs argue that the inflated appraisals constituted
"thing[s] of value" because they allowed WMB to sell the loans to in higher volume to financial
institutions at higher prices. As alleged, this is the kind of quid-pro-quo benefit in return for a
referral that 2607(a)'s proscription of kickbacks is meant to reach. Indeed, the language of the
statute, encompassing all benefits constituting a "thing of value," and the interpreting regulation,
seem to include a wide variety of benefits that could be received in return for business referrals. The
court therefore finds that the alleged inflated appraisals fall within 2607(a).
Defendants also filed a statement of recent decision attaching Cedeno v. IndyMac Bancorp,
Inc., 2008 WL 3992304 (S.D.N.Y. 2008). Cedeno held that the "safe harbor" provision in
2607(c)(2) applied to a case with facts similar to this one. The safe harbor provides that "nothing in
this section shall be construed as prohibiting . . . the payment to any person of a bona fide salary or
compensation or other payment for goods or facilities actually furnished or for services actually
rendered." 12 U.S.C. 2706(c)(2). However, if one views the inflated appraisal as a "thing of value"
given from EA to WMB in return for the referral, it is not a payment for goods or services rendered.
In this case plaintiffs have, of course, paid for the appraisal services, but those payments are not
what is alleged to violate RESPA. Rather, the high appraisal is the payment made in exchange for
the referral of appraising business.
2607(b), which prohibits fee-sharing, provides that "[n]o person shall give and no person
shall accept any portion, split, or percentage of any charge made or received for the rendering of a
real estate settlement service in connection with a transaction involving a federally related mortgage
loan other than for services actually performed." Plaintiffs argue that the appraisals they received
were "not worth the paper on which they were printed and were otherwise valueless" and therefore
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that their payment for the appraisal is one other than for services performed under 2607(b).
Defendants argue that, although plaintiffs dispute the quality, they nonetheless received an appraisal
for the fee paid.
There is significant authority for the proposition that disputes about price, however justified,
do not give rise to liability under RESPA. See Morrisette v. Novastar Home Mortg., Inc., 284
Fed.Appx. 729, 729-730 (11th Cir. 2008) (noting that the Second, Third, Fourth, Seventh, and
Eighth and Eleventh Circuits hold that 8(b) of RESPA does not govern excessive fees because "it
is not a price control provision."). The court in Morrisette "rejected the notion that courts should
break single fees into various components for evaluation . . . with the allegedly "earned" versus
"unearned" portions of the fee." Id. Indeed, the court wrote, "subsection 8(b) requires a plaintiff to
allege that no services were rendered in exchange for a settlement fee." Id. (emphasis in original).
Plaintiffs do allege that they "never received the appraisal service for which they were charged."
Compl. 82. Indeed, plaintiffs consistently refer to the provided appraisal as a "sham, counterfeit"
appraisal. Pls.' Comb. Opp'n to Defs.' Mots. to Dismiss 9.
The distinction to be drawn, then, is between an overpriced service, from which RESPA
offers no protection, and no service at all, which it does. According to the allegations in the
complaint, plaintiffs paid for appraisals and received in return appraisals with inflated values.
Plaintiffs do not contend that the appraisals were so defective as to make them useless in supporting
the borrowers' loan applications. And plaintiffs' position that the appraisal were so defective as to be
useless and of no value is belied by the complaint. The appraisals were, in fact, successfully used to
obtain mortgages. Therefore, plaintiffs do not state a claim under 2607(b).
C. Preemption of State-Law Claims
Defendants also argue that plaintiffs' state-law claims are preempted by the Home Owners'
Loan Act ("HOLA"), 12 U.S.C. 1461 et seq.. Federal law may preempt state law in three ways:
"First, Congress may preempt state law by so stating in express terms. Second, preemption may be
inferred when federal regulation in a particular field is so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement it. . . . Third, preemption may be
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implied when state law actually conflicts with federal law." Bank of Am. v. City and County of San
Francsico, 309 F.3d 551, 558 (9th Cir. 2002).
HOLA was enacted in 1933 as a result of congressional dissatisfaction with state law and
practice in financing home construction. Conference of Federal Sav. and Loan Associations v.
Stein, 604 F.2d 1256, 1257-58 (9th Cir. 1979). At the time, State laws were "a hodgepodge of
savings and loan regulations," and 40% of home loans were in default. Id. (quoting T. MARVELL,
THE FEDERAL HOME LOAN BANK BOARD, p. 26 (1969)). To ameliorate the resulting lack of
confidence in savings and loan institutions, Congress passed HOLA, giving the Office of Thrift
Supervision ("OTS") broad regulatory authority over thrift institutions. Silvas v. E*Trade Mortgage
Corp., 514 F.3d 1001 (9th Cir. 2008); 12 U.S.C. 1464(a).
OTS promulgated a preemption regulation in 12 C.F.R. 560.2 explicitly occupying the field
of lending regulation for federal savings associations:
To enhance safety and soundness and to enable federal savings associations to
conduct their operations in accordance with best practices (by efficiently delivering
low-cost credit to the public free from undue regulatory duplication and burden),
OTS hereby occupies the entire field of lending regulation for federal savings
associations. OTS intends to give federal savings associations maximum flexibility to
exercise their lending powers in accordance with a uniform federal scheme of
regulation.
12 C.F.R. 560.2(a). After the above general field-preemption provision, 560.2(b) enumerates,
though "without limitation," thirteen particular types of state laws that are explicitly preempted.
These include, relevant here, state laws purporting to impose requirements regarding loan related
fees (12 C.F.R. 560.2(b)(5)), and processing, origination, servicing, sale or purchase of, or
investment or participation in, mortgages (12 C.F.R. 560.2(b)(10)). 560.2(c) identifies state laws
that are not preempted, listing some state laws of general application and providing that they are not
preempted "to the extent they only incidentally affect the lending operations of Federal savings
associations . . . ." 12 C.F.R. 560.2(c). According to later OTS regulations, a court should first
inquire whether a particular state law falls within 560.2(b). Silvas, 514 F.3d 1001, 1005 (9th Cir.
2008)(quoting 61 Fed. Reg. 50951, 50966-50967 (Sept. 30, 1996)). If it does, then the law is
preempted. Id. If not, the next question is whether the law affects lending, in which case the law is
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preempted unless the law can clearly be shown to fall within 560.2(c). Id. Finally, 560.2(c)
should be interpreted narrowly, and any doubt should be resolved in favor of preemption. Id.
1. Preemption of UCL and CLRA Claims
The first step is to analyze whether Cal. Bus. Prof. Code 17200, as applied, is the type of
state law contemplated under 560.2(b). Id. Plaintiffs first UCL claim is based on EA's allegedly
unlawful conduct in contravention of the Uniform Standards of Professional Appraisal Practice
("USPAP"). Compl. 91. Specifically, plaintiffs allege that EA violated the requirement that an
appraisal be performed with impartiality, objectivity, and independence. Id. Those standards are
incorporated into federal regulations concerning real-estate lending. See 12 C.F.R. 34, et sec
(entitled "Real Estate Lending and Appraisals."). Plaintiffs' second and third UCL claims, which
concern the same conduct, allege that the impartiality of the offered appraisals constituted unfair and
fraudulent business practices under 17200. Plaintiffs CLRA claim alleges that EA represented that
their home appraisal services were of a standard or quality that they were not, in violation of
California Civil Code 1770(a)(7).
Each of these claims relate directly to the processing and origination of mortgages.
Appraisals are required for many real-estate transactions. 12 C.F.R. 34.43 (requiring a certified or
licensed appraisal for all real-estate financial transactions except those falling within enumerated
exceptions). And those appraisals must be performed according to certain standards in order to
protect the public and federal financial interests. 12 C.F.R. 34.41(b). Indeed, plaintiffs' theory of the
case, that lenders and appraisers conspired to inflate appraisals in order to increase mortgage resale
prices, demonstrates the importance and interrelationship of impartial appraisals to mortgage
origination and servicing. See Compl. 1-7. The court therefore finds that plaintiffs' UCL and
CLRA claims, as applied, relate to the processing and origination of, and participation in, mortgages,
and are thus preempted under 560.2(b)(10). See also Cedeno, 2008 WL 3992304 at *8 (holding
that HOLA preempted a similar challenge to inflated appraisal values).
2. Preemption of Breach of Contract Claims
Although the court concludes below that the complaint includes insufficient allegations to
plead a claim for breach of contract, plaintiffs argue that EA breached a contract by providing the
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inflated appraisal to plaintiffs. As pled, the complaint offers insufficient detail to adjudicate whether
the claim is preempted. Compare In re Ocwen Loan Servicing, LLC Mortg. Servicing Litigation,
491 F.3d 638 (7th Cir. 2007)("Suppose [a Savings and Loan] signs a mortgage agreement with a
homeowner that specifies an annual interest rate of 6 percent and a year later bills the homeowner at
a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It
would be surprising for a federal regulation to forbid the homeowner's state to give the homeowner a
defense based on the mortgagee's breach of contract.") with Cedeno, 2008 WL 3992304 at *9-10
(holding that HOLA preempted a contract claim based on breach of the covenant of good faith and
fair dealing). Should plaintiffs choose to amend their claim for breach of contract claim, the court
will revisit the preemption question.
D. California Business and Professions Code 17200
Defendants contend that plaintiffs have not pleaded that they have suffered any damage, and
therefore cannot state a claim for violation of California's UCL. In order to have standing to sue
under 17200, a plaintiff must have suffered an "injury in fact and have lost money or property as a
result of the unfair competition." Cal. Bus. & Prof. Code 17204. Plaintiffs contend that they have
suffered injury in fact because, had they known that the appraisals were deficient, they "would not
have agreed to pay the fees requested as payment for the purportedly real appraisals," and that they
"were damaged in that they never received the appraisal service for which they were charged." Pls.'
Comb. Opp'n 28. Because plaintiffs would have had to pay for the appraisal in order to take out the
loan, they would have paid an appraisal fee whether the appraisal provided was defective or not.
That is, had the appraisal been performed lawfully and in good faith, plaintiffs provide no basis on
which to conclude that they would have been better off. Plaintiffs therefore lack standing under the
UCL.
E. CLRA
Actual damages are also an element of plaintiffs' claim under the CLRA, and it is therefore
also dismissed. Willens v. TD Waterhouse Group, Inc., 120 Cal.App.4th 746, 754 (2003).
F. Breach of Contract
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Defendants first argue that plaintiffs have not alleged that a contract existed between
plaintiffs and EA. Plaintiffs respond that the following paragraph of the complaint pleads a
contractual relationship:
In connection with these WMB home loans, WMB, on behalf of and for Plaintiffs and
the Class, undertook and agreed to procure appraisals from EA and/or LSI for the
homes that were the subject of Plaintiffs' and Class members' WMB loans. EA and/or
LSI undertook and agreed to provide and provided Plaintiffs and the Class with these
appraisals directly and/or by delivery to them through WMB. Plaintiffs and Class
members were charged for these appraisals as reflected in their Settlement Statements
(HUD-1) and other documents.
Compl. 120. This paragraph pleads that WMB agreed to procure an appraisal for plaintiffs and
that EA and LSI agreed to provide the appraisal, but does not state whether the appraisal would be
provided pursuant to a contract between EA and WMB, EA and plaintiffs, or merely to comply with
federal law. Plaintiffs argue that WMB acted as plaintiffs' agent, but that allegation does not appear
in the complaint. Plaintiffs therefore fail to plead an action for breach of contract.
G. Unjust Enrichment
Defendants contend that no independent cause of action exists for unjust enrichment. There
is a split in California courts on whether unjust enrichment is an independent cause of action or
merely an equitable remedy. See Falk v. General Motors Corp., 496 F.Supp.2d 1088, 1099-100
(N.D.Cal. 2007). Even where an independent action is permitted, it is generally where other forms
of relief are inadequate. Id. Because the court finds that the complaint states a claim for violation of
RESPA, and the unjust enrichment claim has the same basis, it is subject to dismissal.
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III. ORDER
For the reasons stated above, the court:
1. Grants LSI's motion to dismiss.
2. Denies EA's motion to dismiss with respect to 12 U.S.C. 2607(a);
3. Grants EA's motion to dismiss with respect to 12 U.S.C. 2607(b) with prejudice;
4. Grants EA's motion to dismiss with respect to plaintiffs' claims under California's
Unfair Competition Law and Consumer Legal Remedies Act with prejudice.
5. Grants EA's motion to dismiss plaintiffs' breach of contract claim.
6. Grants plaintiffs 20 days leave to amend.
DATED: 03/09/09
RONALD M. WHYTE
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JAS 12
Notice of this document has been electronically sent to:
Counsel for Plaintiff:
Ira Spiro Ira@SpiroMoss.com
Janet Lindner Spielberg jlspielberg@jlslp.com
Joseph N. Kravec , Jr. jnk@ssem.com
Michael David Braun service@braunlawgroup.com
James Mark Moore mark@spiromoss.com
Counsel for Receiver:
Jonathan Mark Lloyd jonathanlloyd@dwt.com
David A. Super david.super@bakerbotts.com
Ryan E. Bull Ryan.Bull@bakerbotts.com
Sam N. Dawood samdawood@dwt.com
Stephen M. Ng stephen.ng@bakerbotts.com
Counsel for Defendants:
Stephen Michael Rummage steverummage@dwt.com
Robert J. Pfister rpfister@stblaw.com
Martin L. Fineman martinfineman@dwt.com
Jeffrey D. Rotenberg jrotenberg@tpw.com
Kerry Ford Cunningham kerry.cunningham@dlapiper.com
Laura Jean Fowler lfowler@mhalaw.com
Patrick J. Smith psmith@tpw.com
Richard F. Hans rhans@tpw.com
Michael T. Fogarty tfogarty@mhalaw.com
Christopher J Clark cjclark@dl.com
Kevin C Wallace kwallace@dl.com
Kris Hue Chau Man kman@dl.com
Margaret Anne Keane mkeane@dl.com
Angela M. Papalaskaris apapalas@dl.com
Counsel are responsible for distributing copies of this document to co-counsel that have not
registered for e-filing under the court's CM/ECF program.
Dated: 03/09/09 JAS
Chambers of Judge Whyte
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Joseth N. Kravec, Jr.
SPE TER SPECTER EVANS
& MANOGUE, P.C.
The 26
th
Floor KOPRers Building
Pittsbu1Jh1 Penns! vania 15219
Tel: L; 642- 300
Fax: 412 642-2309
E-mail: ink@ssem.com
Michael D. Braun C667416)
BRAUN LAW GR UP, P.C.
12304 Santa Monica Blvd., Suite 109
Los CA 90025
Tel: 10; 442-7755
Fax: 310 442-7756
E-mail: service@braun1awgroup.com
Ira (67641)
SPI 0 MOSS BARNESS LLP
11377 West Blvd., Fifth Floor
Los A 0064-1683
Tel: 235-2468
Fax: 310 235-2456
Attorneys/or Plaintiffs
Janet Lindner Spielberg (221926)
LAW OFFICES OF JANET
LINDNER SPIELBERG
Tel: (310)392-8801
Fax: (310)278-5938
E-mail: jlspie1berg@ilslp.com
NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION
SIDNEY SCHOLL and FELTON A.
SPEARS, JR., on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
WASHINGTON MUTUAL, INC.
a Washington corporation;
WASHINGTON MUTUAL BANK,
FA (aka WASHINGTON MUTUAL
BANK); FIRST AMERICAN
EAPPRAISEIT, a Delaware
corporation!' and LENDER'S
SERVICE, NC.,
Defendants.
CASE NO.: 5:08-cv-00868 (HRL)
CLASS ACTION
FIRST AMENDED COMPLAINT FOR
DAMAGES EQUITABLE,
DECLARATORY AND INJUNCTIVE
RELIEF
DEMAND FOR JURY TRIAL
FIRST AMENDED COMPLAINT
Case 5:08-cv-00868-RMW Document 14 Filed 03/28/2008 Page 1 of 42
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Plaintiffs, by their attorneys, bring this class action against Defendants
Washington Mutual, Inc., Washington Mutual Bank, FA (aka Washington Mutual
Bank)(herein after collectively referred to as "WaMu"), First American eAppraiseIT
("EA"), and Lender's Service Inc., ("LSI") (collectively "Defendants") on their own
behalf and on behalf of all others similarly situated, and allege as follows based upon
the investigation of their counsel:
OVERVIEW
1. This is a class action against Defendants seeking relief on behalf of
Plaintiffs and a class of all consumers in California and throughout the United States
who, on or after June 1,2006, received home loans from WaMu, in connection with
appraisals that were obtained through either EA or LSI. Plaintiffs and the Class were
ultimately responsible for paying for these appraisals, which, as described throughout
this Complaint, were not performed in an independent, objective, impartial and
unbiased manner, in violation of applicable law and the contractual requirements for
the apprai sal.
2. The vast majority of home purchasers in the United States finance their
home purchase through a third party lender. The loan has traditionally been secured
by the lender, who retains a security interest in the property until the loan is repaid in
full. In the event of default, the lender will be entitled to sell off the security interest
(i.e., the property) and recoup the loan amount. Thus, it traditionally has been
critical for the lender to make sure the fair market value of the property equals or
exceeds the value of the loan.
l
To do so, lenders require that, prior to the loan, the
property be professionally appraised to determine its fair market value.
3. A real estate appraisal is supposed to be an independent, objective,
I Fair market value is the price at which a willing buyer would purchase a
property and a willing seller would sell the same property, when neither party is
under any compulsion to buy or sell, and each party has full knowledge of all
pertinent facts relating to the sale."
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impartial, unbiased, credible professional estimate of the fair market value of a
particular property. It typically consists of a visual inspection of the interior and
exterior of a property; inspection of the neighborhood; and a comparison of selling
prices of comparable properties on the street or adjacent areas, among other indicia.
The lender (in this case, WaMu) typically undertakes to procure the appraisal on
behalf of itself and the borrower with the cost of the appraiser's services ultimately
borne by the borrower.
4. If an appraisal is properly done, the appraisers perform the appraisal,
and appraisal reviewers review the appraisal report for accuracy and compliance with
applicable standards to create what legal and professional standards term a "credible
appraisal". Appraisers and appraisal reviewers follow federally accepted standards,
the Uniform Standards of Professional Appraisal Practice ("USPAP"), which govern
the ethical and legal aspects of the appraisal undertaking, assessment, reporting and
review process, and establish the minimum standards for performing a "credible
appraisal". These USPAP standards are also adopted by most, if not all, states,
including California. Also they are part of the contractual undertakings expressly
stated in the Uniform Residential Appraisal Report, which is the standard form that
appraisers use for their appraisal reports and which were used for the WaMu loans
that are the subject of this Complaint. These appraisal reports also expressly provide
that they are to be provided to borrowers and acknowledge that borrowers are
permitted to rely on the appraisals as part of any mortgage finance transaction
between borrowers and WaMu.
5. The USPAP requirements provide that to promote and preserve the
public trust inherent in professional appraisal practice, an appraiser and an appraisal
reviewer must observe the highest standards of professional ethics to perform and
ensure a "credible appraisal". An appraiser and an appraisal reviewer must perform
assignments ethically and competently, in accordance with USPAP and any
supplemental standards agreed to by the appraiser in accepting the assignment.
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Under USPAP, an appraiser and an appraisal reviewer must perform assignments
with impartiality, objectivity, and independence, and without bias or accommodation
of personal interests. In appraisal practice under USPAP, an appraiser and an
appraisal reviewer must not perform as an advocate for any party or issue, must not
accept an assignment that includes the reporting of predetermined opinions and
conclusions or favors the cause of any client, must not communicate assignment
results or write a report in a misleading or fraudulent manner, and must not permit an
employee or other person to communicate a misleading or fraudulent report.
6. In or about June 2006, WaMu entered an agreement, conspiracy or
scheme with EA and LSI, two purportedly independent appraisal companies, to
handle all ofWaMu's home loan appraisals. As part ofthis arrangement, EA and
LSI received appraisal requests from WaMu, procured local appraisers to perform the
appraisals, reviewed the appraisal reports, and requested, at the behest of WaMu, that
the appraisers make changes before finalizing the reports and providing them to
WaMu to transmit to the borrowers. In reality, WaMu, with the full, unfettered
cooperation ofEA and LSI, controlled the process by which individual appraisers
were selected, how home appraisals were performed and, ultimately, the values at
which properties were appraised. EA and LSI consulted directly with WaMu and its
loan officers to establish the property values they desired before EA and LSI (and its
appraisers) finalized the appraisal reports. This conspiratorial conduct allowed
WaMu to direct appraisers to artificially inflate home values and thus provide false
appraisals in order to qualify more people for higher value loans. WaMu would then
aggregate and package these home loans and sell them in the financial markets for a
substantial profit. Ultimately, the higher the volume and value of these loans, the
higher WaMu's profits. In 2006, WaMu made over $760 million in revenue from
sales and servicing of home mortgage loans.
7. As part of the scheme, EA and LSI each received millions of dollars in
appraisal fees from unsuspecting WaMu borrowers who, despite paying for what
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should have been credible appraisals (i.e., done in compliance with applicable legal
and professional standards so as to provide an independent, unbiased, and objective
appraisal of the fair market value of their property), instead unwittingly received
biased appraisals that were neither independent, objective or in compliance with
legal and professional standards. Each borrower was charged for a credible, lawful
appraisal, but as a result of the arrangement between WaMu, EA and LSI, no
credible, lawful appraisal was performed. WaMu borrowers (i.e., Plaintiffs and the
Class) were damaged thereby.
8. EA has its principal place of business in Poway, California and operates,
manages and directs its nationwide appraisal services and business operations from
its offices in California. Likewise, LSI has two of its three nationwide operation
centers in California, from which LSI operates and directs the majority, or at least a
substantial proportion, of its nationwide appraisal services and business operations.
A majority of WaMu's home loan portfolio are loans made in California, according
to its 2006 Annual Report. It is therefore believed and averred that the agreements,
conspiracy and misconduct at issue in this Complaint occurred, was conducted
and/or was directed primarily from, or at least a substantial proportion emanated
from, California, including, but not limited to: a) the designation and assignment of
appraisers for WaMu home loans; b) the review, approval and revision of appraisals
for WaMu home loans to meet WaMu's expectations; and c) the management and
supervision of appraisal services for WaMu home loans to Plaintiffs and the Class.
9. Defendants' conduct violates the Real Estate Settlement Procedures Act,
12 U.S.c. section 2607, the unlawful, unfair and fraudulent prongs of California's
Business and Professions Code section 17200, et seq. (the "DCL") as well as the
Consumer Legal Remedies Act ("CLRA"). Defendants' conduct also constitutes an
unlawful civil conspiracy. Defendants' conduct also breaches their contracts with
Plaintiffs and the Class, either directly or because Plaintiffs and Class members are
intended beneficiaries of the contracts, or Defendants' services, or is grounds for
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1 restitution on a quasi-contract/unjust emichment basis.
2 PARTIES
3 10. Plaintiff, Sidney Scholl, is an individual who is a citizen of the State of
4 California, residing in Sonoma County, California. In October, 2006, Ms. Scholl
5 entered a mortgage loan through WaMu's offices in Sonoma, California to purchase
6 a property located at 194 Terrace, Edmond, Oklahoma. In connection with this loan,
7 WaMu procured for itself and Ms. Scholl an appraisal on the subject property from
8 EA and/or LSI that was performed pursuant to the scheme alleged in this Complaint.
9 Ms. Scholl was charged for this appraisal.
10 11. Plaintiff, Felton A. Spears, Jr., is an individual who is a citizen of the
II State of California, residing in San Jose, California. In March, 2007, Mr. Spears
12 entered a mortgage loan with WaMu on a property located in San Jose, California.
13 In connection with this loan, WaMu procured for itself and Mr. Spears an appraisal
14 of the subject property from EA and/or LSI that was performed pursuant to the
15 scheme alleged in this Complaint. Mr. Spears was charged for this appraisal.
16 12. Defendants Washington Mutual, Inc. and Washington Mutual Bank, FA
17 (aka Washington Mutual Bank)(herein after collectively referred to as "WaMu")
18 collectively operate as a consumer and small business banking company in the
19 United States with assets totaling $346 billion. WaMu operates in four segments:
20 Retail Banking, Card Services, Commercial, and Home Loans. The Home Loans
21 segment originates and services home loans, manages capital market operations,
22 fulfills and services a portfolio of home equity loans and lines of credit, originates
23 and purchases mortgage loans to higher risk borrowers, provides financing and other
24 banking services to mortgage bankers for the origination of mortgage loans, and
25 offers insurance-related products and reinsurance services. This segment offers
26 various real estate secured residential loan products and services primarily consisting
27 of fixed-rate home loans, adjustable-rate home loans, hybrid home loans, option
28 ARM loans, and mortgage loans to higher risk borrowers. As of December 31, 2006,
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the company operated 2,225 retail banking stores and 472 lending stores and centers
in 36 states, including California. According to the company's 2006 Annual Report,
the majority ofWaMu's home loan portfolio are loans made in California.
13. Defendant First American eAppraiesIT ("EA") is a Delaware
corporation with its principal place of business at 12395 First American Way,
Poway, California. EA is a subsidiary of The First American Corporation and is a
California corporation with its principal place of business at 1 First American Way,
Santa Ana, California.
14. Defendant Lender's Service Inc. is one of the country's largest providers
of property valuation, title and closing services to the first mortgage, home equity,
and subprime markets, as well as to mortgage servicers and investors. LSI is a
subsidiary of Fidelity National Information Services, a corporation incorporated in
Georgia and headquartered in Jacksonville, Florida. LSI maintains three operation
centers, two of which, Santa Ana and Sacramento, are located in California.
JURISDICTION AND VENUE
15. Jurisdiction ofthis Court is proper under 28 U.S.C. l331(federal
question jurisdiction) and I367(supplemental jurisdiction). Plaintiffs assert a
federal claim under RESPA, 12 U.S.C. 2607, and supplemental state law claims.
16. Jurisdiction of this Court is alternatively proper under 28 U.S.c.
l332(d)(2). Plaintiffs are citizens of the State of California and reside in Sonoma
and San Jose, California. Defendant WaMu is incorporated in the State of
Washington and has its corporate headquarters in Seattle, Washington. Defendant
EA is incorporated in the State of Delaware and has its principal place of business in
Poway, California. Defendant LSI has two of its three main operation centers
located in Santa Ana, California and Sacramento, California. A substantial portion
of the conduct at issue in this lawsuit took place in one or more of Defendants'
California offices.
17. The amount in controversy exceeds $5,000,000 for Plaintiffs and Class
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members collectively, exclusive of interest and costs, by virtue of the combined cost
of appraisals performed by EA and LSI for WaMu, and the revenue and profit reaped
by Defendants from their transactions with Plaintiffs and the Class, as a direct and
proximate result of the wrongful conduct alleged herein, and by virtue of the
statutory, exemplary and/or punitive damages alleged herein.
18. Venue is proper within this judicial district pursuant to 28 U.S.c.
1391(b), (c) and (d). Defendant EA has agents, transacts business and is otherwise
found within this judicial district. Defendant LSI has agents, transacts business, and
is otherwise found within this judicial district. Defendant WaMu has agents,
transacts business and is otherwise found within this judicial district. A substantial
portion of the transactions and events complained of herein, including Plaintiffs',
occurred in this judicial district, a substantial portion of the affected persons and
entities are in this judicial district, and Defendants have received substantial
compensation from such transactions and business activity in this judicial district,
including the transaction Plaintiffs entered with Defendant. Finally, Defendants
inhabit and/or may be found in this judicial district, and the interstate trade and
commerce described herein is and has been carried out in part within this judicial
district.
BASIC FACTUAL ALLEGATIONS
The Real Estate M o r t ~ g e Industry
Provides Incentives for High Appraisals
19. WaMu is the country's largest savings and loan with assets totaling
$346 billion. During the first three quarters of 2007 alone, WaMu originated $116
billion in residential mortgage loans. WaMu procures more appraisals from EA and
LSI than any other single entity.
20. Traditionally, a lender such as WaMu would have an interest in ensuring
that a borrower is able to repay a home loan, and that the loan is adequately
collateralized in case the borrower defaults. Likewise, a consumer borrowing money
7
1 for a home loan places their trust in the lender to procure a credible appraisal (i.e.,
2 one done in compliance with applicable legal and professional standards so as to
3 provide an independent, objective and unbiased appraisal of their home's value) and
4 to lend them money on terms appropriate to that independent, objective and unbiased
5 assessment of that home's fair market value. Traditionally, the borrower and lender
6 shared a common interest in having a property independently and objectively
7 appraised to ensure both that the borrower was not paying too much, and that the
8 property value could support repayment of the loan in the event of a default.
9 21. Because historically banks retained ownership ofthe loan and mortgage
10 for the life of the loan, the banks' primary interest was to make sure that the
11 borrower paid off the principal and interest without delay or default. Whenever a
12 borrower defaulted on a loan it would have a direct financial impact on the lender,
13 i.e. loss or threatened loss of principal and interest on the loan. If the loan was
14 properly based on the actual fair market value of the property, however, the lender
15 would be able to sell the loan and recoup the outstanding principal. Accordingly, it
16 was critical that the market value of the property was properly appraised and that the
17 loan amount reflected that value.
18 22. In recent years the traditional model, whereby banks held a mortgage
19 loan until it was paid off, has changed. Banks such as WaMu no longer hold all, or
20 even most oftheir mortgage loans, but instead sell them to investment banks or
21 government sponsored enterprises such as the Federal National Mortgage
22 Association ("Fannie Mae") or the Federal Home Loan Mortgage Corporation
23 ("Freddie Mac"). These loans are then pooled together, securitized, and sold to the
24 general public as mortgage backed securities, allowing lenders such as WaMu to
25 profit from the volume and value of loans it has procured. The larger the aggregate
26 value of the loans, the more profit for the lender.
27 23. The paradigm shift away from retaining a portfolio of loans towards the
28 sale of mortgage backed securities fundamentally altered a lender's incentive to issue
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quality loans. By selling the vast majority of their mortgage loan portfolio to other
companies, banks no longer assumed the risk of a bad loan. The risk of default was
passed on to other companies and eventually the investors who bought mortgage
backed securities. More importantly, now bank profit directly correlated to the
volume and value of loans generated, not the likelihood that a loan would be repaid.
Banks were thus incentivized to offer as many loans at the highest dollar amounts
that could be offered with little regard to whether the loan could be paid back.
24. In this environment, there remains little incentive for Wamu to obtain a
credible appraisal of a property's real market value and every incentive to offer the
highest loan amounts possible, supporting the loans with biased, artificially inflated,
false appraisals.
Federal and State Laws Require Appraisal Independence
25. Despite the new economic paradigm fueling the mortgage lending
industry, state and federal regulations require that appraisals be "credible" by being
independent, objective, unbiased and performed in compliance with the minimum
standards set forth in the Uniform Standards of Professional Appraisal Practice
("USPAP"). These USPAP standards are incorporated into federal law, see 12
C.F.R. 34.44, are incorporated into many, if not all, state laws, including
California, see California Business and Professions Code 11319, and are part of the
contractual undertakings expressly stated in the Uniform Residential Appraisal
Report, which is the standard form that appraisers use for their appraisal reports and
which were used for the WaMu loans that are the subject of this Complaint. These
appraisal reports also expressly contemplated that they would be provided to
borrowers and acknowledged that borrowers may rely on the appraisals as part of any
mortgage finance transaction between borrowers and WaMu.
26. USPAP requires appraisers to conduct their appraisals independently:
"An appraiser must perform assignments with impartiality, objectivity, and
independence, and without accommodation of personal interests. In appraisal
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practice, an appraiser must not perform as an advocate for any party or issue. An
appraiser must not accept an assignment that includes the reporting of predetermined
opinions and conclusions." USPAP Ethics Rules (Conduct).
27. USPAP requires appraisers to communicate their appraisals honestly:
"An appraiser must not communicate assignment results in a misleading or
fraudulent manner. An appraiser must not use or communicate a misleading or
fraudulent report or knowingly permit an employee or other person to communicate a
misleading or fraudulent report." USPAP Ethics Rules (Conduct).
28. USPAP requires that "[i]n developing a real property appraisal, an
appraiser must: (a) be aware of, understand, and correctly employ those recognized
methods and techniques that are necessary to produce a credible appraisal..."
USPAP Standards Rule 1-1.
29. USPAP also requires that "[e]ach written real property appraisal report
must contain a signed certification that is similar in content to the following fonn:
I certify that, to the best of my knowledge and belief:
the statements of fact contained in this report are true and correct.
the reported analyses, opinions, and conclusions are limited only by the
reported assumptIOns and limitmg conditions and are my personal,
and unbiased professional analyses, opinions, and
conclusIOns.
I have no (or the specified) present or prospective interest in the
property that is the subject of this report and no (or the specified)
personal interest with respect to the parties involved.
I have no bias with respect to the property that is the subject of this
report or to the parties mvolved with this assignment.
my engagement in this.assignment was not contingent upon developing
or reportmg predetermmed results.
my compensation for completinR; this assignp1ent is not I.,lpon
the develop-ment or reportmK oCa predetermmed value or dIrectIOn m
value that favors the cause oTthe client, the amount of the value
opinion, the attainment of a stipulated result, or the occurrence of a
subsequent event directly related to the intended use of this appraisal.
my analyses, opinions, and conclusions were developed, and this report
has been prepared, in conformity with the Uniform Standards of
10
I Professional Appraisal Practice."
2 The appraisal reports for the WaMu loans that are the subject of this
:; Complaint contained this or a materially identical certification.
4 30. The same or similar USPAP ethics rules, standards and certifications are
5 required for appraisal reviewers (i.e., appraisers who perform a quality review of
6 another appraiser's report). Such appraisal reviews were performed by EA and LSI
7 appraisal reviewers on the appraisal reports for the WaMu loans that are the subject
8 of this Complaint.
9 31. Federal law mandates that appraisers involved in federally-regulated
10 transactions operate independently. See 12 U.S.C. 3331 et seq. The Federal
II Regulations provide that for independent contractors or "fee" appraisers, the
12 appraiser shall "have no direct or indirect interest, financial or otherwise, in the
13 property or the transaction." 12 C.F.R. 34.45.
14 32. In 2005, federal regulators, including the Office of Thrift Supervision
15 COTS"), published "Frequently Asked Questions on the Appraisal Regulations and
16 the Interagency Statement on Independent Appraisal and Evaluation Functions."
17 With regard to appraisal independence, the statement provides:
18 3. Who should be considered the loan production staff
19 for purpose of achieving appraisal independence?
20 Could loan production staff select an appraiser?
2]
Answer: The loan production staff consists of those
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responsible for generating loan volume or approving
24 loans, as well as their subordinates. This would
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include any employee whose compensation is based
26 on loan volume. Employees responsible for credit
27 administration function or credit risk management are
') ('
_0 not considered loan production staff. Loan
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production staff should not select appraisers.
5. When selecting residential appraiser, may loan
production staff use a revolving pre-approved
appraiser list, provided the list is not under their
control?
Answer: Yes, loan production staff may use a revolving board
approved list to select a residential appraiser,
provided the development and maintenance of the list
is not under their control. Staff responsible for the
development and maintenance of the list should be
independent of the loan production process.
Further, there should be periodic interval review
of the appraiser selection process to ensure that
appropriate procedures are being followed and
that controls exist to ensure independence.
(Emphasis added).
LSI and EA
Conspired With WaMu to Provide Artificial Appraisals
33. In 2006, responding to these federal regulations, as well as threats of
strict federal enforcement of appraiser independence in the mortgage lending
industry, WaMu attempted to insulate itself from criticism and federal oversight by
entering into an agreement with two purportedly independent Appraisal Management
Companies ("AMCs"), First American eAppraiseIT and Lender's Services, Inc.,
whereby WaMu would procure appraisals from these two AMCs on behalf of
borrowers for all or nearly all WaMu residential loans nationwide, with the cost of
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the appraisals being charged to the borrowers at the time of the closing of their loans.
These two AMCs were engaged to oversee the appraisal process and provide a barrier
of independence between WaMu (the lender) and those hired to appraise properties
on which it would provide mortgage loans. In theory, these AMCs were to select
appraisers independent of WaMu, serve as the sole contact with the appraiser, review
the appraiser's report, and communicate the unbiased results and report to WaMu.
WaMu would in turn communicate the appraisal results and reports to WaMu
bOITowers so both the borrower and lender could rely on them in entering the
mortgage loans. Under this arrangement, WaMu would theoretically not be able to
improperly influence the appraiser or the ultimate value placed on a property.
34. Both EA and LSI tout themselves as unbiased appraisers who abide by
USPAP requirements. As reported on its website, EA assures consumers that it uses
"only the services of appraisers licensed or certified by the state in which a subject
property is located" and "customers can be assured that Uniform Standards of
Professional Appraisal Practice and Financial Institutions Reform Recovery and
Enforcement Act ("FIRREA") guidelines are followed and that each appraisal is
audited for compliance." Likewise, LSI assures consumers that its appraisals
"conform to USPAP requirements."
35. In or about June 2006, WaMu retained EA and LSI to administer
WaMu's appraisal program. Since this time, EA and LSI have performed nearly all
of WaMu's appraisals. WaMu borrowers quickly became both EA's and LSI's
largest source of revenue. Since June 2006, EA alone has received over $50 million
in fees from borrowers who received loans through WaMu.
36. Prior to being retained by WaMu, EA and LSI used a combination of
internal staff and third party appraisers to service Wamu borrowers. Although the
independence of the appraiser is critical to the appraisal process, soon after retaining
EA and LSI to administer the WaMu appraisal program, WaMu identified certain
appraisers ("Preferred Appraisers") that WaMu requested conduct residential
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property appraisals for its loans. At first these preferred appraisers were simply
added to the list of possible appraisers to conduct appraisals for WaMu loans, but
eventually WaMu demanded that all of its appraisals be done by the Preferred
Appraisers. Despite USPAP and FIRREA requirements that appraisers be
independent, EA and LSI acquiesced to WaMu' s demand to staff appraisals with
Preferred Appraisers.
37. Additionally, WaMu encouraged EA and LSI to hire former Wa.\![u
employees as staff appraisers and appraisal business managers, the latter of which
had authority to override and/or revise the values reached by third party appraisers.
Both LSI and EA agreed to WaMu's request and took on new employees who
formerly worked for WaMu as its appraisers and regional managers.
38. Moreover, pursuant to contractual agreements between WaMu and the
AMCs, WaMu had the right to challenge an appraiser's conclusions by requesting a
"reconsideration of value" (also known as a "ROV" or "rebuttal") when WaMu did
not like the appraised value of a home. This rebuttal system gave WaMu a direct way
to request that EA or LSI reconsider an appraiser's report and to raise the value
assigned to a given home. WaMu frequently used this "reconsideration of value"
technique to get EA and LSI to provide higher appraisal values on homes to enable
its loan origination staff to close the loans.
39. In addition to WaMu's contractual ability to request a re-appraisal of
property valuation, the AMCs' Appraisal Business Managers, hired at the request of
WaMu, were given unfettered authority to ovelTide the values prescribed by third
party appraisers. According to a complaint fIled by the New Yark Attorney General
("NYAG") against EA, a WaMu executive defined the role ofEA's Appraisal
Business Managers in terms of value disputes in the following way:
... the four appraisers/reviewers would be directly involved in
escalations dealing with: ROVs, Valuation issues where the purchase
price and appraised value differ with no reconciliations/justifications by
14
I the appraiser, Value cuts which we continue to receive from your third
2 party reviewers (Wholesale), proactively making a decision to
3 override and correct the third party appraiser's value or reviewer's
4 value cut, when considered appropriate and supported...
5 Through these Appraisal Business Managers, WaMu sought to, and did, ensure that
6 home valuations would be sufficient to support the loan WaMu wanted to provide.
7
8 Guaranteed High Appraisals Were Facilitated Through
Instituting WaMu's Preferred Appraiser List
9
10 40. Soon after entering its arrangement with EA and LSI, WaMu's loan
II origination staff began complaining about the appraisals performed by these AMes
12 having property values too low for the proposed loans. WaMu's loan origination
13 staff received commissions based on the value and volwne ofloans generated. Their
14 dissatisfaction was based on desire to close loans at amounts higher than the
15 appraisals justified.
16 41. For example, according to the NYAG's complaint, as early as August 9,
17 2006, WaMu's internal staff admonished EA for not providing appraisals at the
18 values they wanted. In response to this acknowledged, improper pressure coming
19 from WaMu's loan origination staffwho desired the higher appraisals, EA's
20 Executive Vice President capitulated to WaMu's demands by giving its Appraisal
21 Business Managers discretion to raise the value of homes up to $50,000.
22 42. In order to guarantee WaMu would get the high appraisals it wanted,
23 without having to go through the delay of the rebuttal system, by the winter of2007,
24 WaMu insisted that EA and LSI use WaMu's "Preferred Appraisers" for all of
25 WaMu's home loan appraisals. These appraisers were individuals whom WaMu was
26 confident would appraise properties at a high inflated value to ensure WaMu could
27 quickly close the loan at a desired amount, and get as much value from the
28 transaction as possible.
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43. According to the NYAG's complaint, both EA and LSI were complicit
with WaMu's demands to exclusively use Preferred Appraisers. In an email dated
February 22,2007, EA's President explained to senior executives at EA's parent
corporation, First American, that:
We had ajoint call with Wamu and LSI today. The attached document
outlines the new appraiser assigning process. In short, we will now
assign al1 WaMu's work to WaMu's "Proven Appraisers" ... We wil1 pay
their appraisers whatever they demand. Performance ratings to retain
position as a Wamu Proven Appraiser will be based on how many
come in on value, negating a need for an ROV. (Emphasis added).
WaMu's "Preferred Appraiser List" Included Only Appraisers
Selected and Controlled by WaMu's Loan Origination Staff
44. The individuals on the "Preferred Appraiser List" were hand selected by
WaMu's loan origination staff. Requests sent to WaMu's AMes for the addition of
specific appraisers to the approved list were often sent by WaMu's loan origination
staff themselves. WaMu's Vice President of "Appraisal Oversight" - the division of
WaMu that is supposed to be responsible for ensuring that no undue influence is
exerted by WaMu's loan origination staff on appraisers - stated in an email to EA
regarding one ROY for a "low value," that "[t]his is an example of the issue that has
caused sales pushing for a 'proven appraiser' process."
45. In an email dated March 5, 2007, WaMu confirmed the role of its loan
origination staff in choosing specific appraisers for WaMu's "Proven Appraiser
List:"
Proven Appraiser List is being created. This wil1 replace the WaMu
preferred list. The initial list of names will be provided by lending
with a minimum of two appraisers per area/county. The list will then be
reviewed and approved by the Appraisal Business Oversight Team and
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will be checked against our most recent ineligible list. Final list will be
provided to VMC's [vendor management companies]. Majority of work
must be assigned to the appraisers on the Proven Appraiser List on a
Priority Basis. (Emphasis added).
46. Any review and approval by WaMu's Appraisal Business Oversight
Team was a facade. If an AMC went to WaMu's Appraisal Business Oversight team
to discuss the pressure being put on it by WaMu's loan origination staff to provide
higher home appraisal values, WaMu responded by telling the AMC to work the
issue out directly with the lending staff. WaMu insisted that its loan origination staff
have direct contact with appraisers so they could get the appraisals at the value they
wanted. Both EA and LSI permitted this direct involvement to occur.
47. Appraisers were also aware that the Proven Appraisers were being
selected by WaMu's loan origination staff, and that the only way for an appraiser to
get onto the list was by giving WaMu's origination staff the appraisals they sought.
According to the NYAG's complaint, in an email sent on April 17,2007 to EA's staff
appraisers to explain why staff appraisers were removed from WaMu's Proven
Appraiser List, EA's manager acknowledged WaMu's loan origination staffs
involvement in the selection of appraisers to perform WaMu's appraisals:
I thought I [sic] pass on my thoughts regarding the recent message that
we all received for [sic] Peter last weekend. I will be glad to tell you
what I know. I have been told that the lending folks at Wamu and [sic]
were unhappy with the AMC's and felt they were not receiving a good
level of appraisal work. They therefore decided to construct their own
appraisal panel, now known as the wamu proven panel, and instructed
the AMC's to utilize appraisers from this panel whenever possible. The
end result is that if you are not on this proven panel it is very unlikely
you will receive wamu work.
48. The involvement ofWaMu's loan origination staff in selecting
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appraisers to perform WaMu's home loan appraisals was readily apparent to all
parties involved and evidenced by emails sent by WaMu's origination staff to EA and
LSI requesting the addition of specific appraisers to the Proven Appraiser List. In an
email identified in the NYAG's complaint, EA's Executive Vice President informed
EA's President that "currently WAMU is controlling the appraisal panel. They are
selecting appraisers and calling them 'proven' appraisers. These appraisers are being
chosen by their sales force. First American eAppraiseIT (FA eAppraiseIT) is
obligated to use these appraisers." The stated reason WaMu insisted on only using
its 'proven' appraisers was because EA's appraisers provided WaMu with "low
values."
49. In addition to selecting which appraisers were on the Proven Appraiser
List, WaMu's loan origination staff was responsible for removing appraisers from the
list who did not comply with staff expectations or requests for high appraisals, or
who performed desk evaluations of other appraisals and reduced another appraiser's
valuation of one ofWaMu's customer's properties.
WaMu's Proven Appraiser List is Illegal
50. The Code of Federal Regulations provides that for independent
contractors or "fee" appraisers, the appraiser shall "have no direct or indirect interest,
financial or otherwise, in the property or the transaction." 12 C.F .R. 34.45. In
addition, the Uniform Standards of Professional Appraisal Practice ("USPAP") are
incorporated into federal law, see 12 C.F.R. 34.44, are incorporated into many, if
not all, states' laws, including California, and are expressly incorporated as part of
the Uniform Residential Appraisal Report used as the standard form for the appraisal
reports for the WaMu loans that are the subject of this Complaint. USPAP requires
appraisers and appraisal reviewers to provide and ensure "credible" appraisals by
complying with USPAP and other applicable legal and professional requirements,
which include, among other things, the requirement that appraisals and appraisal
reviews be conducted independently and without bias: "An appraiser must perform
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assignments with impartiality, objectivity, and independence, and without
accommodation of personal interests. In appraisal practice, an appraiser must not
perform as an advocate for any party or issue." USPAP Ethics Rules (Conduct).
51. Despite the requirement that appraisers be unbiased, independent, and
have no direct or indirect interest in the home mOligage transaction, the agreements
between WaMu and EA and LSI establishing WaMu's Proven Appraiser List put in
place an appraisal system that was anything but unbiased and independent. Those
appraisers willing to provide WaMu with its desired high appraisals for home
mortgage transactions were paid an additional 20% WaMu preferred appraisal fee for
each appraisal. Those appraisers unwilling to bend to WaMu's, EA's and LSI's
desire to provide WaMu with high appraisals were removed from the Proven
Appraiser List by WaMu's loan origination staff, and were thereafter prohibited from
providing appraisals for WaMu by EA or LSI. Appraisers, therefore, had a stake in
each and every appraisal they performed for WaMu. They were rewarded financially
for providing high home appraisal values through the 20% premium for each WaMu
appraisal performed, and were rewarded by staying on WaMu's "Proven Appraiser
List" for future WaMu appraisals.
52. EA and LSI likewise had a financial incentive to provide WaMu with the
specific appraisers WaMu wanted. If either EA or LSI did not agree to provide
WaMu with appraisers from WaMu's Proven Appraiser List, they faced losing
millions of dollars of business on WaMu's loans.
53. EA recognized that WaMu's Proven Appraiser List was unlawful, but
chose to go along with WaMu and continued providing illegal appraisal services in
order to reap millions of dollars from unsuspecting borrowers. According to the
NYAG's complaint, in an email from EA's president to senior executives of First
American dated April 17, 2007, EA described the relationship with WaMu as
follows: "In short, the issuers are using their designated appraisers as mandated by
the WaMu production force at 20% gross margin and bypassing our panel. We view
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this as a violation of the OCC, OTS, FDIC and USPAP influencing regulation."
(Emphasis added). In support ofEA's conclusion that its agreement with WaMu was
illegal, EA's Executive Vice President prepared a summary of the guidelines
regarding appraiser independence and, compared to WaMu's Proven Appraiser List,
concluded the following:
Based on our conversations we have had with the WAMU oversight as
well as the questions and answers initiated by our competitor LSI, it is
our interpretation that the loan production staff has a great deal to
do with selecting appraisers. The PAL [Proven Appraiser List] has
been selected by the loan production staff and the continued use of
these appraisers is being monitored by the loan production staff.
For example, on the LSI question #1 "Does WAMU want to be updated
transactionally on every order we can not assign to a PAL7", WAMU' s
answer is "Yes, we need a short sentence in the message log so that we
can monitor, - AND most important -lending can see why you didn't
assign to a PAL service provider. Not using a PAL appraiser will be an
issue so we need to ensure we've covered our bases as to why they're
not utilized." This appears to be directly in contradiction to the
interagency guidelines unless you have a different interpretation.
(Emphasis added).
54. Both EA and LSI knew that what WaMu was doing, by having its loan
origination staff personally select apprai sers, was illegal, and that by agreeing to
provide WaMu with its "Proven Appraisers" EA and LSI were acting as co
conspirators. According to the NYAG's complaint, in an email dated April 17, 2007,
EA' s Executive Vice President wrote to EA' s President and Chief Operating Officer
regarding EA's liability on this:
OTS and OCC only control lenders. However, there is the legal concern
about collusion. For example, let's say it is discovered that a lender
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(loan officer at a lender) is being collusive with an appraiser that is on
OUR (WAMU) panel. That is, our reps and warrants apply. Then we
are liable I would say because we have gone along with it.... In addition,
I think it will tarnish our reputation in the appraisal community because
we are allowing WAMU to pick appraisers based on their loan officers.
It makes us look complicit. So [it] may not be actionable
legally but would hurt our reputation. So those are two bad things
offthe cuff. There may be more if we think about it and use
creative paranoia.
55. Despite increasing regulatory scrutiny, rather than abandon the Proven
Appraiser List, WaMu sought to obfuscate its misfeasance by changing the name of
its Proven Appraiser List to the "WaMu Select" panel. WaMu stated that the, "Name
change from 'proven appraiser' and/or use of the moniker "PAL" list is discontinued,
under direction of the WaMu legal department. We are utilizing a more generic tenn
acceptable w/in regulatory guidelines and industry standards."
56. As a result ofWaMu's, EA's and LSI's arrangement, conspiracy and
scheme, thousands ofWaMu borrowers who collectively paid millions of dollars for
"independent, unbiased, and credible" appraisals, failed to receive what they paid for
and were damaged thereby.
PLAINTIFF SIDNEY SCHOLL
57. Plaintiff, Sidney Scholl, is an individual who is a citizen ofthe State of
California, residing in Sonoma County, California.
58. In October, 2006, Ms. Scholl entered a mortgage loan through WaMu's
offices in Sonoma, California to purchase a property located at 194 Terrace, Edmond,
Oklahoma. See Exhibit 1 (Settlement Statement).
59. In connection with this loan, WaMu procured for itself and Ms. Scholl
an appraisal on the subject property from EA and/or LSI. See Exhibit 2 (appraisal
report). The appraisal report, utilizing the Unifonn Residential Appraisal form,
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certifies that it was completed in compliance with the USPAP standards, including
being performed in an independent, objective and unbiased manner. Id. It also
acknowledges that the appraisal was performed for WaMu and EA and provided to
them and LSI, and was contemplated to be disclosed to and could be relied upon by
the borrower, Ms. Scholl, in her mortgage loan transaction with WaMu. ld. Ms.
Scholl was charged $255.00 for this appraisal.
60. Ms. Scholl understood she was purchasing a credible, lawful appraisal
and had no reason to doubt the certification in the appraisal report and therefore
believed that the appraisal done on her property was performed independently,
objectively, without undue influence or bias to affect the value of the home, and was
otherwise a credible, lawful appraisal done in compliance with applicable law. It was
upon this appraisal that Ms. Scholl and WaMu entered her loan.
61. Contrary to Ms. Scholl's belief and unbeknownst to her until shortly
before filing this Complaint, the appraisal for the property that was the subject of her
WaMu loan was created pursuant to the scheme described in this Complaint and
therefore Ms. Scholl did not receive the independent, objective, unbiased and
credible appraisal done in compliance with applicable law for which she paid, since
no such appraisal was performed by WaMu, EA, LSI or their agents. Ms. Scholl has
been damaged thereby.
PLAINTIFF FELTON A. SPEARS JR.
62. Plaintiff, Felton A. Spears, Jr., is an individual who is a citizen of the
State of California, residing in San Jose, California.
63. In March, 2007, Mr. Spears entered a mortgage loan with WaMu on a
property located in San Jose, California. See Exhibit 3 (Closing Statement).
64. In connection with this loan, WaMu procured for itself and Mr. Spears
an appraisal on the subject property from EA and/or LSI. It is believed that the
appraisal report, utilizing the Uniform Residential Appraisal form, certifies that it
was completed in compliance with the USPAP standards, including being performed
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in an independent, objective and unbiased manner. Id. It is also believed that the
appraisal report acknowledges that the appraisal was performed for WaMu and EA
and provided to them and LSI, and was contemplated to be disclosed to and could be
relied upon by the borrower, Mr. Spears, in his mortgage loan transaction with
WaMu. Id. Mr. Spears was charged approximately $361.00 for this appraisal.
65. Mr. Spears understood he was purchasing a credible, lawful appraisal
and had no reason to doubt the certification in the appraisal report and therefore
believed that the appraisal done on his property was performed independently,
objectively, without undue influence or bias to affect the value ofthe home, and was
otherwise a credible, lawful appraisal done in compliance with applicable law.
66. Contrary to Mr. Spears' belief and unbeknownst to him until shortly
before filing this Complaint, the appraisal for the property that was the subject of his
WaMu loan was created pursuant to the scheme described in this Complaint and
therefore Mr. Spears did not receive the independent, objective, unbiased and
credible appraisal done in compliance with applicable law for which he paid, since no
such appraisal was performed by WaMu, EA, LSI or their agents. Mr. Spears has
been damaged thereby.
DEFENDANTS' CONCEALMENT OF ITS SCHEME
67. WaMu's, EA's and LSI's scheme to conduct and charge Plaintiffs and
the Class for appraisals for WaMu home loans that were neither independent,
objective, impartial, unbiased, credible or in compliance with USPAP and applicable
law was never disclosed to Plaintiffs or any Class member by Defendants.
68. Nor did Defendants give Plaintiffs or the Class any reason to suspect
that there were any problems with their appraisals. Indeed, EA and LSI were
recognized, experienced appraisal companies who retained certified appraisers who
prepared reports that on the surface appeared to have all of the earmarks of
legitimate, independent, objective, unbiased, credible and lawful appraisals. The
appraisal reports even included the appraiser's certification that the report was done
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independently, objectively, impartially and in compliance with USPAP standards and
applicable law.
69. Moreover, it was traditional that lenders, like WaMu, would obtain
appraisals of properties in connection with the home loans and would provide the
appraisal reports to borrowers and would charge the borrowers for the reports. In
other words, without disclosure of Defendants' arrangement, Plaintiffs and the Class
could not have reasonably suspected that there was anything wrong with the appraisal
for which they were each charged.
70. The first time Defendants' scheme was publically revealed was in the
Fall of 2007 when the New York Attorney General announced its investigation and
complaint against EA for conspiring with WaMu to create false appraisals for WaMu
home loans. It was only upon and after the New York Attorney General's
announcement in the Fall of2007 that Plaintiffs became aware of Defendants,
scheme, and that Class members could have become aware of Defendants' scheme.
CLASS ACTION ALLEGATIONS
71. Plaintiffs bring this action on behalf of themselves and on behalf of all
other members ofthe Class ("Class"), defined as all persons in the United States who
received a home loan with WaMu and received an appraisal performed by EA or LSI.
Excluded from the Class are WaMu's, EA's, and LSI's officers, directors and
managerial employees, and any ofWaMu's, EA's, or LSI's subsidiary or affiliated
entities and any of the judges of the Court before which this case is pending.
72. There are thousands of class members who are geographically dispersed
throughout the United States, including California. Therefore, individual joinder of
all members of the Class would be impracticable.
73. Common questions oflaw or fact exist as to all members of the Class.
These questions predominate over the questions affecting only individual class
members. These common legal or factual questions include:
a. Whether WaMu entered into an agreement with EA and/or LSI to
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procure appraisal services that were not performed by independent, unbiased
appraisers as required by law;
b. Whether Defendants had and have policies, practices, or
procedures that undermine the possibility that Plaintiffs and the Class received
credible appraisals done in compliance with USPAP and applicable law;
c. Whether WaMu, through its agreement with EA and/or LSI, was
able to control the appraisal process, by its loan origination personnel or otherwise,
by having either EA or LSI provide higher appraised values for homes than EA's or
LSI's appraiser had initially concluded or than was the actual fair market value of
the home;
d. Whether EA and/or LSI agreed with WaMu to provide WaMu
with appraisers who were selected by WaMu to be on WaMu's Proven Appraiser List
(or the WaMu Select panel);
e. Whether WaMu controlled and/or manipulated the pool of
appraisers on WaMu' s Proven Appraiser Li st;
f. Whether the agreements between WaMu, EA and LSI constitute a
civil conspiracy;
g. Whether Defendants' actions described herein violate the Real
Estate Settlement Procedures Act, 12 U.S.C. 2607;
h. Whether Defendants' actions described herein violate California's
Business and Professions Code, sections 17200 et seq.;
1. Whether Defendants' actions violate California's Consumer Legal
Remedies Act, California Civil Code sections 1750 et seq.;
J. Whether Defendants breached their contracts with Plaintiffs and
the Class;
k. The appropriate measure of damages and/or restitution.
74. Plaintiffs' claims are typical of the claims of the Class, in that Plaintiffs
took out home mortgage loans with Defendant WaMu and their home appraisals were
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procured for them by WaMu through EA and/or LSI. Plaintiffs, therefore, are no
different in any relevant respect from any other Class member, and the relief sought
is common to the Class.
75. Plaintiffs are adequate representatives of the Class because their
interests do not conflict with the interests of the class members they seek to represent,
and they have retained counsel competent and experienced in conducting complex
class action litigation. Plaintiffs and their counsel will adequately protect the
interests of the Class.
76. A class action is superior to other available means for the fair and
efficient adjudication of this dispute. The damages suffered by each individual class
member likely will be relatively small, especially given the burden and expense of
individual prosecution of the complex litigation necessitated by Defendants' conduct.
Thus, it would be virtually impossible for the class members individually to
14 I effectively redress the wrongs done to them. Moreover, even if the class members
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could afford individual actions, it would still not be preferable to class wide
litigation. Individualized actions present the potential for inconsistent or
contradictory judgments. By contrast, a class action presents far fewer management
difficulties and provides the benefits of single adjudication, economies of scale, and
comprehensive supervision by a single court.
77. In the alternative, the Class may be certified because Defendants have
acted or refused to act on grounds generally applicable to the Class, thereby making
appropriate preliminary and final equitable relief with respect to the Class as a whole.
FIRST CLAIM FOR RELIEF
(Against Defendants' for Violation ofRESPA, 12 U.S.c. 2607)
78. Plaintiffs hereby incorporate the foregoing paragraphs of this Complaint
and restate them as ifthey were fully written herein.
79. Under 12 U.S.C. 2607(b) ofRESPA, "[n]o person shall give and no
person shall accept any portion, split, or percentage of any charge made or received
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for the rendering of a real estate service in connection with a transaction involving a
federally related mortgage loan other than for services actually performed."
80. Plaintiffs and the Class entered federally related mortgage loans with
WaMu on or after June 1,2006.
81. In connection with these WaMu loans, Plaintiffs and the Class were
charged for appraisals WaMu procured for them through EA and LSI that were
certified in the appraisal report to be credible, independent, objective, unbiased, and
performed in compliance with USPAP and applicable law. As described throughout
this Complaint, no such appraisals were performed by Defendants and the appraisals
for which Plaintiffs and the Class were charged by Defendants were neither
independent, objective, unbiased or performed in compliance with USPAP or
applicable law, in violation of 12 U.S.C. 2607(b) ofRESPA. As such, the
appraisals Plaintiffs and the Class received from WaMu, EA and LSI were not
appraisals at all in that they could not be relied upon at all since they had not been
performed in compliance with the applicable legal and professional standards. In
other words, the appraisals Plaintiffs and the Class received were not worth the paper
on which they were printed and were otherwise valueless.
82. Plaintiffs and the Class never received the appraisal service for which
they were charged by Defendants and have been damaged thereby.
83. Under 12 U.S.C. 2607(a) ofRESPA, "[n]o person shall give and no
person shall accept any fee, kickback, or thing of value pursuant to any agreement or
understanding, oral or otherwise, that business incident to or part ofa real estate
settlement service involving a federally related mortgage loan shall be referred to any
person."
84. As described throughout this Complaint, WaMu entered into an
agreement or understanding with EA and LSI specifYing that in exchange for WaMu
steering to EA and LSI all, or most, of the appraisal business for WaMu residential
loans, EA and LSI would cooperate with WaMu to ensure that the appraisals
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established property values sufficient to support the WaMu residential loan amounts
regardless of the true market value of the properties that were the subject of the
WaMu home loans.
85. To facilitate WaMu's, EA's and LSI's agreement or understanding, EA
and LSI agreed to use (for WaMu home loans) appraisers that WaMu's loan
origination staff selected to be on its Proven Appraiser List based on these
individuals providing WaMu with sufficiently high appraisals to financially benefit
both WaMu and its loan origination staff. In return, WaMu demanded that EA and
LSI pay appraisers on its Proven Appraiser List a 20% premium over what EA's and
LSI's staff or third party appraisers were paid. Those appraisers who did not provide
WaMu with the desired high appraisal values were removed from WaMu's Proven
Appraiser List by WaMu's loan origination staff, and were thereafter prohibited from
providing appraisals for WaMu, and could not get the 20% appraisal premium.
Appraisers on WaMu's Proven Appraiser List have a financial interest in each and
every WaMu home loan mortgage transaction that they perform appraisal services
for, both for the immediate 20% additional fee, as well as future appraisals for WaMu
at the additional 20% fee.
86. WaMu benefitted from this arrangement by securing more high value
home mortgages that it could bundle and securitize for substantial profits, and EA
and LSI benefitted from this arrangement by securing a steady stream of appraisal
work on WaMu home loans. Appraisers on WaMu's Proven Appraiser List who
were retained by EA and LSI to perform appraisals for WaMu home loans benefitted
from this arrangement by receiving a 20% premium in return for their participation in
this unlawful arrangement with WaMu, EA and LSI.
87. Plaintiffs and the Class were damaged by Defendants' arrangement in
that they never received the appraisal service for which they were charged by
Defendants and instead unwittingly received unreliable, biased appraisals that were
the basis of the mOligage transactions they entered with WaMu.
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SECOND CLAIM FOR RELIEF
(Against Defendants for Unfair Business Practices in Violation of
Business & Professions Code 17200, et seq.)
and restate them as if they were fully written herein.
89. The UCL defines unfair business competition to include any "unlawful,
unfair or fraudulent" act or practice. Cal. Bus. & Prof. Code 17200.
90. A business practice is "unlawful" under the Unfair Competition Law if it
is forbidden by law, including state or federal laws or regulations.
91. The Code of Federal Regulations provides that for independent
contractors or "fee" appraisers, the appraiser shall "have no direct or indirect interest,
financial or otherwise, in the property or the transaction." 12 C.F .R. 34.45. In
addition, the Uniform Standards of Professional Appraisal Practice CUSPAP"),
which are incorporated into federal law by 12 C.F.R. 34.44, and into the state law
of many, if not all states, including California (see California Business and
Professions Code 11319) requires appraisers to perform a credible appraisal done in
compliance with USPAP standards, which includes requiring that their appraisals be
conducted independently: "An appraiser must perform assignments with impartiality,
objectivity, and independence, and without accommodation of personal interests. In
appraisal practice, an appraiser must not perform as an advocate for any party or
issue." USPAP Ethics Rules (Conduct).
92. USPAP also requires that "[e]ach written real property appraisal report
must contain a signed certification that is similar in content to the following form:
I certify that, to the best of my knowledge and belief:
the statements of fact contained in this report are true and conecl.
the reported analyses, opinions, and conclusions are limited only by the
reported assumptIOns and limitmg conditions and are my personal,
and unbiased professional analyses, opinions, and
conclUSIOns.
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I have no (or the specified) present or prospective interest in the property
!hat is the.subject of this report.an4 no (or the specified) persona
Interest wIth respect to the partIes Involved.
I have no bias with respect to the property that is the subject of this
report or to the parties Involved with this assignment.
my engagement in this.assignment was not contingent upon developing
or reporting predetermined results.
my compensation for completing this assignment is not contingent upon
the development or reportlnKo f ~ a predetermined value or direction in
value that lavors the cause of the client, the amount of the value opinion,
the attainment of a stipulated result, or the occurrence of a subsequent
event directly related to the intended use of this appraisal.
my analyses, opinions, and conclusions were developed, and this report
has been prepared, in conformity with the Uniform Standards of
ProjessionalAppraisal Practice." . .
The appraisal reports for the WaMu loans that are the subject ofthis Complaint
contained this or a materially identical certification.
93. The same or similar USPAP ethics rules, standards and certifications are
required for appraisal reviewers (i.e., appraisers who perform a quality review of
another appraiser's report). Such appraisal reviews were performed by EA and LSI
appraisal reviewers on the appraisal reports for the WaMu loans that are the subject
of this Complaint.
94. WaMu, EA, and LSI have and continue to violate the "unlawful" prong
of the UCL through the creation and use ofWaMu's Proven Appraiser List because
appraisers on this list clearly have an interest in each WaMu home appraisal
transaction, and are not unbiased and independent. WaMu's loan origination staff
selects appraisers to be on its Proven Appraiser List based on these individuals
providing WaMu with sufficiently high appraisals to financially benefit both WaMu
and its loan origination staff. In return, WaMu demands that EA and LSI pay
appraisers on its Proven Appraiser List a 20% premium over what EA's and LSI's
staff or third party appraisers are paid. Those appraisers who do not provide WaMu
with the desired high appraisal values are removed from WaMu's Proven Appraiser
List by WaMu's loan origination staff, and are thereafter prohibited from providing
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appraisals for WaMu, and can not get the 20% appraisal premium. Appraisers on
WaMu's Proven Appraiser List clearly have a financial interest in each and every
WaMu home loan mortgage transaction that they perform appraisal services for, both
for the immediate 20% additional fee, as well as future appraisals for WaMu at the
additional 20% fee.
95. WaMu, EA and LSI conspired to allow WaMu's loan origination staff to
select individuals to be on WaMu's Proven Appraiser List even though federal and
state law prohibits loan producers from having a direct influence on appraisers. See
Office of Thrift Supervision ("OTS"), published "Frequently Asked Questions on the
Appraisal Regulations and the Interagency Statement on Independent Appraisal and
Evaluation Functions." WaMu, EA, and LSI also agreed that WaMu's loan
origination staff would have control over deciding which individuals would stay on
the list in violation of federal laws which prohibit loan producers from having a
direct int1uence on appraisers.
96. Through these agreements, the appraisers on WaMu's Proven Appraiser
List retained by EA and LSI for WaMu home loans are not acting independently,
objectively and in compliance with USPAP standards as federal and state law
mandates. Rather, WaMu, EA and LSI permit and have agreed to permit WaMu's
loan origination staff direct contact with appraisers to influence their ultimate
appraisal decision, instead of allowing them to act in an unbiased, independent
fashion. Moreover, the appraisal reports that these appraisers create for WaMu home
loans, which are approved by EA and LSI in their review process, are not
independent, objective, unbiased, credible or performed in compliance with USPAP
standards as required by federal and state law.
97. Additionally, as the violation of any law may serve as the predicate for a
violation of the unlawful prong of the Unfair Competition Law, Plaintiffs further
allege that Defendants, in violating the Real Estate Settlement Procedures Act, the
Consumers Legal Remedies Act, and the common law of contract, violated the Unfair
31
1 Competition Law.
2 98. Because of Defendants' unlawful acts and practices, Defendants injured
3 Plaintiffs and members of the Class and obtained, and continue to unfairly obtain,
4 money and property from Plaintiffs and members of the Class. Thus, Plaintiffs
5 request that this Court cause Defendants to restore this money to Plaintiffs and all
6 Class members, and to enjoin Defendants from continuing to violate the Unfair
7 Competition Law as discussed herein. Otherwise, the Class may be irreparably
8 harmed and/or denied an effective and complete remedy if such an order is not
9 granted.
10 THIRD CLAIM FOR RELIEF
11 (Against Defendants for Unfair Business Practices in Violation of
12 Business & Professions Code 17200, et seq.)
13 99. Plaintiffs hereby incorporate the foregoing paragraphs ofthis Complaint
14 and restate them as if they were fully written herein.
15 100. The UCL defines unfair business competition to include any "unlawful,
16 unfair or fraudulent" act or practice. Cal. Bus. & Prof. Code 17200.
17 101. A business act or practice is "unfair" under the Unfair Competition Law
18 if the reasons, justifications and motives of the alleged wrongdoer are outweighed by
19 the gravity of the harm to the alleged victims.
20 102. Defendants have violated, and continue to violate, the "unfair" prong of
21 the UCL in the following ways:
22 a. Agreeing to allow and allowing WaMu to create its Proven
23 Appraiser List which is constituted of appraisers WaMu hand selected as being ones
24 that would provide WaMu with high home appraisal values;
25 b. Agreeing to allow and allowing WaMu to limit its Proven
26 Appraiser List to only those appraisers WaMu knew would provide it with high home
27 appraisal values;
28 c. Agreeing to allow and allowing all of WaMu's home appraisals to
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be performed by only appraisers on WaMu's Proven Appraiser List;
d. Agreeing to allow and allowing WaMu control over the Proven
Appraiser List by allowing WaMu, or members ofWaMu's loan origination staff, to
choose appraisers to be added to the list, or to choose appraiser to be taken off the
list;
e. Agreeing to allow and allowing WaMu to dictate a financial
incentive for appraisers on WaMu's Proven Appraiser List to inflate appraisals;
f. Agreeing to provide and providing appraisers on WaMu's Proven
Appraiser List a financial interest in each appraisal performed for WaMu;
109. Agreeing to provide and providing appraisers on WaMu's Proven
II Appraiser List a financial interest in remaining on WaMu's Proven Appraiser List by
12 paying these appraisers a higher per-appraisal fee, and by infOlming them that if they
13 did not provide appraisals at a high enough value for WaMu, they would be removed
14 from the Proven Appraiser List;
15 h. Agreeing to allow and allowing WaMu the ability to overrule
16 home appraisal values WaMu believed to be too low through the "rebuttal" or
17 "Reconsideration of Value" system;
18 I. Agreeing to allow and allowing WaMu's loan origination staff to
19 have direct contact with LSI, EA, and their appraisers, with regard to appraisals
20 performed for home loans for WaMu; and,
21 J. Failing to provide home loan borrowers with unbiased,
22 independent and credible home appraisals performed in compliance with USPAP
23 standards.
24 103. The gravity of the harm to members of the Class resulting from such
25 unfair acts and practices outweighs any conceivable reasons, justifications and/or
26 motives of Defendants for engaging in such deceptive acts and practices. By
27 committing the acts and practices alleged above, Defendants have engaged, and
28 continue to be engaged, in unfair business practices within the mean ing of California
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FIRST AMENDED COMI'LAINT
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Business and Professions Code 17200 et seq.
104. Through their unfair acts and practices, Defendants have obtained, and
continue to unfairly obtain, money from members of the Class. As such, Plaintiffs
request that this Court cause Defendants to restore this money to Plaintiffs and all
Class members, and to enjoin Defendants from continuing to violate the Unfair
Competition Law as discussed herein. Otherwise, the Class may be irreparably
harmed and/or denied an effective and complete remedy if such an order is not
granted.
FOURTH CLAIM FOR RELIEF
(Against Defendants for Unfair Business Practices in Violation of
. Business & Professions Code 17200, et seq.)
106. The UCL defines unfair business competition to include any "unlawful,
unfair or fraudulent" act or practice. Cal. Bus. & Prof. Code 17200.
107. A business act or practice is "fraudulent" under the Unfair Competition
Law if it actually deceives or is likely to deceive members of the consuming public.
108. Defendants' acts and practices as described herein have deceived and/or
are likely to deceive members of the consuming public, including Plaintiffs and the
Class. Specifically, Defendants offered to provide Plaintiffs and members of the
Class with independent, unbiased and credible home appraisals perfonned in
compliance with USPAP standards, and, in fact, certified such in the appraisal reports
prepared for and disseminated to Plaintiffs and the Class by Defendants. Yet, despite
this offer and promise, Defendants' failed to provide independent, unbiased and
credible home appraisals in the following ways:
a. Agreeing to allow and allowing WaMu to create its Proven
Appraiser List which is constituted of appraisers WaMu hand selected as being ones
that would provide WaMu with high home appraisal values;
34
1 b. Agreeing to allow and allowing WaMu to limit its Proven
2 Appraiser List to only those appraisers WaMu knew would provide it with high home
3 appraisal values;
4 c. Agreeing to allow and allowing all of WaMu's home appraisals to
5 be performed by only appraisers on WaMu's Proven Appraiser List;
6 d. Agreeing to allow and allowing WaMu control over the Proven
7 Appraiser List by allowing WaMu, or members of WaMu's loan origination staff, to
8 choose appraisers to be added to the list, or to choose appraiser to be taken off of the
9 list;
10 e. Agreeing to allow and allowing WaMu to dictate a financial
11 incentive for appraisers on WaMu's Proven Appraiser List;
12 f. Agreeing to provide and providing appraisers on WaMu's Proven
13 Appraiser List a financial interest in each appraisal performed for WaMu;
14 g. Agreeing to provide and providing appraisers on WaMu's Proven
15 Appraiser List a financial interest in remaining on WaMu's Proven Appraiser List by
16 paying these appraisers a higher per-appraisal fee, and by informing them that if they
17 did not provide appraisals at a high enough value for WaMu, they would be removed
18 from the Proven Appraiser List;
19 h. Agreeing to allow and allowing WaMu the ability to overrule
20 home appraisal values WaMu believed to be too low through the "rebuttal" or
21 "Reconsideration of Value" system;
22 I. Agreeing to allow and allowing WaMu's loan origination staff to
23 have direct contact with LSI, EA, and/or their appraisers, regarding appraisals
24 performed for WaMu home loans; and,
25 J. Failing to provide home loan borrowers with unbiased,
26 independent and credible home appraisals performed in compliance with USPAP
27 standards.
28 109. As a result of the conduct described above, Defendants have been, and
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will continue to be, unjustly enriched at the expense of Plaintiffs and members of the
proposed Class. Specifically, Defendants have been unjustly enriched by the profits
and revenue it has obtained from Plaintiffs and the Class from the home appraisals
charged to them when taking out WaMu loans.
110. Because of Defendants' unlawful acts and practices, Defendants injured
Plaintiffs and members of the class and obtained, and continue to unfairly obtain,
money and property from Plaintiffs and members of the Class. Thus, Plaintiffs
request that this Court cause Defendants to restore this money to Plaintiffs and all
Class members, and to enjoin Defendants from continuing to violate the Unfair
Competition Law as discussed herein. Otherwise, the Class may be irreparably
harmed and/or denied an effective and complete remedy if such an order is not
granted.
FIFTH CLAIM FOR RELIEF
(Against Defendants for Violation of the Consumers Legal Remedies Act,
California Civil Code 1750, et seq.)
Ill. Plaintiffs hereby incorporate the foregoing paragraphs ofthis Complaint
112. This claim for relief is brought pursuant to the Consumers Legal
Remedies Act, California Civil Code 1750, et seq. (the "CLRA").
113. Plaintiffs and each member of the proposed Class who took out WaMu
home loans, and had appraisals performed by EA and/or LSI are "consumers" within
the meaning of Civil Code 1761(d).
114. The home appraisals sold by Defendants to Plaintiffs and Class members
are "services" within the meaning of Civil Code 1761 (b).
115. Defendants have violated, and continue to violate, the CLRA in at least
the following respects:
a. in violation of Civil Code 1770(a)(7), Defendants represented
their home appraisal services to be of a particular standard or quality, (i.e., being
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credible, independent, unbiased and performed in compliance with USPAP
standards), which they were not.
116. Plaintiffs and the members of the Class request that this Court enjoin
Defendants from continuing to engage in the unlawful and deceptive methods, acts
and practices alleged above, pursuant to California Civil Code 1780(a)(2). Unless
Defendants are permanently enjoined from continuing to engage in such violations of
the CLRA, future consumers taking out WaMu home loans will be damaged by their
acts and practices in the same way as have Plaintiffs and the members of the
proposed Class.
117. Pursuant to Civil Code 1782, Plaintiffs notified Defendants in writing
of the particular violations of Civil Code 1770 and demanded that Defendants
rectify the problems associated with its illegal behavior detailed above, which actions
are in violation of Civil Code 1770.
118. Defendants failed within 30 days of receipt of Plaintiffs notice of
demand to give, or agree to give within a reasonable time to the Class, including
Plaintiffs, the requested remedies. Pursuant to Civil Code l782(b)and (d), Plaintiffs
file this Amended Complaint and seek the following damages as provided for in Civil
Code 1780:
a. actual damages in excess of the jurisdictional limits of this Court;
b. an order enjoining methods, acts and/or practices, as outlined
above, which are in violation of Civil Code 1770;
c. punitive damages;
d. any other relief which the Court deems proper, and;
e. court costs and attorneys' fees.
SIXTH CLAIM FOR RELIEF
(Against Defendants for Breach of Contract)
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120. Plaintiffs and the other Class members on or after June 1,2006 took out
a WaMu home loan with WaMu. In connection with these WaMu home loans,
WaMu, on behalf of and for Plaintiffs and the Class, undertook and agreed to procure
and did procure appraisals from EA and/or LSI for the homes that were the subject of
Plaintiffs' and Class members' WaMu loans. EA and/or LSI undertook and agreed to
provide and provided Plaintiffs and the Class with these appraisals directly and/or by
delivery to them through WaMu. Plaintiffs and Class members were charged for
these appraisals as reflected in their Settlement Statements (HUD-l) or other loan
documents.
121. As evidenced by the loan documents that accompanied the home loan
transaction, the contracts between Plaintiffs and the Class and Defendants show that
the Defendants were to provide a home appraisal which, pursuant to applicable laws
and standards as certified in the appraisal reports, would be performed by an
independent, objective and unbiased appraiser, and the appraisal reports would be
credible, objective, unbiased and independent home appraisal done in compliance
with USPAP standards. Moreover, the appraisal reports Plaintiffs and the Class
received from Defendants specifically acknowledge that borrowers (i.e., Plaintiffs
and the Class) would receive the appraisal report and may rely upon them in their
mortgage financing transaction with the lender (i.e., WaMu).
122. Plaintiffs and the Class performed all conditions of the contracts to be
perfonned by them, except to the extent they were lawfully excused from such
performance. Defendants breached these contracts with Plaintiffs and each Class
member by not providing a home appraisal which was performed by an independent,
objective and unbiased appraiser, and by not providing appraisal reports that were
credible, objective, unbiased, independent, and done in compliance with USPAP
standards and applicable law. In other words, Plaintiffs and the Class were charged
for a lawful appraisal which was never performed by Defendants.
123. As a direct and proximate result of the foregoing conduct, Plaintiffs and
38
I the Class members have suffered damages, including economic losses, warranting
2 compensatory damages as well as injunctive relief, declaratory relief and other
3 equitable relief deemed just and proper by the Comi.
4 SEVENTH CLAIM FOR RELIEF
5 (Against Defendants for Quasi-ContractfUnjust Enrichment)
6 124. Plaintiffs hereby incorporate by reference each and every allegation
7 contained in the preceding paragraphs of this Complaint as iffully rewritten herein.
8 Plaintiffs plead this Count in the alternative.
9 125. Defendants' engaged in unlawful conduct by representing to Plaintiffs
10 and the members of the Class that their home appraisals provided for the purpose of
II obtaining a home loan would be performed by an independent and unbiased appraiser
12 and that the appraisal report would be credible, objective and done in compliance
13 with USPAP standards, but actually providing home appraisals performed by a
14 biased, non-independent appraiser and providing appraisal reports that were not
15 credible, objective or done in compliance with USPAP standards as described
16 throughout this Complaint, is unlawful
17 126. Defendants took monies from Plaintiffs and Class members in exchange
18 for what were supposed to be independent, objective, unbiased, credible appraisals
19 and appraisal reports done in compliance with USPAP standards, but did not provide
20 such appraisals and appraisal reports. Defendants have been unjustly emiched at the
21 expense of Plaintiffs and the Class members as a result of their unlawful conduct
22 alleged herein, thereby creating a quasi-contractual obligation on Defendants to
23 restore these ill-gotten gains to Plaintiffs and the Class.
24 127. As a direct and proximate result of Defendants' unjust enrichment,
25 Plaintiffs and Class members are entitled to restitution in an amount to be proved at
26 trial.
27 / / /
28 / / /
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PRAYER
WHEREFORE, Plaintiffs, on behalf of themselves and on behalf of the other
members of the Class, request an award and reliefas follows:
A. An order certifying that this action is properly brought and may be
maintained as a class action, that Plaintiffs be appointed Class Representative and
Plaintiffs' counsel be appointed Class Counsel.
B. Compensatory damages, except as to Counts Two, Three, Four.
C. Treble damages as to Count One.
D. Punitive damages as to Count Five.
E. Restitution in such amount that Plaintiffs and all Class members paid for
their home appraisals, or the profits, charges and fees Defendants obtained from
them.
F. An order enjoining Defendants from maintaining and utilizing WaMu's
Proven Appraiser List, or any other mechanism by which WaMu has control over the
appraiser selected to perform WaMu's home appraisals or value the appraiser sets for
the subject property.
G. An order awarding Plaintiffs their costs of suit, including pre and post-
judgment interest.
H. An order awarding Plaintiffs' counsel's attorneys' fees.
1. An order requiring an accounting for, and imposition of a constructive
trust upon, all monies received by Defendants as a result of the unfair, fraudulent and
unlawful conduct alleged herein.
J. Such other and further relief as may be deemed necessary or appropriate.
1//
1//
/1/
/1/
1//
40
1 DEMAND FOR JURY TRIAL
2 Plaintiffs hereby demand a trial by jury on all causes of action and issues so
3 triable.
4
5 Dated: March 28, 2008 LAW OFFICES OF JANET LINDNER
SPIELBERG
6
7 By: lsi
8 12400 Wilshire13oulevard, #400
Los Angeles), California 90025
9 Tel.: (310) j92-8801
Fax: (310) 278-5938
10
11 Jose]Jh N. Kravec Jr.
SPECTER SPECtER EVANS
12 & MANOGUE, P.C.
The 26
th
Floor Koppers Building
13 Pittsburgh, Pennsylvania 1521 9
Tel: (412) 642-2300
14 Fax: (412) 642-2309
15 Ira Spiro
SPIRO MOSS BARNESS LLP
16 11377 West Olympic Blvd., Fifth Floor
17 Tel: (310) 235-2468
Fax: (310) 235-2456
18
Michael D. Braun
19 BRAUN LAW GROUP, P.C.
12304 Santa Monica Blvd., Suite 109
20 Los Angeles, CA 90025
Tel: (310) 442-7755
21 Fax: (310) 442-7756
22
Attorneys for Plaintiffs
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41

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