08-02-15 samaan v zernik (sc087400) "non party" countrywide's reply on motion for osc contempt and...

8/14/2019 08-02-15 Samaan v Zernik (SC087400) "Non Party" Countrywide's Reply on motion for OSC contempt and sactio

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1 produced and, since March of 2007, has engaged in a campaign of harassment d i r e c t ~ d at2 Countrywide officers and employees to obtain additional documents and information in3 response to his subpoenas. Tbis case was resolved by summary judgment against Zernik six4 months ago, yet Zernik's harassment of Countrywide officers and employees in search of

additional discqvery continues unabated. Zernik has chosen to repeatedly violate the Court's6 Protective Order in his relentless pursuit of further discovery.'7 Zernik's. Opposition confirms that his harassment of Countrywide and violations of8 the ]Protective


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1 II with Countrywide's counsel and claimed that it was: "incredible" that Countrywide dqes not2 II have additional docmnents to support his claims of fraud. 1d.3 II Finally, Zernik served his Opposition on Countrywide three court days after the4 II st.atutorily-prescribed deadline and only one day before Countrywide's reply was to be filed. 1

II Zernik has shown no respect for Countrywide, this Court, or its rulings, and his unabated6 II a1..iempts to for


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1 Zernik thus calls for Countrywide and its offlcers to provide him with answers to his2 questions and t? engage with him in an exploration of the facts underlying the lawsuit. This is3 precisely the pdrpose of discovery in litigation, and Zernik has been calling for Countrywide's4 additional compliance with these demands for almost a year, long after Countrywide produced

its documents. Since March 2007, Zernik has persisted in harassing Countrywide and itsI6 officers and employees to obtain evidence of Countrywide's "fraud." Clearly unsatisfied with

7 the documents Countrywide produced in response to his four document subpoenas, Zernik8 has waged a y e ~ r - l o n g campaign of harassment directed at Countrywide's officers in the hopes9 of securing the answers and evidence only he believes exists. In July 2007, Zernik attbmpted

to take the deposition of Sandor Samuels, Countryv.ride's Chief Legal Officer, and Zernik's11 request was denied by the Court. The information Zernik is now seeking via harassirig tactics

)co 12 is exactly that v,;hich he was unable to discover by deposition. Zernik's harassment isl; 0 discovery has long since closed. Zernik should not be allowed to continue his attempts to a:l 'c00 16 bully Countrywide's officers into providing him witl-l the information he seeks without~ :

ellellC 17 consequence. Countrywide fully complied with Zernik's subpoenas many months ago and is(f )

18 not a party to this case, yet it has had to expend tens of thousands of dollars and cout;ltless19 hours dealing with Zernik's never-ending discovery-related harassment. This must stop now,

II and Countrywide should be left alone.21 II III. Zemik Continues To Violate The ProtectJlve Order22 II Even after Countrywide was forced to seek exparte relief to accelerate the heaiing date23 lion this motion due to Zernik's repeated violations of the protective order, Zernik has24 II continued to willfully violate the Court's Order. On January 25, 2008, Zernik again etnailed

II Angelo Mozilo, the Chairman of Countrywide's parent company, Countrywide Financial26 II Corp., and Sandor Samuels, Countrywide's Chief Legal Officer, accusing Countrywide of27 II "extensive fraud" with respect to "key documents" produced in response to subpoenas.28 II (Moldawsky De\=l., ~ 2 Ex. A.) Zernik referred to his "meet and confer" efforts with

SMOIDOCS6678I6.2 , 4

COUNTRYWIDE' S REPLY BRIEF


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1 II Countrywide's counsel and claimed that it was "incredible" that Countrywide does nQt have2 II additional documents to support Z e r n i k ' ~ ; claims of fraud. ad.) Zernik called upon Mozilo3 II and Samuels to follow their "corporate and persona] code of ethics and finally respond4 II regarding this ongoing fraud against me." ad.) Despite his knowledge of a Protective Order

1\ that has been ini place for over six months, Zernik continues to willfully and deliberately6 II violate the Order in an attempt to obtain infonYlation regarding Countrywide d o c u m ~ n t s and7 II to support his claims of fraud. Zernik' s harassing tactics are intended to badger Countrywide8 II officers into prqviding him with additional discovery in a case that has long since been9 "resolved. Zernik should not be allowed to continue with these bla tant violations of the

II Court's ruling Without consequence.11 II IV. Zemik Did Not Timely Serve C o u t i l l : Y w i d { ~ With His Opposition

to 12 P u r s u a n ~ to the Code of Civil Procedure Section 1005(b), all papers opposing a motion0C')N00 1O 13 "shall be flied with the court and a copy served on each party at least nine court days . . .' ) '


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1 II V. Conclusion2 tI Z e r n i k ' ~ Opposition largely ignores CountryW'ide's motion and continues to s ~ e k 3 II discovery where none exists. This case is over, particularly for Countrywide, who was never a4 II party and fully responded to Zernik's document subpoenas many months ago. Zerntk does

II not deny his harassment of Countrywide and its offtc:ers and employees - he only attempts to6 II justify his outrageous and inappropriate conduct. Zernik's harassment has gone on long7 II enough without consequence, and it is lime for the Court to step in and enforce its Order.

, I8 II Accordingly, Countrywide respectfully requests the Court to grant its motion and enforce the9 IlJuly 23, 2007 protective order against Zernik, sanction Zernik in the amount of$16,1170,

II declare that Countrywide has no further obligation to respond to Zernik's harassing11 II communications, and order that Zernik show cause why he should not be held in contempt of

12 II court and sanctioned accordingly.X>(" )";I0"-(")'


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1 II PECLARATIONOFJENNAMOLDAWSKY2 II I, Jenna Moldawsky, declare:3 1. Ii am an attorney licensed to practice law before all the courts of the S t ~ t e of4 UCalifornia. I am an associate in the law firm of Bryan Cave LLP, counsel of record for

II Countrywide I-tome Loans, Inc. ("Countrywide"). I have personal knowledge of the Ifacts set6 II forth in this d e ~ l a r a t i o n , and if called to testify, I could testify competently to such facts.7 II 2. On January 25,2008, Defendant Joseph Zernik ("Zernik',) emailed AhgeloI . I,8 II Mozilo, the Chairman of Countrywide's parent company, Countrywide Financial Co.t!P., and9 II Sandor Samuels, Countrywide's Chief Legal Officer, accusing Countrywide of "extensive

II fraud" with respect to "key documents." Zernik referred to his "meet and confer" efforts11 fI with Countrywide's counsel and claimed that it was "incredible" that Countrywide dGes no t

12 II have additional! documents to support Zernik's claims of fraud. Zernik called upon Mozilo(' ) o 00 13 II and Samuels to' follow their "corporate and personal code of ethics and filially respoild' ) ' 1s . (/ ) E 14- II regarding this ongoing fraud against me.'" A true and correct copy of Zernik's January 25,

~ II 2008 email is attached hereto as Exhibit A.o ro I1l 'c00~ 16 3. (:)n February 6, 2008, my office received a copy of Zernik's Opposition to

etICro 17 II Countrywide'S motion to enforce the protective order and for other relief via email at 1:38(/ )18 II p.m. and received a paper copy of the Opposition after 4:00 p.m. Bryan Cave has never19 II authorized service by email.

4. On February '7, 2008, my office received 98 pages of exhibits in support of21 II Zernik's Opposition via email.22 II I declard under penalty of perjury under the laws of the State of California that the23 II foregoing is true and correct.24 II Executed this 7th day of February, 2008, at Santa Monica, California.

26 ~ ~ / j A / W A 1 1 1 d ~ jinna Moldawsky2728

SM01DOCS667816.2 7COUNTRYWIDE'S REPLY BRIEF


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Directors, officers and employees must allow honesty, cornman sense and good judgmentto govern their conduct.As a condition of employment, each officer and employee is expected to comply with thisCode of Business Ethics and will be held accountable if h E or she fails to do so. Anyviolation of this Code,! or any conduct that violates any law, rule, regulation, or ethical orprofessional norm, is kubject to disciplinary action, up to and including termination ofemployment. Director's, officers and employees are also E ~ x p e c t e d to cooperate fully withany company audits Qr investigations and to answer all questions fully and truthfully. I t is aviolation of company policy to intimidate or impose any other form of retaliation on anyemployee who r e p o r t ~ any actual or suspected illegal or unethical conduct (however, anemployee who knowingly makes a false report may be SUbject to discipline).This Code prov,des the standards of conduct that gUide all directors, officers, andemployees of Countrywide. All of our directors, officers and employees must conductthemselves appropriately and seek to avoid even the appearance of improper behaVior.Our Ethics Statement serves as the benchmark by which each of our daily businessdecisions should be m ~ e a s u r e d and lies at the very core of the Countrywide way of doingbusiness:"A t Countrywide, ethical standards gUide our business conduct. We act lawfully andwith integrity in our dkalings with our customel"S, business partners, shareholders,and with each other."Compliance with Laws, Rules and RegulationsCountrywide directors, officers and employees are reqUired to comply with all applicablelaws, rules and regula:tions.The Recording and Reporting of Countrywide InformationAt CountryWide, we a ~ committed to ensuring that all business-related information isrecorded and reported accurately, honestly and in a timel'y manner. Directors, officers andemployees must ensure that information is reported truthfully and correctly, and alsoexercise diligence in e:nsuring that reported information is organized in a way that isunderstandable and dges not mislead or misinform those who receive the information. Ourpolicy relating to accuracy of company records extends to financial statements, loandocuments and servicing records prepared on behalf of our customers, and to informationprovided to government employees or officials.Nowhere is Countrywide's commitment to ethical standards more evident than in how wecommunicate our financial position and operational results. We strive to ensure full, fair,accurate, timely and understandable disclosure in reports i31t'ld documents that we file with,or submit to, the Securities and Exchange Commission and in other public communicationsmade by us. CountryWide officers and employees who prepare financial reports mustexercise the highest diligence in ensuring that there are no false or misleading statements.We also proVide our officers and employees the means to confidentially, anonymouslyreport concerns about accounting and auditing matters by calling 1-888-310-6761, which isoperated 24 hours a dpy by operators employed by an independent, third party helplineprOVider. The independent helpline provider may also be contacted by weblink atwww.tnwinc.com/webreportorbyU.S.maii at Countrywide Ethics, Accounting and Auditing:Helpline, c/o The Network, 333 Research Court, Norcross, GA 30092.

Unfair Business PracticesICountrywide's commitment to high ethical standards in it!':: business practices withcustomers, business partners and competitors is reflected in our dedication to candid andforthright communications about our products and services. Unfair and deceptive businesspracti.ces (e.g., the misuse of proprietary information or the misrepresentation of materialfacts) are strictly prohibited. CountryWide will engage in responsible lending and otherbusiness practices and; treat all customers fairly, without regard to gender, race, color,

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r e l i ~ l i o n , national origin, ancestry, pregnancy, age, marital status, sexual orientation, orphysical or mental disability.Antitrust and Anti-Competitive ActivitiesCountrywide offers its; products and services to customers in compliance with antitrust laws,which prohibit CountrYwide from entering into any agreement with its competitors torestrictthe system of free trade by fixing prices, a l l o c a t i n ~ J ten'itories or customers or refusing toprovide service to particular customers. Countrywide's customers conduct business with theCompany on the basis of its industry reputation. Our customers choose Countrywide astheir financial s e r v i c e ~ provider because of the quality of its services and products. ,Countrywide and its directors, officers and employees must, at all times, conduct business,openly and avoid any situation that might even create the appearance that Countrywide h a made any agreement that improperly impacts industry prices or the competition.Confidential and Proprietary InformationBecause of the natureiof our business, Countrywide possesses sensitive and confidentialinformation about our'customers, business pal1ners and thE! Company itself. All directors,officers and employees have a duty to protect against the disclosure of such informationunless disclosure is authorized and within the law.With respect to our c u ~ t o m e r s , who entrust us with c o n f i d ( ~ n t i a l personal and financialinformation, Countrywide is committed to safeguarding all such information, includinginformation gathered ~ h r o u g h applications and supporting documents, account informationobtained in the course! of our ongoing relationsl1ips with customers, and informationexchanged through t h Company's websites.Similarly, Countrywide's dirE!ctors, officers and e m p l o Y E ~ e s may be exposed to proprietary orotherwise confidential information about a business partner .. Countrywide directors, officersland employees accept responsibility for maintaining the confidentiality of confidentialbusiness partner information, neither using it fo r personal gain nor disclosing theinformation to others without proper authorization.Finally, Countrywide dIrectors, officers and employees may be privy to sensitive andconfidential information about their fellow employees or Countrywide as a whole.Unauthorized disclosure of such information is strictly prohibited.Improper InfluenceAt Countrywide, all cu$tomers and business partners receive the same high level ofassistance and s e r v i c e ~ CountryWide directors, officers and employees are strictlyprohibited from giving,: soliciting or accepting business courtesies or gifts intended toinfluence business dec,sions. All business decisions are to b E made on the basis of themerit of the transaction and in compliance with any legal and regulatory requirements.Countrywide also routirely conducts business with a variety of government agencies suchas the U.S. Department of Housing and Urban Development,. the U.S. Department ofVeterans Affairs, and a, host of state regulators, local and state bond authorities and others.What may be acceptable practice in the commercial business environment, such asprOViding nominal g i f t ~ and hospitality, may be inappropriate when managing relationshipswith government empl9yees or those who act on the government's behalf. All directors,officers and employees must adhere to the relevant laws and regulations governingrelationships with government: customers, employees, and officials. Countrywide directors,officers and employees: are strictly p r o h i b i t ( ~ d from improperly influencing the decisions of,or obtaining restrictedinforrnation from, government employees or contractors by offeringor promising to give money, gifts, (oans, rewards, favors or anything else of value.Additionally, Countrywide exercises proper protocol in bidding on all government contracts,which prohibits the requesting of information from government officials or agents thatwouldprovide the company with an unfair advantage.

Waivers of Code

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age, or

Any waiver of this Code fo r executive officers or directors may be made only by the Boardof Directors and must be promptly disclosed to shareholders.R e p o r t i n ~ 1 Unethical and Illegal Conduct/Ethics QuestionsCountrywide employees are required to report: megal or u n e ~ t h i c a l conduct to one of thef o l l o w i n ~ 1 : (1 ) To confidentially or anonymously report any ethics concern, including concerns aboutquestionable accounting or auditing matters, employees should contact the Ethics,Accounting and Auditing Helpline through one of the following methods:By telephone, at 1-888-310-6761 (staffed 7 days per week, 24 hours per day)By Weblink, at www.tnwinc.com/webreport:By U..s. mail, at Countrywide Ethics, Accountin9 and Auditing Helpline, c/o The Network,333 Research Court, Norcross, GA 30092(2 ) To report suspectE1d criminal activity, employees should contact the Fraud Hotlinethrough one of the following methods:IPhone: (877) CUFRAUD (877-283-7283)Email: [email protected]: (805) 9555888Mail: Countrywide.sFraudHotline.1757TapoCanyonRoad.Maii Stop SVW-469, SimiValley, CA 93063I t is not necessary tha,t employees independently confirm their suspicions before calling theFraud Hotline. In addition to reporting suspected criminal actiVity, employees may contactthe Fraud Hotline to ah questions and discuss concerns about potential criminal violations.Examples of suspicious actiVity that should be reported' to the Fraud Hotline include:Fraud (e.g. identity theft, mortgage loan fraud, check fraud, wire fraud or credit cardfraud)Insider abuse such as bribery, embezzlement, misuse of position or self-dealingMoney launderingViolations of the Bank Secrecy ActComputer intrusion(3 ) To report employment-related concerns (discrimination, harassment, compensationmatters, etc.), employees should contact their Employee Relations representative by callingthe HR Service Center. at 1-866-447-4232.Countrywide will take reasonable steps to maintain the confidentiality of any employee who:makes a non-anonymous report to the Ethics, Accounting and Auditing Helpline, the FraudHotline or Employee Relations.Similarly, Countrywide will take reasonable steps to maintain the confidentiality ofemployees about or against whom such a report has been made, unless or until it has beendetermined that: an actual violation has occurred.IT IS A VIOLATION OFiCOMPANY POLICY TO INTIMIDATE OR IMPOSE ANY OTHERFORM OF R E T A l . I A n O ~ ON AN EMPLOYEE WHO REPORTS ANY ACTUAL ORSUSPECTED ILLEGAL OR UNETHICAL CONDUCT. HOWEVER, AN EMPLOYEE WHOKNOWINGLY MAKES A FALSE REPORT MAY BE SUBJECT TO DISCIPLINE."I am writing to you in the spirit of your "corpor-clte" and "personal" Code of Ethics to requestthe following:a) A copy of the said Code of Ethicsb) Is the message in this web page extended also to non employees who wish to reportfraud by Countrywide?c) Is the message in this web page extended also to guarantee no retaliation against nonemployees who report fraud by Countrywide?d) Is there any waiver of the code regarding Samaan loan file-?e) Are the attached follOWing documents indeed products of fraud as I atlege, or am Imisguided in this regard?

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I have reported to the two of you in the past extensive fraud at the San Rafael Branch,under the management of IVlaria McLaurin. To ensure no plausible deniability, I again attachhere detailed description of the fraud relative to two key documents:a) an Underwriting Letter purported to be a vaili,d document from October 14, 2004 or midOctober 2004b) a Purchase Contract purported to be the product of fax transmission from Parks (State ofWashington) to San Rafael (State of California), which reflects wire/fax fraud against anindividual (Zernik) and also against a financial institution (Countrywide) across state lines.In Meet and Confer with Att Todd Boock (Legal Department) in early 2007, he claimed thatthere were no Internal Audit Report, External Audit Report, Security Report, ImagingReport, or any other similar reports regarding the Samaan loan applications. Even regardingPipeline Report fo r the! relevant months he claimed that I was requesting non-existingreports!I found such claims inc;:redible, since the blatant: violations of banking and other regulationsin this loan file could t)e detected by a child - starting from the double "DATE RECEIVED"stamps on the 1003 uniform residential loan applications. Moreover, I have reported such tothe Legal Department starting December 2006, and the Legal Department had reviewed theLoan File as early as Apgust 2006 in conjunction with preparation of my first subpoenaproduction.In a later note to Rabbi Bernhardt, it was claimed that thE?re was some report regarding thi$matter that found my allegations to be with "no merit at all". I would be grateful if youcould prOVide a copy of that report.In case you decide to (ook into this matter again, I have plenty of additional documents tosubstantiate the allegation of wire/fax fraud. In fact, most: of the Samaan loan file is theproduct of that schemE;? Moreover, it had to have an insider fo r a collaborator - most likelyMaria McLaurin herself'. Surely there is no indication of any change in her position as BranchManager since 2006.I t is only reasonable that the wire/fax fraud and! other fraud methods detected in this loanfile (there are quite a few of them) were not invented exclusively for Samaan's loanapplication. Such were, and probably still are prevalent in the San Rafael Branch, and arepossibly prevalent in other similar branches as well.Gentlemen, I call upon you to follow your "corporate" and "personal" code of ethics, andfinally respond regardirg this ongoing fraud against me, against the Federal Government,and against Share Holders and 401(k) benefit plans.Joseph ZernikP.5. This note is written in response to the message in the web page, to report suspicions ofwrongdoing. This is not part of any discovery procedure in past, present or futurelitigations. This note is also written in an effort to focus investigators at the Office ofCalifornia Attorney General and Illinois Attorney General on areas where they are likely tohave significant findings in their ongoing investiqations.* Countrywide here designates CFC, Inc and/or any of its subdivisions and affiliates, jointlyand/or sE!verallyCC:

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1) Office of California Attorney General Jerry Brown2) Office of Illinois Attorney General Linda Muli9an

Confidentiality Notice: The information contained in and transmitted with this communication is strictly;;onfidential, is intended only for the use of the intended recipient, and is the property of C o u n t r y ~ i d e Financial Corporation or its affiliates and subsidimies. If you are not the intended recipient, you Jehereby notified that any use ofthe information contained in or transmitted with the communication or1issemination, distributiob, or copying of this communication is strictly prohibited by law. If you havereceived this c o m m l m i c a ~ i o n in error, please immediately retum this communication to the sender: and1elete the original message and any copy of it in your possession.= = = = = = = = = = = = = = = = = = = = = - = = = = = = = = = = = = : : : : : : = = = = ~ - - = = = = = = = = = : = : : . = = = = = : = = = = = = = = = = : : = = : : = = - = = = = = - - - - - - = = = = = = = = = = = - = = = = = = = = = = = = = = = = = = : : ; : :

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PROOF OF SERVICE2 I am emPJloyed in the County of Los Angeles, State of California. I am over the age :of 18 and

not a party to the within action. My business address is 120 Broadway, Suite 300, Santa Mo*ica,3 California 90401-2305.4 On February 7, 2008, I served the foregoing document(s), described as NON-PAR:TY

COUNTRYWIDE HOME LOANS, INC.'S REPLY BRIEF IN SUPPORT OF ITSMOTION TQ ENFORCE THE JULY 23, 2007 PROTECTIVE ORDER AG4INSTDEFENDANT JOSEPH ZERNIKAND FOR OTHER RELIEF; DECLARATION6 OF JENNA MOLDAWSKY, on the interested party(s) in this action, as follows:7 Moe Keshavarzi, Esq.8 Sheppard Mullin Richter & Hampton, LLP333 South Hope Street, 48th Floor9 Los Angeles, CA, 90071-1448

FacsUnile: 213-620-1398t n k c s h a v a r z l ( a ~ s h e p p a r d t n u l l i n . c o t n

11 David J. P a s t e r n ~ k . a FacsunDe: 310-553-1540~ U dip@paslav;.com0 rn-'" 0OJ c00 16~ : : 2

Joseph Zernik2415 Saint George StreetLos Feliz, California [email protected]

Robert J. Shulkin, Esq.Legal Department

IColdwell Banker Residential Brokerage

08-02-15 samaan v zernik (sc087400) "non party" countrywide's reply on motion for osc contempt and...

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