0:10-cv-01465-JFA Date Filed 02/10/12 Entry Number 72 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

United States of America ex rel. )

Lynn E. Syzmoniak, ) C/A No.: 0:10-cv-01465-JFA
)
Plaintiff, )
)
v. ) EX PARTE MOTION OF THE
) UNITED STATES FOR A PARTIAL
Bank of America Corporation, et al., ) LIFT OF THE QUI TAM SEAL.  
) FILED UNDER SEAL PURSUANT
Defendants ) TO 31 U.S.C. § 3730(b)(2).
)
)

UNITED STATES’ MOTION TO PARTIALLY UNSEAL CASE

The United States, on behalf of itself and the States of Delaware, Hawaii, Indiana,

Minnesota, Nevada, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, and

Virginia, the District of Columbia, the cities of Chicago and New York respectfully move the

Court, pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(2), and in anticipation of a global

settlement that may encompass some of the claims and defendants in this action, for a partial

lifting of the seal in this case to allow the plaintiffs to disclose the names of various settling

defendants; the name of the relator; information about the claims asserted against the settling

defendants in this action; and, a redacted copy of the Second Amended Complaint that does not

disclose the non-settling defendants. Relator and the affected defendants concur in this request.

The States of California, Florida, Illinois, Massachusetts, Montana, and New Mexico

have informed the United States that they do not object to the requested relief.
 0:10-cv-01465-JFA Date Filed 02/10/12 Entry Number 72 Page 2 of 3

The United States seeks this partial lift of the seal for the limited purpose of allowing the

government, in its discretion, to disclose to the public an anticipated settlement agreement

among the government, the relator and the following defendants: : (1) Citimortgage, Inc, f/k/a/

Citi Residential Lending Services, Inc.; (2) Wells Fargo Home Mortgage d/b/a America’s

Servicing Company; (3) Bank of America as successor in interest to LaSalle Bank; (4) Citibank,

National Association; (5) J.P. Morgan Chase Bank, National Association, and (6) Wells Fargo

Bank, National Association. The basis for the Government’s motion is contained in the

Memorandum in Support, filed contemporaneously herewith. A proposed order is also submitted

for the convenience of the Court.

1. This case was filed by Lynne E. Szymoniak on or about June 4, 2010. The

Second Amended Complaint was filed on May 13, 2011. The current seal expires June 7, 2012.

2. The United States has discussed the filing of this motion with relator’s counsel,

and relator’s counsel has consented to the entry of this proposed order.

3. The United States and the various states identified herein request that the Court

retain its seal over the defendants which are not identified in this motion.

(SIGNATURE ON FOLLOWING PAGE)

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Respectfully submitted,

TONY WEST
Assistant Attorney General

WILLIAM N. NETTLES
United States Attorney for the District of South Carolina

By: s/ Fran Trapp

FRAN TRAPP
Assistant United States Attorney
U.S. Attorney’s Office for the District of South Carolina
1441 Main Street
Suite 500

Columbia, South Carolina 29201

(803) 929-3000

JOYCE R. BRANDA
RENEE BROOKER
WILLIAM C. EDGAR
Attorneys, Civil Division Commercial Litigation Branch
U.S. Department of Justice
Post Office Box 261
Washington, D.C. 20044

ATTORNEYS FOR THE

UNITED STATES OF AMERICA

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 0:10-cv-01465-JFA Date Filed 02/10/12 Entry Number 72-1 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

United States of America ex rel. )

Lynn E. Syzmoniak, ) C/A No.: 0:10-cv-01465-JFA
)
Plaintiff, )
)
v. ) EX PARTE MOTION OF THE
) UNITED STATES FOR A PARTIAL
Bank of America Corporation, et al., ) LIFT OF THE QUI TAM SEAL. 
) FILED UNDER SEAL PURSUANT
Defendants ) TO 31 U.S.C. § 3730(b)(2).
)
)

MEMORANDUM IN SUPPORT OF THE UNITED STATES’

MOTION TO PARTIALLY UNSEAL CASE

The United States, on behalf of itself and the States of Delaware, Hawaii, Indiana,

Minnesota, Nevada, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, and

Virginia, the District of Columbia, the cities of Chicago and New York respectfully move the

Court, pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(2), and in anticipation of a global

settlement that may encompass some of the claims and defendants in this action, for a partial

lifting of the seal in this case to allow the plaintiffs to disclose the names of various settling

defendants; the name of the relator; information about the claims asserted against the settling

defendants in this action; and, a redacted copy of the Second Amended Complaint that does not

disclose the non-settling defendants. Relator and the affected defendants concur in this request.

The States of California, Florida, Illinois, Massachusetts, Montana, and New Mexico

have informed the United States that they do not object to the requested relief.
 0:10-cv-01465-JFA Date Filed 02/10/12 Entry Number 72-1 Page 2 of 4

I. BACKGROUND

Ms. Szymoniak, the relator, filed this case and a parallel case in the Western District of

North Carolina, both containing allegations of mortgage fraud, under the False Claims Act

(“FCA”), 31 U.S.C. § 3729 et seq. (the “FCA”). The FCA provides for the award of treble

damages and civil penalties for, inter alia, the presentation of a false claim or the making of a

false statement in order to obtain a payment from the United States Government. 31 U.S.C. §§

3729(a)(1) and (2). Section 3730(b) of the FCA permits a private person, known as the “relator,”

to bring a qui tam action for the person and for the United States Government.” 31 U.S.C. §

3730(b)(1).

There are approximately 25 defendants, all residential mortgage backed security

depositors, servicers, trustees or document custodians, named in the Western District of North

Carolina.

Under Section 3730(b) of the FCA, qui tam complaints are filed under seal so that the

United States has “an adequate opportunity to fully evaluate the private enforcement suit and

determine both if the suit involves matters the Government is already investigating and whether

it is in the Government’s interest to intervene and take over the civil action.” See Legislative

history of the FCA, S. Rep. 99-345, 99th Cong., 2d Sess., reprinted in 1986 U.S. Code Cong. &

Admin. News 5266, 5289. Once the government intervenes, it has the primary responsibility for

prosecuting the action pursuant to the terms of 31 U.S.C. § 3730(c)(1). The lifting of the seal in

qui tam matters is expressly authorized by 31 U.S.C. § 3730(b)(3).

II. DISCUSSION

The Department of Justice has been negotiating a consent judgment and settlement

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agreement with the five largest residential mortgage servicers in the United States (the “Servicer

Settlement”). The Servicer Settlement was announced by the United States this morning,

February 9, 2012. The Servicer Settlement will resolve issues well beyond the claims asserted in

this case, but relator’s allegations here, and the claims to be released in the Servicer Settlement

overlap to an extent. When and if the Servicer Settlement is finally executed, included as part of

that arrangement will be a release by the United States and relator of some of her claims against

the following defendants: (1) Citimortgage, Inc, f/k/a/ Citi Residential Lending Services, Inc.;

(2) Wells Fargo Home Mortgage d/b/a America’s Servicing Company; (3) Bank of America as

successor in interest to LaSalle Bank; (4) Citibank, National Association; (5) J.P. Morgan Chase

Bank, National Association, and (6) Wells Fargo Bank, National Association (the Settling

Defendants). All of these defendants are affiliated with, or are the five big servicers involved in

the Servicer Settlement. Relator would be paid a statutory share of the portion of the Servicer

Settlement allocable to her claims by the United States. Relator has agreed in principle to the

Servicer Settlement. This motion is not a request for dismissal of the claims against the Settling

Defendants. That motion will follow later, if and when all of the relevant agreements have been

executed and are in place.

The Servicer Settlement is not complete and has not yet been executed. The parties

parties have reached an agreement in principle, however, and are close to final resolution of the

agreement. In anticipation of the completion of the Servicer Settlement, the United States seeks

this partial lift of the seal for the limited purpose of allowing the government, in its discretion,

and in the event that the Servicer Settlement is finalized, to disclose to the public the existence of

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this qui tam suit, the names of the Defendants, the claims asserted in this qui tam suit, the name

of the relator, and a redacted copy of the Second Amended Complaint.

The redacted Second Amended Complaint would reveal the names of and claims against

the Settling Defendants, and the name of the relator. The names of remaining defendants would

not be revealed.

Respectfully submitted,

TONY WEST
Assistant Attorney General

WILLIAM N. NETTLES
United States Attorney for the District of South Carolina

By: s/ Fran Trapp

FRAN TRAPP (#6376)
Assistant United States Attorney
U.S. Attorney’s Office for the District of South Carolina
1441 Main Street
Suite 500
Columbia, South Carolina 29201
(803) 929-3000

JOYCE R. BRANDA
RENEE BROOKER
WILLIAM C. EDGAR
Attorneys, Civil Division Commercial Litigation Branch
U.S. Department of Justice
Post Office Box 261
Washington, D.C. 20044

ATTORNEYS FOR THE

UNITED STATES OF AMERICA

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CERTIFICATE OF SERVICE AND NO SERVICE

I hereby certify that on the 10th day of February, 2012, the Motion was served on the

following, via deposit with the United States Postal Service, with sufficient postage placed

thereon: The Memorandum in Support was not served, as it has been provided to the Judge only.

Richard A. Hartpootlian, Esq.

Richard A. Hartpootlian, P.A.
1410 Laurel Street
Columbia, SC 29202

Preston O. Odom, III, Esq.

William K. Diehl, Jr., Esq.
JAMES, MCELROY & DIEHL, P.A.
600 South College Street
Charlotte, NC 28202

Reuben Guttman, Esq.

GRANT & EISENHOFER, P.A.
1920 L Street, N.W.
Washington, DC 20036

James J. Sabella, Esq.

Lydia Ferrarese, Esq.
GRANT & EISENHOFER, P.A.
485 Lexington Ave.
New York, NY 10017

AUSA Fran Trapp

United States Attorney’s Office
District of South Carolina
1441 Main St., Suite 500
Columbia, SC 29201

Donald H. Caldwell, Jr.

Assistant United States Attorney
227 West Trade Street, Rm 1650
Charlotte, NC 28202

s/ Fran Trapp
Fran Trapp
ASSISTANT UNITED STATES ATTORNEY