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Selected docket entries for case 1256892

Generated: 08/15/2013 08:31:30 Filed Document Description 08/14/2013 39 Main Document Page Docket Text 2 Submitted (ECF) Reply Brief for review. Submitted by Appellant Helen Galope. Date of service: 08/14/2013. [8743573] (LA) 40 Submitted (ECF) Reply Brief for review. Submitted by Appellant Helen Galope. Date of service: 08/14/2013. [8743579] (LA)

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Docket No. 12-56892 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HELEN GALOPE, on behalf of herself and all others similarly situated, Plaintiffs - Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2007 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2007-BR4; WESTERN PROGRESSIVE, LLC; BARCLAYS BANK PLC, BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING; OCWEN LOAN SERVICING, LLC, and DOES 4 through 10, Inclusive, Defendant - Appellee. APPELLANTS REPLY BRIEF TO DEUTSCHE BANK NATIONAL TRUST COMPANY, WESTERN PROGRESSIVE, LLC, AND OCWEN LOAN SERVICING, LLCS ANSWERING BRIEF APPEAL FROM THE U.S. DISTRICT COURT For the Central District of California, Santa Ana Case No. 8:12-cv-00323-CJC (RNBx) The Honorable Cormac J. Carney, Presiding Lenore L. Albert, Esq. SBN 210876 Law Offices of Lenore Albert 7755 Center Avenue, Suite #1100 Huntington Beach, CA 92647 Ph: 714-372-2264 Fx: 419-831-3376 Email: lenalbert@interactivecounsel.com Counsel for Plaintiffs Appellants, Helen Galope On behalf of herself and all others similarly situated

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TABLE OF CONTENTS

I. II.

INTRODUCTION ......................................................................................1 ARGUMENT..............................................................................................1 A. Article III Standing .......................................................................................1 B. Eight Key Pieces of Evidence Existed To Proceed with the Antitrust Claim ............................................................................................................2 1. Mrs. Galope Purchased a LIBOR Loan Product from the Defendants Who Were Manipulating LIBOR Market Rates .......................................................................................3 2. The Injury is Fairly Traceable To the Defendants ...................6 3. The Defendants Profited Through the MBS Trust Which Used LIBOR for The Interest Rate and Cap SWAPS ..............7 4. Mrs. Galope Had Standing as a Direct Purchaser Under Antitrust Law ..........................................................................8 a. Rational Expectations Test ............................................9 b. Consumer Expectations Test .........................................12 c. Direct Injury Test ..........................................................13 5. There was Evidence of a Contract, Combination or Conspiracy Between DBNTC and Barclays ............................15 C. UCL Claims Were Not Released, The Alteration of the Modification Document by Defendants Extinguished the Contract ..................................16 i. The Release is Void Against Public Policy .............................17 ii. DBNTC was Personally Liable for Manipulation ....................19 iii. The Injury-in-Fact Only Requires a Trifle ...............................19 iv. Restitution is Allowed Under the UCL ...................................20
ii

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v. Fraudulent Business Practices Do Not Require FRCP 9(b) Pleading ..........................................................................21 vi. Selling the Home During the Bankruptcy Stay Was a UCL Violation ........................................................................22 D. Evidence Supported a Genuine Issue of Material Fact on the FAL Claim ..........................................................................................................24 E. The Defendants Are Capable of Foreclosing Again in Violation of Mrs. Galopes Federal Rights ......................................................................25 i. Equity is Not Required for a Wrongful Foreclosure Claim ......................................................................................26 F. The Land Records Support Reversal of Summary Judgment on the Good Faith and Fair Dealing Claim ............................................................26 III. CONCLUSION ..........................................................................................27 IV. V. VI. STATEMENT OF RELATED CASES .......................................................28 CERTIFICATE OF WORD COUNT..........................................................29 PROOF OF SERVICE ................................................................................30

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TABLE OF AUTHORITIES Federal Opinions American Needle, Inc. v. NFL, 560 U.S. 183 (2010) .......................................... 15 Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) ......................... 9, 10 Columbia Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1443 (9th Cir. 1997) .................................................................... 9, 12 Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) ........................................... 6 Illinois Brick, 431 US 720, 728-29 (1977) .......................................................... 14 Menk v. Lapaglia 241 B.R. 896 (9th Cir. 1999) ................................................... 22 National Collegiate Athletic Association v. Board of Regents of Univ. of Okla. 468U.S. 85, 113 [104 S.Ct. 2948, 82 L.Ed.2d 70] (1984) ................. 15 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) .................................... 7 Studio Unions v Loews, Inc., 193 F. 2d 51 (9th Cir. 1951) ................................. 13 Summit Tech. v. High-Line Medical Instruments, Co. 933 F.Supp. 918(C.D.Cal. 1996) .................................................................................. 23 Waller v Blue Cross of Calif., 32 F. 3d 1337, 1341, fn. 6 (9th Cir. 1994) .......... 2, 4

California State Opinions California Savings & Commercial Bank v McIntosh, 216 Cal. 742 (1932) ......... 16 Cel-Tech Commns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999) ......... 24 Hewlett v. Squaw Valley Ski Corp., 54 Cal. App. 4th 499 (1997) ....................... 23 Hick v. Thomas, 90 Cal. 289 (Cal. 1891) ............................................................ 17 Kasky v. Nike, Inc., 27 Cal. 4th 939, 949-50 (2002) ........................................... 24 Klein v. Chevron U.S.A., Inc. 202 Cal.App.4th 1342 (2012) ............................... 21 Klein v Earth Elements, Inc., 59 Cal. App 4th 965, 969 (1997) ..................... 23, 24 Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323 .............................. 20 McKell v Washington Mutual, Inc., McKell, 142 Cal. App. 4th 1457 (2006) ..... 24 Morgan v. AT&T Wireless Services, Inc. 177 Cal.App.4th 1235 (2009) .............. 21 Reese v. Wal-Mart Stores, Inc. 73 Cal.App.4th 1225 (1999) ............................... 23
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Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553 (1998) ........... 23 Tunkl v. Regents of University of Cal. 60 Cal.2d 92 (1963) ........................... 17, 18 Walker v. Countrywide Home Loans, Inc. 98 Cal.App.4th 1158 (2002) ............... 23 California State Statutes Cal. Bus. & Prof. Code 17200 .......................................................................... 23 Cal Civ Code 51 ............................................................................................... 23 Cal Civ Code 1668 ............................................................................................ 17 Cal. Civ. Code 2954.4 ...................................................................................... 23 Cal. Penal Code 308 ......................................................................................... 23 Cal. Pub. Res. Code 4511 ................................................................................. 23

Federal Statutes 11 USC 362 ......................................................................................... 22, 24, 26

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I.

INTRODUCTION

This is a case of a homeowner who has been fighting to save her home from a fraudulent foreclosure. This brief focuses on Deutsche Bank National Trust Company (DBNTC), the trustee of the mortgage backed securities, Western Progressive the foreclosing trustee, and Ocwen Loan Servicing (Ocwen), the sub -servicer for Barclays d/b/a HomEq. and portions of the record that should have defeated the summary judgment motion. The brief addressing Barclays issues, primarily concern the issue of standing. Since, these defendants have filed a brief separate from the Barclays defendants, rather than reiterating the facts, plaintiff simply incorporates those facts by reference into this brief. FRAP 28(i); Waller v Blue Cross of Calif., 32 F. 3d 1337, 1341, fn. 6 (9th Cir. 1994). Any additional facts that are warranted in this brief will be brought out in the argument section, below. II. A. Article III Standing The defendants have filed separate Answering briefs in this appeal that overlap on the issue of Article III standing. The issue of Article III standing was a primary concern on the motion to dismiss and is fully briefed in the Reply Brief ARGUMENT

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addressing Barclays Answer. Rather than reiterating those points in this brief, Mrs. Galope incorporates that brief by reference as to the issue of Article III standing, and will limit any Article III standing issues in this brief to additional concerns raised by the Deutsche Bank entities. FRAP 28(i); Waller v Blue Cross of Calif., 32 F. 3d 1337. 1341, fn. 6 (9th Cir. 1994). B. Eight Key Pieces of Evidence Existed To Proceed with the Antitrust Claim Defendants contend there was no evidence of injury-in-fact to Mrs. Galope with regard to the antitrust claim. Mrs. Galope alleged that she was harmed as a direct purchaser of the LIBOR loan, and said purchase proximately resulted in her being overcharged, and the later default and loss of her home through foreclosure. There were eight key pieces of evidence to support a genuine issue of material fact existed to prove injury to Mrs. Galope: (1) expert Certified Forensic Accountant, Jay Pattersons report on the MBS trust (ER 2118-2120); (2) the Forward Writing Prospectus (FWP) 424b5 of the MBS trust filed by defendants with the SEC (ER 1396-1714 are the pages containing the definitions, identification of defendants, the terms, pooling and servicing agreement, Interest Rate SWAP and Cap SWAP agreements; pages 1720 -1988 are the identification of loans, loan terms and putative class members); (3) the Declaration of William Matz (ER 2067-69); (4) the undisputed declaration of Helen Galope (ER 20702

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2099); (5) the Oral Transcript of Bob Diamond of July 4, 2012 (ER 1998-2030); (6) BBC News article dated July 31, 2013 Libor scandal: Deutsche Bank admits some staff involved et al (ER: 2035-2040); (7) Admission of facts Appendix A of the Non-Prosecution Agreement dated June 26, 2012 between the USDOJ and Barclays Bank, PLC (ER 1304-1324); and (8) Order Instituting Proceedings Pursuant to Section 6(c) of the Commodity Exchange Act against Barclays PLC (ER 1326-1366). 1. Mrs. Galope Purchased a LIBOR Loan Product From the Defendants Who Were Manipulating LIBOR Market Rates Home loan origination expert, Bill Matz declared that it was standard industry response was Dont worry, well refinance you when a borrower like Mrs. Galope would be presented with a LIBOR loan product like the one in this case. (ER 2067) As to the LIBOR manipulation, he opined borrowers informed of the actual manipulation going on would not accept a LIBOR -based loan on the grounds it was implicit that the rates were based on independently determined index. (ER 2068) Mrs. Galopes uncontradicted testimony is that she expected a fixed rate loan, but a LIBOR loan was presented to her (bait-and-switch) and if she had known that Barclays was manipulating the LIBOR rate, she would have never taken the loan. (ER 2070).

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First, the record contained a report from expert Jay Patterson, CFE, a certified Forensic Accountant, examiner and analyst from Hot Springs, Arkansas which demonstrated that 7,533 loans were supposedly to be transferred to the MBS trust in 2007. (ER 2119). As of the time Mrs. Galope was opposing the motion for summary judgment, only 1,956 homeowners were still surviving in this toxic trust. That left only approximately 26% of the loans still surviving. Out of these 1,956 homeowners that were still surviving, 827 of those loans had to be modified (42%). So, if this court takes away the modified loans, the borrowers who were able to survive in this toxic set up were 1,129 borrowers or 15% of all borrowers. (ER 2119). These are the hard facts. The Mortgage Backed Securitized trust (MBS) her loan was allegedly transferred into, then had Interest and Cap SWAPs for the benefit of the provider (Barclays), the trustee (Deutsche Bank National Trust Company), the servicer (Barclays d/b/a HomEq Servicing), and the certificate holders. The Swap Agreement clearly lays out that Barclays [Bank PLC) as swap provider will pay the issuing entity (Barclays affiliate) 4.9381% to 5.2600% per annum, during the first 58 distribution dates. (ER 1480-1488) Then Barclays would pay itself, the servicers, trustee, and certificate holders with the proceeds from the supplemental interest account which would be the money from the SWAP. (424b5 s-90) 4

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The interest rate cap agreement provided that Barclays would pay the onemonth LIBOR rate to the certificate holders as a cap for the first 48 months (approximately first 2 years). By suppressing the LIBOR rate while concurrently charging Mrs. Galope 8.775% on her LIBOR loan product, Barclays and DBNTC guaranteed to make money for itself from Mrs. Galope and those similarly situated. There was zero risk in this setup because the LIBOR rate was not based on the market but it was being set by Barclays, DBNTC and other financial institutions. Mrs. Galope had no knowledge that her LIBOR loan was not based on an independent market rate. Going back to the prospectus, it clearly states that both the servicer and trustee make money from these funds in addition to Barclays as the provider. The stockholders were also able to make money from this arrangement. The only person who was stuck like a fly in a spider web was Mrs. Galope. She voluntarily flew into the web, with the expectation she could refinance her loan six months down the road. But she was not able to do that, and the reason for that, in substantial part, was due to the defendants collusion in artificially lowering the LIBOR rate. Both the Interest Rate and Cap SWAP terminated by 2012 on their own terms (after the initial 5 year period). 5

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The manipulation can also be seen by the term in the Agreement where it says if the servicer changes - then the agreement must be terminated. Barclays d/b/a HomEq was the servicer. The change in servicing rights would not have such a profound effect if the defendants did not intend to manipulate the servicing of the loans of the borrowers. 2. The Injury is Fairly Traceable To the Defendants Article III standing merely means that for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013). Mrs. Galope prayed for an injunction, damages, fees and costs for the foreclosure due to defendants conduct for the harms she sustained due to the antitrust allegations. (ER 672, 675, 676, 682) Defendants are not arguing that she was not seeking a remedy but that there is no causation (e.g. that the injury be fairly traceable to defendants conduct). They argue, as their co-defendants that the court should focus on her initial fixed interest rate of 8.775% of her loan. (RB 13) The injury is explained in the incorporated Reply Brief. Defendants fail to acknowledge that the proper focus here, is not on the injury, but who caused the injury. That is why the term fairly traceable is used. 6

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For an injury to be fairly traceable to defendant s conduct, merely means that the injury can be fairly traced to the defendant before the court and not some third party. For example in Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) , the plaintiffs were complaining of hospitals turning away indigent people in need of treatment. But the plaintiffs did not sue any hospitals. Thus, the issue of whether the harm complained of was fairly traceable to the defendants before the court and not some third party. Id at 60. Here, Mrs. Galope is complaining about the overcharges, the default and foreclosing on her home in a LIBOR loan product she was thrown into where the ones who created the loan and took her money were foreclosing for their benefit as they bet against her in the MBS trust. This is fairly traceable to the defendants who were the MBS trustee, servicer, provider, and foreclosing trustee on her LIBOR loan. 3. The Defendants Profited Through the MBS Trust Which Used LIBOR for The Interest Rate and Cap SWAPS The trustee, Deutsche Bank received money from the Interest Rate SWAP and Cap SWAP in the LIBOR MBS trust. (ER 1568-69, 1480-88) The provider, Barclays received money from the Interest Rate SWAP and Cap SWAP in the LIBOR MBS trust. (ER 1568-69, 1480-88)

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The servicers, Barclays d/b/a as HomEq and Ocwen also received from the Interest Rate SWAP and Cap SWAP in the LIBOR MBS trust. (ER 1568-69, 148088) The servicer pays the foreclosing trustee from this pool. (ER 1488 et seq Pooling and Servicing Agreement) One of the multiple smoking guns in the FWP is the Hypothetical Available Funds and Supplemental Interest Rate Cap Table which can be found at ER 1516 1522) There is not enough space to fully explain this in a brief but this is an example of how intertwined market LIBOR was tied to this MBS trust. Here a hypothecation was made assuming One-Month LIBOR and the Six-Month LIBR Loan Index each remains constant at 20% and indicates how much would be distributed and when. So it is not just that her loan was a LIBOR loan making her a direct purchaser of a LIBOR product, but her loan was placed in a MBS trust where the terms of that trust made her loan toxic because the defendants could further profit off of her, in excess of merely servicing rights so long as they could also control the market rate of LIBOR. Her harm is fairly traceable to the defendants in this case.

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4. Mrs. Galope Had Standing as a Direct Purchaser Under Antitrust Law Next defendants contend there was no antitrust standing and base it solely on Bill Matz declaration. (RB 13). a. Rational Expectations Test Defendants argue that new legal theories cannot be raised on appeal for the first time. (RB 16) New legal theories should be allowed in this case on the grounds the district court ordered the defendants to file a motion for summary judgment before an answer was even filed in this case. The summary judgment motion at issue was filed within one month of the third amended complaint being filed and approximately four months after the case was initiated. There was no time to do discovery or develop the case. The LIBOR manipulation orders did not surface until June 2012. This motion was determined by September 2012 and the case was over. Such issues are properly brought to the appellate panels attention for the first time on appeal because they are pure issues of law. Columbia Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1443 (9th Cir. 1997). Defendant contends plaintiff used the target area test for the first time on appeal and that this test has been discredited citing, Associated General Contractors of California, Inc. v. California State Council of Carpenters , 459 U.S. 519, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) (AGC). First the target area test 9

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is not mentioned in the plaintiffs brief. Second, none of the cases plaintif f cited in her brief at 27-28 are cited for the proposition that they are being discredited based on their use of the target area test in AGC. In Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983), the Supreme Court identified a number of prudential factors for determining whether an antitrust plaintiff has standing. "These factors include: (1) the nature of the plaintiff's alleged injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages." American Ad Mgmt., Inc. v. General Tel. Co. of Cal. , 190 F.3d 1051, 1054 (9th Cir. 1999) (citing AGC, 459 U.S. at 535). Here, the non-prosecution agreement and Order instituting proceedings by the Commodities Exchange Administration is sufficient to demonstrate that this is the type of injury anti-trust laws were intended to forestall. Incurring higher interest rate, losing money and property is the type of injury antitrust law are intended to forestall and as shown above the injury is directly related to the conduct. The loss of a home or being forced into default by the excess charges after a false promise of the ability to refinance to a lower rate in 6 months is not speculative. All of the data needed to apportion the damages is sitting in 10

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Pattersons report and in the business records of those managing the MBS trust. The antitrust scheme was complex, but not the damages. Finally, there is no risk of duplicative recovery. Either the person obtains the home or the money for it, if the home is lost. In a similar nature, Mrs. Galope alleged Barclays and other co-defendants devised a scheme where it represented that the true cost to borrow money was low as demonstrated by LIBOR being published in the Wall Street Journal. The same defendants then represented, through their agents, that borrowers did not need to fear entering into the LIBOR loans that were initially at a higher rate on the grounds they could refinance at a lower level (like the ones being published in the newspapers). In fact, defendants were selling high interest loans to borrowers who were more likely to default in times of economic hardship while they were artificially suppressing the true market rate that was being published in the Wall Street Journal. Even more egregiously, the same defendant Barclays bought SWAP agreements and bet against the homeowner, cashing out upon the homeowners default of their loan that they initially borrowed. Deutsche Bank National Trust Company, the co-defendant on this claim, was the MBS trustee. DBNTC is one of the 16 banks who manipulated LIBOR and was also making money on the Interest Rate and Cap SWAPS in the MBS toxic trust (along with Ocwen and even Western Progressive through the PSA). 11

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The plaintiff, Mrs. Galope, on behalf of herself and those similarly situated, alleged that the defendants' practices was a substantial factor which resulted in the foreclosures on their homes. It makes perfect sense. There is nothing in defendants brief to de monstrate Antitrust standing does not exist for each and every cause of action lodged against them in this case. b. Consumer Expectations Test Defendants argue that the proposition the consumer expectation test could be used in this area of law was not briefed before the district court so the appellate court should ignore this issue. (RB 13-14). But, this is an issue of pure law that was raised in the opening brief to assist this court in coming to the correct conclusion. The defendant has briefed a response to the issue and it would not prejudice the party to have this court consider it. Such issues are properly brought to the appellate panels attention for the first time on appeal because they are pure issues of law. Columbia Steel Casting Co., Inc. v. Portland General Electric Co ., 111 F.3d 1427, 1443 (9th Cir. 1997). Second, Defendants argue that no other court in the United States has used the Consumer Expectation Test on an antitrust claim for LIBOR rate (or other market rate) manipulation, so this court should not do so either. (RB 15)

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However, defendants fail to point to any other Circuit who has ever been confronted with an admitted price fixing scandal by 16 of the worlds largest financial institutions that were also creating the Notes that the borrowers were being placed, and on the back end, creating the MBS trusts which then allowed them to bet against the homeowner and make money off of them based on the market LIBOR interest rate, as is the case here. Courts are faced with new schemes all of the time. Not all schemes fall neatly into a certain category. Seeing how the ingredients create the harm is simple: Toxic loans + Toxic MBS trusts + Manipulation of the market rate = Default and foreclosure. Defendants summed up the reason why this panel should consider the test: because it is a test reserved for cases in which the everyday experience of the [consumer] permits a conclusion that the product[] violated minimum safety assumptions. (RB 15-16). c. Direct Injury Test None of the defendants briefed whether or not Mrs. Galope fit within one of the two direct injury groups. Defendant merely argued that the target area test was discredited. But AGC never addressed Studio Unions v Loews, Inc., 193 F. 2d 51 (9th Cir. 1951) This case has been cited 46 different times in this Circuit alone since it was published. It has never been overruled. 13

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Defendants have not addressed this issue or how Illinois Brick would apply. There simply is no application of the facts. The defendants keep going back to the modification. However, that modification agreement did not have the terms disclosed to Mrs. Galope until three months after litigation had commenced (half way through the entire life of the case). Second, the modification was another LIBOR loan product. Initially these same defendants represented to the court that the modification had an adjustable interest rate. Then after the argument was made, they changed positions and stated it was a fixed rate. The court allowed plaintiff to amend. (ER 2127-28) But this is all smoke and mirrors. The damage was already done at this point in time and Mrs. Galope was facing foreclosure. In Illinois Brick, 431 US 720, 728-29 (1977) the Supreme Court held that any benefit gained by the defendant through anticompetitive conduct which violates the federal antitrust laws is to be taken away from the wrongdoer by the direct purchaser. Here, the focus is on the money defendants gained from the interest rate SWAP and Cap SWAP in the MBS trust; the excess charges and fees from the foreclosure. Ocwen and Barclays, as the servicer also benefited from having these loans in the pipeline during default increasing in outstanding principal, thereby

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increasing their profits as servicers which are based on the bulk outstanding principal balance. 5. There was Evidence of a Contract, Combination or Conspiracy Between DBNTC and Barclays Defendants argue that there was no evidence of a conspiracy. (RB 18). The relevant test is whether there is evidence of a contract, combination, or conspiracy. American Needle, Inc. v. NFL, 560 U.S. 183 (2010) A contract, combination or conspiracy, 1, that is necessary or useful to a joint venture is still a contract, combination . . . or conspiracy if it deprives the marketplace of independent centers of decisionmaking, Copperweld Corp. v. Independence Tube Corp. (1984), at page 467. See National Collegiate Athletic Association v. Board of Regents of Univ. of Okla. (1984) 468 U.S. 85, 113 [104 S.Ct. 2948, 82 L.Ed.2d 70] [[J]oint ventures have no immunity from antitrust laws]. Any joint venture involves multiple sources of economic power cooperating to produce a product. And for many such ventures, the participation of others is necessary. But that does not mean that necessity of cooperation transforms concerted action into independent action; a nut and a bolt can only operate together, but an agreement between nut and bolt manufacturers is still subject to 1 analysis. Nor does it mean that once a group of firms agree to produce a joint product, cooperation amongst those firms must be treated as independent conduct. The mere fact that the teams operate jointly in some sense does not mean that they are immune. American Needle, Inc. v. NFL, 560 U.S. 183 (2010). As shown above, there was a vicarious admission in news articles where DBNTC admitted that some of its employees were involved in the price fixing scheme. It was well known that Deutsche Bank was a banking member that contributed to LIBOR with Barclays. The MBS trust lists DBNTC as the trustee 15

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and Barclays as the provider, initial Servicer and then Ocwen as the current servicer. The Non-prosecution agreement has admissions of Barclays also partaking in the same price fixing scheme, along with the Commodities order. Barclays and DBNTC do not dispute that they are separate competitive entities in the financial world. This type of joint venture was surely damaging, supporting this element of plaintiffs antitrust claim. C. UCL Claims Were Not Released, The Alteration of the Modification Document by Defendants Extinguished the Contract Defendants next group together the second, third, and fourth claim for UCL liability and state the claims due to the release in the modification that was faxed to Mrs. Galope on April 7, 2008. (RB 19) First, the district court never found that the release barred Mrs. Galopes claims. The modification failed to contain material terms such, namely the terms of the loan after April 1, 2013. In California Savings & Commercial Bank v McIntosh, 216 Cal. 742 (1932) the court found the entire mortgage was extinguished after the lender added part of the legal description to the loan documents after they were executed. The court noted that under California law that was an alteration, destruction, or x of a contract making it void and releasing the other person of all obligations.

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There is no dispute that Mrs. Galope signed a modification document that did not contain any terms beyond April 7, 2008. By adding in those terms four years later during litigation on the premise that the contract was faxed over on a legal size page, is an alteration of the document Mrs. Galope received and signed in 2008, thus extinguishing the entire agreement. It was undisputed all she returned to defendants was the portion she received which did not include those terms. Consequently, there is no effective release to enforce. Similarly there is nothing to integrate and it does not bar the oral promises made. (RB 25-26) 1. The Release is Void Against Public Policy Second, such a defense is void against public policy and will not be enforceable. Hick v. Thomas, 90 Cal. 289 (Cal. 1891), See also, Tunkl v Regents Univ. of Cal., 60 Cal2d 92 (1963). Releases for intentional conduct such as fraud are void and have been for a very long time as codified in Cal Civ Code 1668. As the California Supreme Court explained: The traditional skepticism concerning agreements designed to release liability for future torts, reflected in Gardner v. Downtown Porsche Audi (1986), at page 180, and many other cases, long has been expressed in Civil Code section 1668 (hereafter cited as section 1668), which (unchanged since its adoption in 1872) provides: All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his [or her] own fraud, or willful injury to the person or property of another, or violation of law, 17

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whether willful or negligent, are against the policy of the law. City of Santa Barbara v Superior Court 41 Cal 747 (2007). (See also Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92.) [emphasis added] Defendant manipulated the LIBOR rate for financial gain in violation of a myriad of laws making such conduct fraudulent. Defendant also faxed over 2 legal size pages as part of the modification agreement to plaintiff so the bottom of the pages containing material terms about repayment were cut off when the fax transmission was received on letter size paper which was also unfair and fraudulent. None of these actions can be released by agreement. These are acts of fraud. Second, defendants contend that Mrs. Galope did not contact HomEq for her the rest of the terms of the modification between April 2008 and June 2009. Defendants contend that this is proof she received the entire agreement. (RB 24). That is a leap this court should not take. Mrs. Galope declared she did not receive the terms of her modification. She even moved to amend her complaint because she relied on Defendants version of what those missing terms were in her First Amended Complaint and then defendant contradicted those very terms. (RJN). At the very least, this created a genuine issue of material fact which would have warranted the denial of summary judgment.

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Defendants try to explain their own forgery away by having the court look at their signatures. It is well known that Ocwen forges signatures on loan documents. Furthermore, plaintiffs version of the modification does not even contain the signature lines much less the signatures that Ocwen provides this court. There is no proof that such a document was ever transmitted to plaintiff by Ocwen. The fact Ocwen has a legal sized document in its possession proves nothing. In fact, it makes one wonder how they have a legal sized document when Mrs. Galope faxed her letter size document to them. 2. DBNTC was Personally Liable for Manipulation Defendants next contend that DBNTC is only being held vicariously liable. DBNTC never identifies who DBNTC believes it is being held vicariously liable for. (RB 22). As explained above, DBNTC was personally liable for the manipulation of LIBOR. Without knowing who DBNTC believes it is being held liable for, there is no way to understand or respond to defendants argument on this issue. 3. The Injury-in-Fact Only Requires a Trifle As explained in Kwikset, in order to have standing to pursue a UCL claim, the private party must have suffered a monetary or property loss. In essence, they must have suffered from some type of economic injury. The injury, however, does not have to be substantial in order to have standing. In fact, the UCL cause of 19

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action is commonly used in consumer class actions where a consumer has been nickeled-and-dimed which would make pursuing an individual private claim too costly. The Kwikset court confirmed that only an identifiable trifle of economic injury is required. Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323. As shown above, plaintiff alleged that she paid a higher interest, had her title clouded with a default, paid money to an attorney to try to fix it, she finally lost title completely, and although they rescinded the sale after litigation started, she is still facing foreclosure and is in imminent danger of losing her home to foreclosure. During this entire dispute, her loan is ballooning out of control due to the terms, and she is incurring extra charges and fees, too. More than a trifle of loss of money and property has been alleged, here. 4. Restitution is Allowed Under the UCL Defendant contends that restitution is not allowed. (RB 29) Restitution is not the same as damages. It is an equitable concept to restore Mrs. Galope. Defendants argument ignores that Mrs. Galope bought a loan that was illegal due to the antitrust violations. It was toxic. The modification was extinguished because the defendants altered it (forgery). Mrs. Galopes obligations were extinguished through the defendants own wrongful conduct. Second, recently the California Court of Appeal ruled in favor of the borrower in Glaski v Bank of America 2013 Cal. App. LEXIS (2013), at page 633. 20

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Glaski is relevant on the grounds that it demonstrates California appellate courts will consider the securitization process when there are concrete facts alleged, as here, that the defendant is not holding the loan (the note and deed of trust representing the debt obligation) as evidenced by the terms laid out in the 424b5 and pooling and servicing agreement. The court of appeal found that New York trust law, when read literally, did in fact make such transfers void in order to avoid adverse tax consequences to the investors. Consequently, the subsequent assignments or trustees deeds recorded in the California County Recorders office would be void, too. This is directly relevant here, where we have the plaintiff and some documents dated December 16, 2006 (not December 26, 2006). This would be outside the 90 day window to transfer the loan to this MBS trust. Mrs. Galope is entitled, at the very least to her payments made, and if equity so finds, to her title to her property. 5. Fraudulent Business Practices Do Not Require FRCP 9(b) Pleading Standards, but Even if it Did, this was a Summary Judgment Motion Defendants contend a fraudulent business practice under the UCL must be pled with specificity. (RB 30). California does not require UCL claims for fraudulent conduct to be pled with specificity. (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1257; see also Klein v. Chevron 21

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U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1381.) There is a split in the federal courts, but generally, only a complaint that has a separate fraud claim which requires specificity then requires the heightened pleading of FRCP 9(b). Even if the defendants were correct, this was a summary judgment motion. Moreover, the facts of who, what, where, and how were pled. 6. Selling the Home During Bankruptcy Stay Was a UCL Violation Finally, DBNTC, Ocwen and Western Progressive knew there was a bankruptcy stay and transferred her property during the stay. Thereafter, when she demanded the transfer back to her name, they refused until this lawsuit was filed and they were confronted with a temporary restraining order. Article III courts enjoy concurrent jurisdiction with the US Bankruptcy court in order to enforce violations of the stay. (Menk v. Lapaglia (9th Cir. 1999) 241 B.R. 896.) Violations of 11 USC 362 entitle plaintiffs to damages, including attorney fees and costs. It is irrelevant that these defendants were foreclosing. The automatic stay has no such exception and they were required to obtain an order from the court granting them relief from stay. Menk. Californias unfair competition law has three separate prongs. The UCL prohibits any unlawful, unfair or fraudulent business act or practice and unfair,

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deceptive, untrue or misleading advertising. (Summit Tech. v. High-Line Medical Instruments, Co. (C.D.Cal. 1996) 933 F.Supp. 918.) Under this law, a practice can be prohibited as unfair or deceptive even if not unlawful, and vice versa. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158; Cal. Civ. Code 2954.4. Because Cal. Bus. & Prof. Code 17200 is written in the disjunctive, it establishes three varieties of unfair competition acts or practices which are unlawful, or unfair, or fraudulent. Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, Unruh Civil Rights Act; Civ. Code, 51 et seq.) An unlawful business practice can be anything that can properly be called a business practice and that at the same time is forbidden by law. Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553 (1998); Cal. Penal Code 308. This prong of the unfair competition law allows a plaintiff to enforce a broad array of state and federal statutes, including consumer-protection statutes Hewlett v. Squaw Valley Ski Corp., 54 Cal. App. 4th 499 (1997); Cal. Pub. Res. Code 4511; antidiscrimination statutes; criminal statutes; and environmental statutes. Klein v Earth Elements, Inc., 59 Cal. App 4th 965, 969 (1997). The 1992 Amendment to 17203 made clear that the law expressly reaches prior and hence discontinued acts of unfair competition in addition to 23

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continuing conduct. Klein v Earth Elements, Inc., 59 Cal. App 4th 965, 969 (1997). As explained in McKell v Washington Mutual, Inc., McKell, 142 Cal. App. 4th 1457 (2006) [b]y extending to business acts or practices which are unlawful, the UCL permits violations of other laws to be treated as unfair competition that is independently actionable. [Citation] Even if the violation of another law does not create a private right of action, if the violation constitutes unfair competition, it is actionable. Id. at 1474-75 (2006); Kasky v. Nike, Inc., 27 Cal. 4th 939, 949-50 (2002). See Cel-Tech Commns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th at p. 180. Furthermore, there is no preemption issue if the state statute which was violated was created to enforce a federal regulation. McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1485. Consequently, Mrs. Galopes UCL claim based on the defendants violation of 11 USC 362 did not fail as a matter of law. The trustees deed upon sale, notice to the defendants in bankruptcy (ER 337), and order demonstrating the stay was in effect at the time of the sale all supported a denial of the summary judgment motion. (ER 337-349) The court erred, and the decision should be reversed.

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D. Evidence Supported a Genuine Issue of Material Fact on the FAL Claim Defendants contend there was no evidence DBNTC was involved in the publications. (RB) Plaintiff presented evidence of the LIBOR rates that were published, DBNTCs authorized agent telling the newspaper that some of their employees were involved in suppressing the LIBOR rates published in the Wall Street Journal, and the prosecutorial agreements, and other news articles. For a fresh case where discovery had not begun, this demonstrated a material issue of genuine fact existed, enough to defeat a summary judgment motion. (ER 19982030; 2035-2040; 1304-1324; 1326-1366) Defendant concludes that plaintiff did not address the issue of FAL in her opening brief. (RB 33). However, the FAL was addressed in pages 45-46. E. The Defendants Are Capable of Foreclosing Again in Violation of Mrs. Galopes Federal Rights Defendants contention is that these financial institutions can wrongfully take another persons property and then after the person has taken the time and expense to go to court, the defendants merely have to give back title during litigation in order to absolve it of all wrongdoing. (RB 34)

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However, this ignores the fact that the defendant is capable of doing it again. The court has jurisdiction to address any issue that can recur. Here, the defendants did not rescind their notice of default. Mrs. Galope faces imminent foreclosure. As shown above, they only did not have a right to foreclose in September 2011, but their contracts have been extinguished by their own bad conduct. Continuing to violate 11 USC 362 is nothing more than the type of harm that is part of a "pattern of officially sanctioned behavior" violating the plaintiffs' federal rights. LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985). 1. Equity is Not Required for a Wrongful Foreclosure Claim

Equity is not a precondition to recovery for wrongful foreclosure. See, Glaski v Bank of America, Pfeiffer v Countrywide Home Loans, Inc. 211 CalApp4th (2012), at page 1250, West v JPMorgan Chase Bank, N.A. 214 CalApp4th 780 (2013), and Jolley v Chase Home Finance 213 CalApp4th 872 (2013). F. The Land Records Support Reversal of Summary Judgment on the Good Faith and Fair Dealing Claim Defendants assert that breach of good faith and fair dealing lacks evidence. (RB 37). The deed of trust had a RESPA clause in it. (ER 302-320).The defendants chose to substitute themselves into that contract by way of substitution of trustee, declaring agency agreements in the Notices of Default, and assignments of the deed of trust. (ER 329-332, 334-345). 26

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Consequently, it is implied that defendants would comply with TILA. However, it failed to do so by sending Mrs. Galope a modification agreement that did not disclose the terms that were cut off from the fax. Defendants never explain why it took three years and one lawsuit to finally disclose those terms to Mrs. Galope. Mrs. Galope declared she did not obtain all terms of the modification. (ER 2070-2099) Regulation Z promulgated by the Federal Reserve Board under the Trust in Lending Act (12 CFR 226 et seq) mandates disclosure of those missing terms and it was implied that the defendants would provide them at the time of signing. It was surely implied that upon Mrs. Galopes notice, they would have supplied them at that time. Instead they waited until the middle of litigation to provide their terms. That was a clear breach and so supported. VII. CONCLUSION For the foregoing reasons, the summary judgment in favor of defendants should be reversed, and costs should be awarded to appellant. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

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/s/ Lenore Albert___________________ LENORE L. ALBERT, ESQ. Counsel for Plaintiffs Appellants, Helen Galope on behalf of herself and all others similarly situated

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STATEMENT OF RELATED CASES Plaintiffs/Appellants are not aware of the following cases pending in this Court that would be deemed related pursuant to Ninth Circuit Rule 28-2.6. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________ LENORE L. ALBERT, ESQ. Counsel for Plaintiffs Appellants, Helen Galope on behalf of herself and all others similarly situated

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CERTIFICATE OF WORD COUNT I certify that this brief complies with enlargement of brief size permitted by the Ninth Circuit Rule 28-4. The briefs type size and type face comply with Fed Rule of Civ Proc 32(a)(5) and (6). This brief has 6,332 words including this Certificate and excluding the portions exempted by the Federal Rules of Appellate Procedure 32(a)(7)(B)(iii), if applicable. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________ LENORE L. ALBERT, Esq. Counsel for Plaintiffs Appellants, Helen Galope On behalf of herself and all others similarly situated

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE: I declare that I am over the age of 18 years, and not a party to the within action; that I am employed in Orange County, California; my business address is 7755 Center Avenue Suite #1100, Huntington Beach, CA 92647. On August 14, 2013, I served a copy of the following document(s) described as: APPELLANTS REPLY BRIEF TO DEUTSCHE BANK NATIONAL TRUST COMPANY, WESTERN PROGRESSIVE, LLC, AND OCWEN LOAN SERVICING, LLCS ANSWERING BRIEF on the interested parties in this action as follows: See attached Mail List [ ] BY OVERNIGHT MAIL I caused such document(s) to be placed in preaddressed envelope(s) with postage thereon fully prepaid and sealed, to be deposited as Express/Priority Mail for next day delivery at Westminster, California, to the aforementioned addressee(s). [x] BY CM/ECF I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth pursuant to FRCP 5(d)(1). [ ] BY EMAIL I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by email at the e-mail address(es) set forth pursuant to agreement between counsel. [ ] BY FAX I caused such document(s) to be transmitted facsimile from the offices located in Westminster, California this business day to the aforementioned recipients. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct.

Dated: August 14, 2013 /s/ Lenore Albert__________________ Lenore Albert

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Mailing List For Defendant Western Progressive, LLC; Defendant Ocwen Loan Servicing, LLC and Defendant Deutsche Bank National Trust Company: Robert Norman, Esq. Edward Kramer, Esq. HOUSER & ALLISON 3780 Kilroy Airport Way, Suite 260 Long Beach, CA 90806 Telephone: (562) 256-1675 Fax: (562) 256-1685 Email: rnorman@houser-law.com Email: ekramer@houser-law.com

For Defendant BARCLAYS BANK, PLC; BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING: Scott H. Jacobs (SBN 81980) shjacobs@reedsmith.com Brandon W. Corbridge (SBN 244934) bcorbridge@reedsmith.com Margaret Anne Grignon (SBN 76621) mgrignon@reedsmith.com REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Tel: (213) 457-8000 Fax: (213) 457-8080 James Meadows jmeadows@bsfllp.com Jonathan D. Schiller jschiller@bsfllp.com Boies, Schiller & Flexner LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Tel: (212) 446-2300 32

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Fax: (212) 446-2350 David H. Braff braffd@sullcrom.com Yvonne S. Quinn quinny@sullcrom.com Jeffrey T. Scott scottj@sullcrom.com Matthew S. Fitzwater fitzwaterm@sullcrom.com Adam S. Paris Parisasullcrom.com Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Tel: (212) 558-4705 Fax: (212) 558-3588 Hon. Cormac J. Carney United States District Court Central District of California 411 W. Fourth Street, #1053 Santa Ana, CA 92701-4518 Attorney Generals Office: Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 (by 24 hour hand delivery)

(by US Mail)

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Docket No. 12-56892

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HELEN GALOPE, on behalf of herself and all others similarly situated, Plaintiffs - Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2007 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2007-BR4; WESTERN PROGRESSIVE, LLC; BARCLAYS BANK PLC, BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING; OCWEN LOAN SERVICING, LLC, and DOES 4 through 10, Inclusive, Defendant - Appellee. APPELLANTS REPLY BRIEF TO BARCLAYS BANK PLC AND BARCLAYS CAPTIAL REAL ESTATE INC. D/B/A HOMEQ SERVICING ANSWERING BRIEF APPEAL FROM THE U.S. DISTRICT COURT For the Central District of California, Santa Ana Case No. 8:12-cv-00323-CJC (RNBx) The Honorable Cormac J. Carney, Presiding

Lenore L. Albert, Esq. SBN 210876 Law Offices of Lenore Albert 7755 Center Avenue, Suite #1100 Huntington Beach, CA 92647 Ph: 714-372-2264 Fx: 419-831-3376 Email: lenalbert@interactivecounsel.com Counsel for Plaintiffs Appellants, Helen Galope On behalf of herself and all others similarly situated

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TABLE OF CONTENTS

I.

INTRODUCTION ......................................................................................1 A. Article III Standing ............................................................................. 7

II.

ARGUMENT................................................................................................ 9 A. Article III Standing Was Alleged In this Case...............................................9 B. Standing Under the UCL was Adopted from Article III .............................. 14 C. The Issue of Statute of Limitations is Jurisdictional So It is Not Waived ....................................................................................................... 15 D. Aiding and Abetting Was Tied to the UCL Claim ....................................... 20 E. Plaintiff Had Standing to Bring a Breach of Good Faith and Fair Dealing Claim ............................................................................................. 22 F. Fraud .......................................................................................................... 24

III. IV. V. VI.

CONCLUSION ..........................................................................................26 STATEMENT OF RELATED CASES .......................................................27 CERTIFICATE OF WORD COUNT..........................................................28 PROOF OF SERVICE ................................................................................29

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TABLE OF AUTHORITIES Supreme Court Opinions DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................................ 13 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .................................................... 9 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................... 9, 12 Ninth Circuit Opinions Columbia Steel Casting Co. v. Portland GE , 111 F.3d 1427 (9th Cir. 1996) ....... 16 DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000) ............................................ 22 Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) ................................................ 12 Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) ................................... 13, 25 Sherman v. SEC (In re Sherman), 491 F.3d 948 (9th Cir. 2007) .......................... 16 Von Koenig v. Snapple Bev. Corp., 713 F. Supp. 2d 1066 (E.D. Cal. 2010) ........ 24 Waller v. Blue Cross, 32 F.3d 1337 (9th Cir. 1994) .............................................. 2 California State Opinions Addison v. State, 21 Cal. 3d 313 (1978) .............................................................. 17 Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226 (1995) .............................. 26 Cowan v. Superior Court, 14 Cal. 4th 367 (1996) ............................................... 16 Glaski v Bank of America, 2013 Cal. App. LEXIS 633 (2013) ...................... 1, 8, 26 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) .................................... 15 People v. Toomey, 157 Cal. App. 3d 1 (1984) ..................................................... 21 Schulz v. Neovi Data Corp., 129 Cal. App. 4th 1 (2005) ..................................... 21 West v JPMorgan Chase Bank, N.A. (2013) 214 CalApp4th 780 .......................... 26

California State Statutes Cal. Bus. & Prof. Code 17200 (Deering) .......................................................... 21 Federal Rules and Statutes Fed. R. App. P. 32(a)(7)(B)(iii) ........................................................................... 28 12 C.F.R. pt. 226 (2012) ..................................................................................... 23
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I.

INTRODUCTION

This is a homeowner case about Mrs. Galope, a homeowner has been fighting to save her home from foreclosure. She was put into a toxic LIBOR loan product which was transferred to a mortgage backed securitized trust based on LIBOR drafted and controlled by the defendants. By the time Mrs. Galope filed her suit, less than 20% of the loans had survived that were transferred to this pool. Over 5,000 families were foreclosed on in this trust alone. Out of those that survived, 845 of them required loan modifications (or over 90% of the surviving loans were modified). (ER 2119) Defendants contend plaintiff lacks jurisdictional standing. Appellant contends she was injured by these defendants and the court can address her grievance. Glaski v Bank of America, 2013 Cal. App. LEXIS 633 (2013). There is an easy way to describe this case and a much more complex way to describe it. Simply stated, Mrs. Galope sought legal redress on the grounds defendants gave her a subprime high interest rate loan promising her she could refinance to a lower rate in six months. She believed their hype on the grounds the LIBOR rate was much lower than the LIBOR loan product she received. She is also suing because when she started to default, defendants promised her a modification, but the document she received did not have terms beyond April 1, 2013 in it. When

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HomEq refused to supply her with those material terms, she sought bankruptcy protection and eventually filed this lawsuit. The more complex version requires the court to look at the exotic nature of the LIBOR loan the defendants crafted; why Barclays and Deutsche Bank National Trust Company were manipulating LIBOR; and how the LIBOR rate would affect their profit to be gained from Mrs. Galopes loan under the terms of the mortgage backed securitized (MBS) trust that they created and then transferred her loan into. Barclays Bank plc and Barclays Capital Real Estate Inc. d/b/a HomEq Servicing (hereinafter Barclays) brief is smoke and mirrors. Defendants contention that plaintiffs brief was long in order to attempt to confuse the court, implying the defendants were able to address the issues with fewer words is a mirror. Plaintiff submitted one consolidated brief (63 pages); whereas defendants submitted two separate briefs, when combined, approximate the same page length (62 pages). Defendants contention that the excerpts were wholly improper on the grounds the record in this case exceeded 2,000 pages is a smoke screen on the grounds the co-defendants actually added 1,689 pages to the excerpts provided by the plaintiff in this case. Smoke and mirrors are a reflection of fear. There is substantial justification for that fear. 2

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Since, these defendants have filed a brief separate from the Deutsche Bank National Trust Company defendants, rather than reiterating the facts and argument with citation to the record, plaintiff simply incorporates those items by reference into this brief. FRAP 28(i); Waller v. Blue Cross, 32 F.3d 1337, 1341 n.6 (9th Cir. 1994). This brief will emphasize the standing issues and general facts. This case is about Mrs. Galope and her attempts to save her home from foreclosure. In 2006, she was already living in her home, but she needed to refinance her loan. So she went to her broker to obtain refinancing. She had a stable job as a professional engineer in the planning department for the California State Lands Commission. Yet, she was placed in an exotic subprime exploding ARM loan product manufactured only for the very wealthy. (Citations to the record are in the other brief) Even the defendants version of the Note (which plaintiff disputes as being the true note) clearly says: ADJUSTABLE RATE NOTE (LIBOR Six Month Index (as published in the Wall Street Journal) Rate Cap) 2 YEAR RATE LOCK, 5 YEAR INTEREST ONLY PERIOD (ER 295)

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A rate lock is an interest rate that the lender will give the applicant on a loan for a fixed period of time. The first payment was due in February 2007. Her first rate change was January 2009. She was paying interest only for the first five years. After that time, her loan payments would adjust aka explode and would be fully amortized over the remaining life of the loan (which means the monthly mortgage obligation would explode). The Mortgage Backed Securitized trust (MBS) her loan was allegedly transferred into, then had Interest and Cap SWAPs for the benefit of the provider (Barclays), the trustee (Deutsche Bank National Trust Company), the servicer (Barclays d/b/a HomEq Servicing), and the certificate holders. The Swap Agreement clearly recites that Barclays [Bank PLC) as swap provider will pay the issuing entity (Barclays affiliate) 4.9381% to 5.2600% per annum, during the first 58 distribution dates. (ER 1568-69; 1480-88) Then Barclays would pay itself, the servicers, trustee, and certificate holders with the proceeds from the supplemental interest account which would be the money from the SWAP. (424b5 s-90) The Interest Rate Cap agreement provided that Barclays would pay the onemonth LIBOR rate to the certificate holders as a cap for the first 48 distributions. By suppressing the LIBOR rate while concurrently charging Mrs. Galope 8.775% on her LIBOR loan product, Barclays and DBNTC guaranteed to make 4

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money for itself from Mrs. Galope and those similarly situated. There was zero risk in this setup because the LIBOR rate was not based on the independent market but it was being set by Barclays, DBNTC and other financial institutions. The loans were being serviced by Barclays and the Interest Rates were initially Fixed by Barclays in the LIBOR loan products like the one purchased by Mrs. Galope so the entire game was rigged. And it was rigged against Mrs. Galope. Mrs. Galope had no knowledge that her LIBOR loan was not based on an independent market rate. Going back to the prospectus, it clearly states that both the servicer and trustee make money from these funds in addition to Barclays as the provider. The stockholders were also able to make money from this arrangement. The only person who was stuck like a fly in a spider web was Mrs. Galope. She voluntarily flew into the web, with the expectation she could refinance her loan six months down the road. But she was not able to do that, and the reason for that, in substantial part, was due to the defendants collusion in artificially lowering the LIBOR rate. Both the Interest Rate and Cap SWAP terminated by 2012 on their own terms (after the initial 5 year period). The manipulation can also be seen by the term in the Agreement where it says if the servicer changes; the agreement is terminated. Barclays d/b/a HomEq 5

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was the servicer. The change in servicing rights would not have such a profound effect if the defendants did not intend to manipulate the servicing of the loans of the borrowers. (ER 1396-1988) Ms. Galope filed her action on March 1, 2012. By September, 2012 the court had dismissed her complaint and on that same granted the defendants summary judgment. Barclays requested that this case be joined with the in re LIBOR cases in New York in the MDL action. After this case was on appeal, the MDL panel found those separate groups of investors and municipalities lacked standing to sue. Barclays contends that although Mrs. Galope had a LIBOR Interest Rate Loan product, she was not injured because the interest rate on her loan exceeded the actual LIBOR interest rate which Barclays and Deutsche Bank artificially suppressed when she was paying on her loan. She ultimately defaulted before she could enjoy the benefits of the rate that was actually suppressed in the Wall Street Journal. But that only tells half of the story. It is like reading half of a book. The other half must be read in order to put it into context. The manipulation in conjunction with the terms of the MBS trust tell the whole story.

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The general news media proffered that Barclays manipulated LIBOR in order to make profits for SWAP traders. This MBS trust had both an interest rate SWAP and a cap SWAP. This means, that Barclays and DBNTC used the manipulation to make money by betting against the homeowner. The published LIBOR rate also had a profound effect upon the consumer. If the court flips the page, the court will see that peddling LIBOR rate loans to consumers like Mrs. Galope where the interest rate is initially fixed at a higher level than actual LIBOR only demonstrate that the consumer would reasonably expect either (1) that they could refinance at a lower rate in the near future; or (2) they would soon be enjoying a much lower and hence affordable, loan product. Consequently, in the reasonable consumers mind, the toxic loan would not do any harm. (ER 2067-2099) Here, Mrs. Galope was doomed to fail. By the time Mrs. Galope filed her suit, less than 20% of the loans had survived. Over 5,000 families were foreclosed on in this trust alone. Out of those that survived, 845 of them required loan modifications (or over 90% of the surviving loans). (ER 2119) These are hard undisputable facts contained in the record before this court.

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As a direct and proximate consequence, Mrs. Galope, and those similarly situated lost money, incurred extra charges and expenses, lost title to their property, and it was clouded by the recording of defaults which then damaged their credit and ability to use their home as collateral for other credit purposes. A. Article III Standing Barclays continues to insist that although Mrs. Galope purchased a loan based on LIBOR, she is not a direct purchaser with standing because part of the toxic loan product required Mrs. Galope to pay an initial higher interest rate. Consequently, in Barclays mind, this means she lacked sta nding and could not be harmed by Barclays conduct. The court agreed, and it is plaintiffs position that this logic is flawed. Glaski v Bank of America, 2013 Cal. App. LEXIS 633 (2013). Barclays is correct that the Mrs. Galope alleged it was unfair of Barclays to send over a modification agreement by fax that did not contain the material terms of the modification for the last 25 years of the life of the loan (meaning the terms of the modification from 2013 forward). Barclays does not refute that after litigation started, defendants initially stated the remaining 25 years were adjustable interest rate, and then several months later, changed the remaining 25 years terms to a lowered interest rate. Barclays contention is that Mrs. Galope received a modification which lowered her interest rate so there was no injury. This ignores the fact that when Mrs. Galope demanded the terms in 2009, Barclays answer was 8

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throwing Mrs. Galope into default. The default was a concrete injury to Mrs. Galope. In fact, Barclays then used that default to take title to Mrs. Galopes home. The added expense, charges, fees and interest to Mrs. Galopes loan during this time was an additional injury, not to mention forcing Mrs. Galope into bankruptcy. Therefore, even accepting the allegation that Barclays eventually disclosed the material terms to the modification in 2012, that was four years after the modification agreement was entered into. The damages associated with that unreasonable delay cannot be ignored. II. ARGUMENT

A. Article III Standing Was Alleged In this Case The District court dismissed every cause of action by way of a Motion to Dismiss or Summary Judgment on the same grounds: that plaintiff purportedly was not harmed by any of the Defendants conduct so she lacked standing. Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual case or controversy. Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013). Article III standing merely means that for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. Hollingsworth, 133 S. Ct. at 2659.

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At the pleading stage, general factual allegations of injury res ulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Here, plaintiffs claims were dismissed at the pleading stage. Defendants do not argue that a favorable decision would redress plaintiffs injuries. Instead, defendants insist that plaintiff fails to have Article III standing because plaintiff was not injured b y defendants conduct. (RB 13) However, plaintiff was not required to prove injury at this juncture, she merely needed to allege it. Standing under Article III usually arises in the context of a political question because the court is concerned with usurping the rights of other branches of government. Here, there is no such concern. Hollingsworth at 2661. In Hollingsworth v Perry, the United States Supreme Court had to determine whether the petitioners to the Ninth Circuit who were challenging the District Courts injunction prohibiting enforcement of Californias same -sex marriage ban under Proposition 8 had Article III standing. The United States Supreme Court found that the petitioners on appeal were interveners who were not enjoined nor were they petitioners who were being banned from having a same-sex marriage. Consequently, the United States Supreme Court found the appellants to lack 10

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Article III standing, because their interest was only a generalized grievance. Hollingsworth at 2662. The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial [***34] in nature, [], and ensures that the Federal Judiciary respects the properand properly limitedrole of the courts in a democratic society. Hollingsworth at 2667 (internal citations omitted).

Mrs. Galope is certainly seeking relief for her personal and particularized harm of excess rates, defrauded into believing she could accept the product because she would receive a refinance, and wrongfully losing title to her home by these defendants. Defendant narrows Article III standing down to one allegation of financial injury based on making over $60,000.00 in interest payments based on manipulat[ing] market LIBOR. (RB 11) First, that allegation is not a generalized grievance but a personal harm of the pocketbook. Second, plaintiff also alleged that unfairly made money off of plaintiff (ER 659); she incurred attorney fees of $5,600.00 (ER 664); she was forced into bankruptcy (ER 664-665); and she lost title to her home (ER 665-666). Article III standing is required for each cause of action pled. Plaintiff alleged an injury in each claim: 11

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Violation of the Sherman Antitrust Act (Price Fixing); Breach of Good Faith and Fair Dealing; and UCL 17200 - she was forced to pay interest on the LIBOR loan product substantially higher than those she would have paid in the absence of these violations and she was losing/has lost her home. (ER 672, 675, 676, 682) FAL 17500 - Plaintiff alleged the publication of the manipulated lower LIBOR rate in the Wall Street Journal led plaintiff to believe she could enter a high interest rate and refinance to a lower rate as represented by defendants agents at signing. This was basically the spider web she was lured into, and then became stuck. As a result she faced losing her property. (ER 684-685) Fraud - The fraud here was based on defendants pattern and practice and alleged the same harm as in the preceding causes of action. (ER 689-691). Plaintiff alleged she lost the opportunity to refinance her mortgage elsewhere when the real estate market was still thriving and when she still had equity in her home. (ER 690) All of these allegations of harm caused to Mrs. Galope were in addition to the harm of making over $60,000.00 in interest payments. (ER 691). As disclosed in the record, Mrs. Galopes case has absolutely nothing to do with using the court to attempt to usurp a political branch of government. Her 12

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grievances are not generalized and it is hard to fathom how the court could drill down to a conclusion that because Mrs. Galope never actually made a loan payment based on LIBOR (because her payments on her LIBOR loan were higher than the LIBOR rate advertised in the Wall Street Journal) that she lacked Article III standing. Moreover, Defendants fail to point to any case where a court reached a similar result under similar facts, Instead defendants merely relied on Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006); Lujan, 504 U.S. at 560-61; and DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) to outline the elements. Plaintiffs do not take issue with the elements, but with the application. The complaints Mrs. Galope alleges are similar in nature to those made by a group of homeowners in Maya v. Centex Corp., 658 F.3d 1060, 1065 (9th Cir. 2011). In Maya v Centex Corporation, Centex Corporation and other codefendants devised a scheme where it represented that it was building "stable family neighborhoods." In fact, defendants were selling homes to high risk buyers who were more likely to default in times of economic hardship. The plaintiffs, a group of homeowners in the neighborhood, alleged that the defendants' practices and the resulting foreclosures reduced the economic value of their own homes. Maya v Centex, at 1066

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The defendants argued that the plaintiffs had failed to adequately allege standing under Article III. Maya v Centex, at 1067. The Ninth Circuit found the plaintiffs had pled Article III standing by alleging that they paid more for their homes than they were worth at the time of sale, as well as alleging that the defendants' actions caused their homes to lose value above and beyond those losses caused by general economic conditions. Maya v Centex, at 1069, 1071. In a similar nature, Mrs. Galope alleged Barclays and other co-defendants devised a scheme where it represented that the true cost to borrow money was low as demonstrated by LIBOR being published in the Wall Street Journal. The same defendants then represented, through their agents, that borrowers did not need to fear entering into the LIBOR loans that were initially at a higher rate on the grounds they could refinance at a lower level (like the ones being published in the newspapers). In fact, defendants were selling high interest loans to borrowers who were more likely to default in times of economic hardship while they were artificially suppressing the true market rate that was being published in the Wall Street Journal. Even more egregiously, the same defendant Barclays bought SWAP agreements and bet against the homeowner, cashing out upon the homeowners default of their loan that they initially borrowed. The plaintiff, Mrs. Galope, on

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behalf of herself and those similarly situated, alleged that the defendants' practices was a substantial factor which resulted in the foreclosures on their homes. It makes perfect sense. There is nothing in defendants brief to demonstrate Article III standing does not exist for each and every cause of action lodged against them in this case. B. Standing Under the UCL was Adopted from Article III Defendants next contend that the District court dismissed plaintiffs UCL claims for lack of statutory standing. (RB 14) However, California borrowed the concept of standing under the UCL from Article III standing in federal cases. Consequently, if there is standing under Article III, there is standing under the UCL. As explained in Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 323 (2011), in order to have standing to pursue a UCL claim, the private party must have suffered a monetary or property loss. In essence, they must have suffered from some type of economic injury. The injury, however, does not have to be substantial in order to have standing. In fact, the UCL cause of action is commonly used in consumer class actions where a consumer has been nickeled and-dimed which would make pursuing an individual private claim too costly. The Kwikset court confirmed that only an identifiable trifle of economic injury is required. Kwikset Corp., 51 Cal. 4th at 323. 15

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Plaintiff alleged that she paid a higher interest, had her title clouded with a default, paid money to an attorney to try to fix it, she finally lost title completely, and although they rescinded the sale after litigation started, she is still facing foreclosure and is in imminent danger of losing her home to foreclosure. During this entire dispute, her loan is ballooning out of control due to the terms, and she is incurring extra charges and fees, too. More than a trifle of loss of money and property has been alleged, here. C. The Issue of Statute of Limitations is Jurisdictional So It is Not Waived Defendants contend that the district court dismissed plaintiffs FAL claim on the grounds it was time barred by the statute of limitations. (RB 18). Defendants then state that plaintiff waived her right to challenge that determination. (RB 18). Statute of limitations is a jurisdictional issue. For example, it is an issue that the parties cannot stipulate to. Cowan v. Superior Court, 14 Cal. 4th 367 (1996). Jurisdictional issues are never waived and can be raised for the first time in a reply brief. Sherman v. SEC (In re Sherman), 491 F.3d 948, 965 n.20 (9th Cir. 2007). Furthermore, this is an issue of pure law and will not prejudice the opposing party. Columbia Steel Casting Co. v. Portland GE, 111 F.3d 1427, 1443 (9th Cir. 1996).

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Here, the claim was not time barred because all claims were equitably tolled while Mrs. Galope was in bankruptcy. Mrs. Galope received the fax on or about April 17, 2008. She discovered the missing material term from the modification. When she could not get it rectified she sought advice of counsel and ultimately bankruptcy in January 2010. Mrs. Galopes claim was tolled while she was in bankruptcy. She filed an Adversary proceeding against the banks that was dismissed without prejudice. Approximately four months later, she went back to the bankruptcy court in July 2011. Defendants transferred title to her home. She then filed this lawsuit on March 1, 2012. An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar, if it (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. Norgart v. Upjohn Co. 21 Cal.4th 383, 408-409 (1999). Here, Plaintiff originally filed her complaint and this claim in the District court on March 1, 2012. The exact same set of facts as to the modification were dismissed without prejudice to re-plead in state court or an Article III court due to the US Bankruptcy courts lack of subject matter jurisdiction so the claims relate back to the filing date of the Adversary complaint in the U.S. Bankruptcy Court.

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"The relation-back doctrine deems a later-filed pleading to have been filed at the time of an earlier complaint which met the applicable limitations period, thus avoiding the bar Quiroz v. Seventh Ave. Center 140 Cal.App.4th 1256, 1278 (2006). Equitable tolling is a court-fashioned rule which applies in those situations in which the statute of limitations has run on a state court claim while the plaintiff has diligently pursued his or her remedies in an alternative forum. The doctrine is applied "to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court" Addison v. State, 21 Cal. 3d 313, 316 (1978), and can be applied to prevent a forfeiture in any situation in which the first action has failed to accomplish its purpose. Since the federal courts look to state law in order to determine statute of limitation, the equitable tolling rule should also be considered in a federal forum in conjunction with the limitations statute. The California Supreme Court held in Addison v. State of California, supra, 21 Cal.3d 313 (hereafter Addison) that the filing of a federal district court action suspended the running of the six-month statute of limitations within which to bring a suit against a public entity in state court. Like the Galope case, the federal proceeding was dismissed without prejudice to re-filing in another court. In Addison, the trial court sustained the defendants' demurrer to the state court action because the complaint was not timely 18

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filed. (Addison, supra, at pp. 315-316.) The California Supreme Court reversed that decision on the grounds that "the well-established doctrine of 'equitable tolling'" to relieve the plaintiff of an otherwise untimely filing applied. ( Addison, supra, at p. 316.) The Addison court stated: "courts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage. [Citations.]" (Addison, supra, 21 Cal.3d at pp. 317-318.) Application of the doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. These elements seemingly are present here. Finally, there is no policy reason which would require plaintiffs to file simultaneously two separate actions in US Bankruptcy court and elsewhere since 'duplicative proceedings are surely inefficient, awkward and laborious.' ( Addison, supra, 21 Cal.3d at p. 319.) (See also, Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924.) On April 7, 2008 Mrs. Galope received a fax of a modification with missing material terms. (ER 661) After that time Mrs. Galope noticed the terms were not stated after April 1, 2013. (ER 662) Mrs. Galope hired an attorney to assist and 19

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defendants filed a notice of default and started to foreclose on July 31, 2009. (ER 664) On January 15, 2010, Mrs. Galope filed for bankruptcy protection to bring the creditor of her loan to the bargaining table. (ER 665) She filed again in July 2011. (ER 665). On March 1, 2012 Mrs. Galope filed this action while she was still in bankruptcy and this action was stayed until that bankruptcy concluded. Mrs. Galopes claims were equitably tolled by the bankruptcy proceeding on the grounds she filed her action as an adversary action in the first proceeding of January 15, 2010. Only one year and eight months had passed at that point in time. Defendants were not able to record another notice of default until March 8, 2011 and there was only a four month span there in between the bankruptcy actions. Consequently, Mrs. Galope was within the three year time period. It was alleged that the same defendant was given notice of the claims and the bankruptcy to gather evidence to defend against the claim at this time. There is no argument that a borrower would in good faith seek to litigation in a bankruptcy forum and it was reasonable to do so based on the related pending bankruptcy proceeding . This is not the type of conduct that would make a court conclude an unreasonable delay. The district court proceeding was promptly.

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Consequently, the court should find that equitable tolling applies and Mrs. Galope was not prevented from maintaining a FAL claim based on the three year statute of limitations. D. Aiding and Abetting Was Tied to the UCL Claim Defendants contend that the Aiding and Abetting was not tied to a tort claim so the district court was correct in dismissing it. (RB 16). The claim is captioned Aiding and Abetting Violation of 17200. (ER 685). The claim for aiding and abetting was thus tied to a 17200 violation in order to survive a motion to dismiss. Cal. Bus. & Prof. Code 17200 (Deering) can act as the predicate claim for aiding and abetting. Schulz v. Neovi Data Corp., 129 Cal. App. 4th 1 (2005), transferred 56 Cal Rptr 3d 471 (2007), abrogated as stated Perfect 10, Inc. v. Visa Int'l Serv. Ass'n 494 F 3d 788 (9th Cir. 2007) (Consumer had adequately pleaded a cause of action against a credit card processing service for aiding and abetting the operation of an illegal lottery by a website. The complaint alleged that the processing service went far beyond merely processing credit cards and that it had acted with the specific intent of aiding and abetting and facilitating the website's illegal lottery operations); See also, .McKay v. Hageseth 2007 US Dist LEXIS 29436 (ND Cal 2007) (motion to dismiss denied because Section 17200 liability could be based on aiding and abetting unlawful business practices, by 21

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paying others to participate in a scheme to distribute dangerous drugs to patients sans appropriate examination.) As stated on page 43 - 44 of the opening brief, DBNTC has admitted that some of its staff was involved in this market manipulation. (ER 2037, 2039) A defendant need not know that the conduct was unlawful, but the defendant who has knowledge of the conduct and assists by aiding and abetting can be held liable, such as individual corporate officers or majority stockholders. People v. Toomey, 157 Cal. App. 3d 1 (1984). Consequently, if the appellate panel should find that the district courts dismissal of the UCL claim should be reversed, the aiding and abetting claim should be reversed, too. E. Plaintiff Had Standing to Bring A Breach of Good Faith and Fair Dealing Argument Claim Defendants assert that breach of good faith and fair dealing was never argued below, only standing. (RB 19). Their point on standing is well taken, but not completely accurate. An accurate statement is that Defendants moved to dismiss the good faith and fair dealing claim (and all claims in the complaint) solely on the grounds that plaintiff lacked standing. (Appellants opening brief was a brief combined with the motion for summary judgment that was granted.)

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This does not mean that Plaintiff is prevented from disclosing cases or regulations which demonstrate injury to the plaintiff when the defendants fail to act in good faith or deal fairly with her. Defendant contends that Article III standing cannot rest on a TILA-related injury. The Ninth Circuit found that injury-in-fact for purposes of Article III standing on the grounds the appellant suffered the loss of a statutory right under TILA. DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000) The deed of trust clearly states that the parties are bound by RESPA. (ER 302-320) Consequently, it is implied that defendants would comply with TILA. However, it failed to do so by sending Mrs. Galope a modification agreement that did not disclose the terms that were cut off from the fax. Defendants never explain why it took three years and one lawsuit to finally disclose those terms to Mrs. Galope. It would be very odd if the Ninth Circuit were to find a loan servicer or lender who refuses to disclose the material terms of a loan modification including the amount the borrower is supposed to pay and at what interest rate that would be at for 25 years on their loan, lacked standing on a good faith and fair dealing claim, yet Regulation Z promulgated by the Federal Reserve Board under the Trust in Lending Act (12 C.F.R. pt. 226 (2012) et seq) mandates such disclosure.

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Finally Defendants assert that the only claims in the breach of good faith and fair dealing claims are the LIBOR manipulation allegations and the missing fax page allegations. (RB 20) The missing fax page, which ended up being a legal size document faxed to plaintiff, hence cutting off the bottom pages of the document, is the allegation that the defendants failed to supply Mrs. Galope with the material terms of her loan. (ER 662-663 Plaintiff was shocked and concerned that her modification payments may change on April 1, 2013 contrary to what she was promised in her phone conversations with Taheera Franklin....Defendant placed material terms of the loan on the bottom three inches of the legal size document that were cut off through the fax transmission when it was printed out on letter size paper). There simply is no change as defendants suggest. F. Fraud Again, defendants contend that Mrs. Galopes loan was not tied to LIBOR. As plaintiffs demonstrated in the introduction of this brief, Plaintiffs loan was tied to LIBOR on the front end and back end of the loan. The Note itself was a LIBOR loan product Mrs. Galope purchased. Second, her LIBOR loan she purchased was then transferred to a MBS trust that was tied to LIBOR wherein the defendants could earn extra profits from its Interest rate SWAP and its Cap SWAP so long as Mrs. Galope paid in excess of

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the LIBOR rate published in the Wall Street Journal during the 58 distribution periods. Ms. Galope asserted that she would not have purchased this LIBOR loan product if she had known that her loan servicer could manipulate that rate. Allegations of representations from product labels and statements that, had consumers not been deceived by the labels, they would not have purchased the product, are sufficient to plead under Rule 9(b) in a fraud claim. Von Koenig v. Snapple Bev. Corp., 713 F. Supp. 2d 1066, 1077-78 (E.D. Cal. 2010). In Maya, 658 F.3d at 1071, the court found that a decrease in a homes value was injury-in-fact to support constitutional standing under Article III. Defendants contend that On March 29, 2013 the United States District Court for the Southern District of New York dismissed the plaintiffs claims based on antitrust violations due to lack of standing. Those four groups consisted of investors, pension funds, municipalities and distributors. Prior to that time, the same court found Mrs. Galopes antitrust claims were inapposite to the other four groups and sent Mrs. Galopes case back to the Central District of California. Thus, the court could infer that, Mrs. Galope, as the direct purchaser of the LIBOR loan product was the one group who in fact, had standing. She had standing for every reason those other groups did not. She was a direct consumer of the LIBOR loan product that the defendants were able to manipulate throughout the entire 25

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process from origination, through servicing, and default and foreclosure. As a direct victim, she deserves for the Ninth Circuit to find that she had standing to maintain her claims. Lenders are not immune from suits surrounding MBS trusts. Glaski v Bank of America, 2013 Cal. App. LEXIS 633 (2013). Plaintiff entered into the higher loan refinance on the grounds she had the rational expectation that she could refinance at a better rate on the grounds the market industry rate of LIBOR was lower. Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether the plaintiffs reliance is rea sonable is a question of fact. Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 1239 (1995). See also, West v JPMorgan Chase Bank, N.A. 214 CalApp4th 780 (2013) III. CONCLUSION For the foregoing reasons, the district courts ruling dismissing the case should be reversed and appellant should be awarded costs. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________ LENORE L. ALBERT, ESQ. Counsel for Plaintiffs Appellants, Helen Galope on behalf of herself and all others similarly situated

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STATEMENT OF RELATED CASES Plaintiffs/Appellants are not aware of the following cases pending in this Court that would be deemed related pursuant to Ninth Circuit Rule 28-2.6. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________ LENORE L. ALBERT, ESQ. Counsel for Plaintiffs Appellants, Helen Galope on behalf of herself and all others similarly situated

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CERTIFICATE OF WORD COUNT I certify that this brief complies with enlargement of brief size permitted by the Ninth Circuit Rule 28-4. The briefs type size and type face comply with Fed Rule of Civ Proc 32(a)(5) and (6). This brief has 5,899 words including this Certificate and excluding the portions exempted by the Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. Dated: August 14, 2013 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

/s/ Lenore Albert___________________ LENORE L. ALBERT, Esq. Counsel for Plaintiffs Appellants, Helen Galope On behalf of herself and all others similarly situated

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE: I declare that I am over the age of 18 years, and not a party to the within action; that I am employed in Orange County, California; my business address is 7755 Center Avenue Suite #1100, Huntington Beach, CA 92647. On August 14, 2013, I served a copy of the following document(s) described as: APPELLANTS REPLY BRIEF TO BARCLAYS BANK PLC AND BARCLAYS CAPTIAL REAL ESTATE INC. D/B/A HOMEQ SERVICING ANSWERING BRIEF on the interested parties in this action as follows: See attached Mail List [ ] BY OVERNIGHT MAIL I caused such document(s) to be placed in preaddressed envelope(s) with postage thereon fully prepaid and sealed, to be deposited as Express/Priority Mail for next day delivery at Westminster, California, to the aforementioned addressee(s). [x] BY CM/ECF I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth pursuant to FRCP 5(d)(1). [ ] BY EMAIL I caused such document(s) to be transmitted to the office(s) of the addressee(s) listed above by email at the e-mail address(es) set forth pursuant to agreement between counsel. [ ] BY FAX I caused such document(s) to be transmitted facsimile from the offices located in Westminster, California this business day to the aforementioned recipients. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct.

Dated: August 14, 2013 /s/ Lenore Albert__________________ Lenore Albert

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Mailing List For Defendant Western Progressive, LLC; Defendant Ocwen Loan Servicing, LLC and Defendant Deutsche Bank National Trust Company: Robert Norman, Esq. Brent Kramer, Esq. HOUSER & ALLISON 3780 Kilroy Airport Way, Suite 260 Long Beach, CA 90806 Telephone: (562) 256-1675 Fax: (562) 256-1685 Email: rnorman@houser-law.com Email: Bkramer@houser-law.com

For Defendant BARCLAYS BANK, PLC; BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING: Scott H. Jacobs (SBN 81980) shjacobs@reedsmith.com Brandon W. Corbridge (SBN 244934) bcorbridge@reedsmith.com Margaret Anne Grignon (SBN 76621) mgrignon@reedsmith.com REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Tel: (213) 457-8000 Fax: (213) 457-8080 James Meadows jmeadows@bsfllp.com Jonathan D. Schiller jschiller@bsfllp.com Boies, Schiller & Flexner LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Tel: (212) 446-2300 30

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Fax: (212) 446-2350 David H. Braff braffd@sullcrom.com Yvonne S. Quinn quinny@sullcrom.com Jeffrey T. Scott scottj@sullcrom.com Matthew S. Fitzwater fitzwaterm@sullcrom.com Adam S. Paris Parisasullcrom.com Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Tel: (212) 558-4705 Fax: (212) 558-3588 Hon. Cormac J. Carney United States District Court Central District of California 411 W. Fourth Street, #1053 Santa Ana, CA 92701-4518 Attorney Generals Office: Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230

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