ronald v bofa motion 3-28-2011 unlocked]

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Kenin M. Spivak (SBN 97996)Theodore Maloney (SBN 125094)Dennis M. Russell (SBN 118253)SML LLP450 North Roxbury Drive, Suite 700Beverly Hills, Califomia 90210Tel: 310-691-5811Fax: 310-691-5809E-mail : [email protected]

tmaloney @S ML lawgroup. comdrussell@S MLlawgroup. com

Christopher Tomaszewski (SBN 255061)Bridget Jones (SBN 256086)APEX LEGAL GROUP PC1801 Tribute RoadSacramento, California 95 8 1 5

Tel: (916) 270-2022Fax: (916) 644-6227E-mail: [email protected]

Attorneys for Moving Parties

T}RIGIF{AfuFIIED

F{AR e I ?CIir

f*ils,EN{iHLESEL]THRIL}R COIJRT

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

PAUL RONALD etc., et a1.,

Plaintiffs,

VS.

BANK OF AMERICA CORPORATION,etc., et al.,

Case No. 8C409444

[Assigned for all purposes toHon. William F. Highberger, Dept. 3071

NOTICE OF MOTION AND MOTIONTO REMOVE MITCHEL J. STEIN ASCO-LEAD COUNSEL FORPLAINTIFFS AND AS COUNSEL FORSPECIFIED PLAINTIFFS. TOCOMPEL STEIN TO TURN OVERENGAGEMENT AGREEMENTS ANDFOR AN ACCOUNTING;MEMORANDUM OF POINTS ANDAUTHORITIES; DECLARATIONS OFCHRTSTOPHER TOMASZEWSKI,KENIN M. SPIVAK. TED MALONEY

MOTION TO REMOVE MITCHELL J. STEIN

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AND BRIDGET JONES; EXHIBITS

Action Filed: March 12, 2009

Date:

Time:

Department: 307

Discovery Cut-Off: Not Set

Trial Date: Not Set

TO THIS HONORABLE COURT AND TO ALL PARTIES AND TO THEIR

ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on May 3, 2011, at 9:00 A.M. in Department 307 of the

above referenced court located at 600 South Commonwealth Avenue, Los Angeles, CA. 90005

Plaintiffs, through their counsel, SML LLP, Apex Legal Group P.C., Kenin M. Spivak,

Christopher Tomaszewski, Bridget Jones and Ted Maloney (collectively, “Moving Parties”)

will move this Court for an Order seeking the following relief (the “Requested Relief”):

(a) To relieve attorney Mitchell J. Stein (“Stein”) of his position as co-lead counsel on

behalf of Plaintiffs in this litigation;

(b) To relieve Stein and Erikson S. Davis (“Davis”) from rendering any further legal

services for clients who have retained or retain any or all of Jones, Tomaszewski,

Apex Legal Group P.C. (“Apex”), Spivak, Spivak Law Group, or SML LLP

(“SML”), except those plaintiffs who file and do not revoke a written objection

thereto within thirty (30) days after the entry of an order for the Requested Relief;

(c) To require Stein and Davis to produce to Moving Parties copies of: (1) all

correspondence with the clients for whom Stein is relieved from providing services,

(2) all correspondence with Defendants as to which Moving Parties were not copied,

(3) all discovery propounded on Defendants or received from Defendants, (4)

transcripts in hard copy and disc form for all individuals who have been deposed by

Stein or Davis in this action, and (5) all other information necessary or appropriate for

a smooth transition, all within sixty (60) days after the entry of an order for the

Requested Relief;

(d) To require Stein and Davis to deliver to Moving Parties accountings of their time in

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the matter for use in any lodestar computations made at the time the lawyers in this

matter become entitled to any fees, all within sixty (60) days after an entry of an order

for the Requested Relief;

(e) To require Stein and Davis to produce to Moving Parties or a third party designated

by this Court copies of all engagement agreements ever existing, whether proposed,

sent, received, signed or unsigned and all modifications, amendments, supplements

and replacements with respect thereto, whether proposed, sent, received, signed or

unsigned, by which either of them will or might render services and/or will or might

directly or indirectly receive financial benefits pertaining to all or any: (1) named

plaintiffs in this action, other than those plaintiffs who were disclosed and named on

the initial Complaint, First Amended Complaint or Second Amended Complaint, (2)

potential plaintiffs in this action and/or (3) potential plaintiffs in any other action

against all or any of the defendants in this action, within ten (10) days after entry of

an order for the Requested Relief;

(f) To require Stein and Davis to produce to Moving Parties copies of all literature or

other materials, except only personalized discussions in which Stein or Davis provide

specific legal advice (whether delivered electronically, by mail, or otherwise) used in

or in connection with the solicitation of the proposed plaintiffs set forth in the ex

parte notice sent by Davis on February 9, 2011 and any other plaintiffs proposed to be

added by amendment to this action during 2011; and

(g) To require Stein and Davis to produce to Moving Parties an accounting of any and all

financial benefits received or accrued directly or indirectly by either of them and/or

any of the family members, partners, associates, nominees, representatives or

designees of either or both of them, including, without limitation, benefits by way of

the services of lawyers, paralegals, secretaries and other support services, offices,

equipment and otherwise from, on behalf of, or appertaining to: (1) named plaintiffs

in this action, (2) potential plaintiffs in this action and (3) potential plaintiffs in any

other action against all or any of the defendants in this action, all within sixty (60)

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days after the entry of an order for the Requested Relief.

The Requested Relief is sought pursuant to Code Civ. Proc. g 128(a) and g 187 and the

Court's inherent authority and is necessary because Stein and Davis have abrogated their

working relationships with the legal team,placing at jeopardy the team's representation of

plaintiffs.

Plaintiffs' Motion is based upon this Notice of Motion, the attached Memorandum ofPoints and Authorities, the attached declarations of Kenin M. Spivak, Ted Maloney, Bridget

Jones and Christopher Tomaszewski and exhibits attached thereto, the Court's record in this case

and such fuither evidence as may be presented to the Court regarding this Motion.

Dated: March 28,2011 SML LLpSML LLP

Attorneys for Moving Parties

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TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................ 1

II. FACTS .................................................................................................................................. 2

A. Procedural History ............................................................................................................... 2

B. The Legal Team Ruptures................................................................................................... 3

III. ARGUMENT ..................................................................................................................... 8

A. This Court has the power, and indeed the obligation, to issue an appropriate order to

facilitate the proper and efficient administration of this case .................................................. 8

B. The legal team, as originally structured, is no longer functioning efficiently which will

adversely affect the team’s ability to effectively represent Plaintiffs ..................................... 10

C. Moving Parties are the originating lawyers for a majority of the Ronald clients and

may be the originating or co-counsel for nearly all of the Ronald clients .............................. 12

D. The legal team has grown and Stein is not required as co-lead counsel or as a counsel

with respect to clients who do not object to his discharge....................................................... 12

E. Granting relief in a timely manner will not only facilitate the efficient administration

of justice, but it will avoid known future pitfalls, saving future judicial resources and

protecting Plaintiffs. ................................................................................................................... 13

F. Moving Parties are entitled to an order compelling Stein to turn over all engagement

letters and to an accounting. ...................................................................................................... 13

IV. CONCLUSION ............................................................................................................... 15

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TABLE OF AUTHORITIES

Cases

Asbestos Claims Facility, et al., v. Berry & Berry, 219 Cal App. 3d 9 (1990) ........ 9, 10

Ferguson v. Lieff, Cabraser, Heimann & Bersntein LLP, 95 Cal. App. 4th

154 (2002) ..... 13

Hays v. Superior Court, 16 Cal. 2d 260, 264 (1940) ............................ 9

Lu v. Sup. Ct., 55 Cal. App. 4th

1264 (1997) ............................. 9, 15

Statutes

Code Civ. Proc. § 187 ............................................... 15

Code Civ. Proc. §128(a) .............................................. 8

Code Civ. Proc. §187 ................................................ 8

Rules

CRC Rule 8.18 ................................................... 11

CRC Rule 8.25(a).............................................. 11

CRPC Rule 3-700( C )(3) ............................................ 10

CRPC, Rule 1-400 ................................................. 11

Rule 3.400 ....................................................... 9

Rule 3.401 ....................................................... 9

Rule 9.40(a) ...................................................... 8

Section 4 ....................................................... 10

Standard 2.1 ...................................................... 9

Standard 3.10(a) ............................................... 9, 10

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This Motion is brought on behalf of four of the six lawyers in this action, who

collectively originated a majority of the plaintiffs: Kenin M. Spivak (“Spivak”) and Ted

Maloney (“Maloney”), currently of SML LLP (“SML”), Bridget Jones (“Jones”) and

Christopher Tomaszewski (“Tomaszewski”), of Apex Legal Group P.C. (“Apex”),1 SML and

Apex (collectively, the “Moving Parties”).2

The Moving Parties seek to relieve Stein as co-lead counsel, relieve Stein and Davis from

rendering services for the Moving Parties’ clients and obtain copies of applicable engagement

agreements and an accounting.

The Motion pertains to a rupture of the relationship between, on the one hand, the

Moving Parties, and on the other, Mitchell J. Stein (“Stein”) of Mitchell J. Stein & Associates

and Erikson M. Davis (“Davis”) of the Law Office of Erikson Davis.3 This rupture has impeded

the legal team’s ability to give 100% to our clients and will seriously erode the team’s ability to

do so for the future.

As discussed during the December 17, 2010 hearing by the Court, Bank of America

(“BofA”) counsel Keith Klein, Spivak and Stein, Spivak is co-lead counsel in charge of

pleadings and Stein is co-lead counsel in charge of discovery.4 Spivak’s responsibilities also

include directing research. Stein’s responsibilities also include procedural matters and liaising

with Stein-Spivak clients. However, to the Moving Parties’ knowledge, until February, 2011, all

1 Tomaszewski and Jones also recently became of counsel to SML.

2 By submitting this Motion, attached declarations and supporting documents, the Moving Parties

do not intend to waive and do not waive any privileges, including, without limitation, work

product protection.

3 Davis is also associated with the law firm of Kramer & Kaslow (or an affiliate thereof) and

with Mitchell J. Stein & Associates. See Spivak and Maloney declarations, annexed hereto.

4 In a status report filed on March 25, 2011 by Davis, without giving Moving Parties the

opportunity for prior review, Stein is referred to as “lead counsel.”

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counsel contributed to substantially all aspects of the case, consulted on and approved of each

other’s material contributions to the case and jointly developed and executed strategy.5 See

annexed Spivak declaration (“SD”) at ¶¶ 5-7, Tomaszewski declaration (“TD”) at ¶¶ 22, 24,

Maloney declaration (“MD”) at ¶ 3 and Jones declaration (“JD”) at ¶¶ 6, 8.

The Moving Parties do not by this Motion suggest that Stein is not a talented lawyer or

advocate, or that he has not contributed to this case. Rather, this Motion is focused on a lack of

civility, transparency and coordination with co-counsel that has reached a point where it is

impracticable for the legal team to function as a team, thereby materially impairing the ability of

counsel to fully represent the interests of the plaintiffs in this action as it proceeds.

While Moving Parties allege Stein is to blame for the ruptures, Stein might assert that

Moving Parties are to blame. Whatever the causes, the fact of the rupture is beyond dispute. As

a result, co-counsel can no longer effectively act together on behalf of the plaintiffs named in the

Fourth Amended Complaint (“4AC”) or plaintiffs who might be added to the action.

II. FACTS

A. Procedural History

On March 12, 2009, 17 individuals filed a complaint in this action in Los Angeles County

Superior Court. The plaintiffs were clients of Jones and Tomaszewski (partners in Apex) and

Stein. Apex originated 16 of the 17 plaintiffs. Apex and Stein agreed to work together, as

reflected in the caption of the complaint. TD ¶ 2.

As more fully explained in the TD, through the Second Amended Complaint, the caption

remained the same and Apex continued to originate most clients. Thereafter, in or about May

2010, Stein, with the approval of Apex, asked Spivak to become co-lead counsel responsible for

pleadings and research. Stein separately recruited Davis at approximately the same time. TD

¶¶ 3-6, SD ¶ 5 and JD ¶ 3.

Accordingly, the caption of all court filings after that time and until March 15, 2011

5 Except as described in this Motion and the annexed declarations: the co-counsel generally have

not been involved in each other’s interaction with clients and potential clients.

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consisted of Jones, Tomaszewski, Stein, Davis and Spivak. At the beginning of 2011, Spivak

formed SML. Maloney then was added to the caption as an SML attorney. MD ¶ 4.

On June 14, 2010, this Court ordered the plaintiffs to file the TAC. Spivak was the

principal drafter, assisted primarily by Maloney, but as with all other court filings to that time,

the entire team contributed to the TAC and approved of it. The TAC, filed on July 7, 2010,

named 249 plaintiffs. Spivak and Stein, assisted by their family members worked

collaboratively to qualify plaintiffs for the TAC based on criteria established by Stein and on the

understanding that the resulting clients would be their joint clients. Stein took responsibility for

delivering a Stein-Spivak engagement agreement prepared by Spivak to their prospective clients

and for executing and processing the agreements. Separately, Apex also qualified clients and

took responsibility for delivering a similar engagement agreement also prepared by Spivak to its

clients and for executing and processing those agreements. Neither agreement required clients to

pay a retainer or to reimburse costs, unless the action was successful. TD ¶ 9, SD ¶ 43.

Of the 249 named plaintiffs in the TAC, Moving Parties estimate that Apex originated

128 clients, Spivak, 10 clients, Stein, two clients, Davis one client and the Stein-Spivak

collaboration, approximately 108 clients. TD ¶ 11, JD ¶ 3.

As described at TD ¶¶ 12-13, Spivak directed the successful effort to remand the action

and the Plaintiffs’ ability through the TAC and opposition to BofA’s demurrer, to finally place

the case at issue on January 11, 2011. At that time, the Court certified for interlocutory review a

writ by BofA with respect to the Court’s overruling of the TAC’s first cause of action. BofA

filed a petition for a writ (the “BofA Petition”) on or about March 11, 2011.

B. The Legal Team Ruptures

By oral agreement and practice of the legal team, the plaintiffs are jointly represented by

Davis, Jones, Maloney, Spivak, Stein and Tomaszewski, with Spivak and Stein as co-lead

counsel, each with separate, but somewhat overlapping responsibilities. Regardless of

responsibilities, to the Moving Parties’ knowledge, until February 2011, all counsel contributed

to court filings and approved of those filings and other key aspects of the litigation. TD ¶ 7, SD

¶ 24, MD ¶ 3, JD ¶ 8.

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From late 2010, Spivak observed Internet postings regarding Stein, attorney Phillip

Kramer (“Kramer”), Kramer & Kaslow and K2 that included inaccurate and inappropriate

assertions. Spivak expressed concerns to Stein and made clear, among other things, that: (1) no

client could become a client in this action if there was uncertainty about that client’s provenance,

(2) as to clients with an appropriate provenance, after provision for a reserve for litigation costs,

Spivak and Stein were entitled to share in any retainers in accordance with their understandings,

and (3) Spivak needed copies of all Stein-Spivak retainer agreements and an accounting of any

income thereunder. 6 SD ¶ 14.

Stein denied any wrongdoing and also declined Spivak’s requests. On December 21,

2010, Stein emailed Spivak. He insisted that all Stein-Spivak clients were his clients alone and

asserted that providing copies of the agreements or an accounting would violate attorney-client

privilege. Stein also advised Spivak that Spivak’s positions could violate Spivak’s fiduciary

duties and subject him to liability. Thereafter, communications between Stein and Spivak

deteriorated further. SD ¶¶ 15, 17.

Late last year, Maloney rendered legal services for Stein and Kramer with respect to this

case and other mass joinder actions. By year’s end, their relationship also frayed. Stein then

sent emails to third parties that vilified Maloney and revealed information Maloney disclosed to

Stein in contemplation of Stein rendering legal services for Maloney. MD ¶ 7 SD ¶ 9.

Following the February 3, 2011, Court hearing in which BofA expressed concerns

regarding Internet postings and mailings purportedly involving Kramer, Stein and K2, each of

Spivak and Tomaszewski separately expressed their concerns to Stein. Thereafter, Stein at

various times refused to communicate with one or more of Jones, Tomaszewski and Spivak and

at various times threatened that he or “clients” would commence legal action against the

6 Moving Parties are not aware of a named plaintiff in this action who has paid a retainer. The

engagement letters prepared by Spivak did not include a retainer. However, the Moving Parties

have been advised that Stein modified the form to include a retainer. TD ¶ 31, SD ¶¶ 45-49, JD

¶ 13.

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foregoing and Maloney. 7 TD ¶¶ 20-21, SD ¶¶ 8, 15, 17, JD ¶ 5.

Over the last few months, Stein has repeatedly implied that he will cause third parties

with whom he has a relationship to commence legal actions against one or more of the Moving

Parties. TD ¶ 21, SD ¶¶ 8, 15, 17.

Regarding the 4AC, Stein advised his co-counsel that he or his office had completed

certain required tasks. He then went so far as to “instruct” Apex not to communicate with clients

they or Spivak had originated because he had taken care of the matter. Stein never delivered the

product he said had been completed. TD ¶ 19, SD ¶ 20.

Stein next asserted that Spivak and/or Apex were responsible for the tasks Stein did not

perform and threatened legal actions for their alleged failures. He has, of late, also repeatedly

complained that he is the only person doing any work, even as he apparently delegated to others

the work he alleged he was staying up all night to do and has excluded the team. TD ¶ 20, SD ¶¶

20, 52, JD ¶ 5.

Stein also has alternatively refused to sign written agreements with co-counsel, promised

to prepare and deliver agreements and stated that it was “unlikely” he would sign agreements.

TD ¶ 14, SD ¶ 29.

During a hearing on March 9, 2011, without naming him, Stein advised the Court that he

intended to move for the admission of Michael S. Riley (“Riley”) to appear pro hac vice.8 At no

time did Stein consult with Moving Parties regarding Riley’s involvement in this action. TD

¶¶ 29, 30, SD ¶¶ 21, 23, 30-31, MD ¶¶ 8-9, JD ¶¶ 8-9, 11.

Until February 2011, each member of the legal team had been accorded the opportunity

by the other members of the team to review, comment on and approve all important motions and

7 The broader situation of improper and inaccurate client solicitations involving mortgage

litigation prompted the California Department of Real Estate to issue a “Consumer Alert”

entitled “Fraud Warning Regarding Lawsuit Marketers Requesting Upfront Fees for So-Called

‘Mass Joinder’ or Class Litigation Promising Extraordinary Home Mortgage Relief.” See

Exhibit G to Spivak declaration

8 Stein repeatedly refers to Riley as the former head of the Florida antifraud division. Mr. Riley

does not appear to have served in such capacity. See SD ¶ 22 and Exhibit B to SD.

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other court filings. On February 9, 2011, without prior consultation with Moving Parties, Stein

and Davis sent a notice to BofA counsel for a proposed ex parte motion regarding the addition of

394 plaintiffs to the Ronald action. TD ¶ 23, SD ¶ 19, JD ¶ 7.

On February 28, 2011, for the first time, a material filing was made without consultation

with any of the Moving Parties when Stein and Davis filed an application for a temporary

restraining order (“TRO Application”) with respect to imminent foreclosures against certain

Apex-originated clients. Stein had informed Spivak that Davis was adapting a preliminary

injunction motion written by Spivak and assured Spivak that he would have ample time to

review and vet the draft TRO Application. TD ¶ 25, SD ¶¶ 25-26, JD ¶¶ 8, 9.

Instead of complying with the legal team’s general agreement and practice and contrary

to Stein’s specific assurances, Davis filed the TRO Application without review by Spivak or the

other Moving Parties of any draft or supporting research. Following two hearings, the Court

denied the TRO Application and certified the decision for interlocutory review. After the second

hearing, Stein and Spivak agreed that Stein would write the first draft of a petition (herein, the

“TRO Petition”) for Spivak’s review, oversight of additional research, revisions and approval.

TD ¶¶ 25-26, SD ¶¶ 27-28, MD ¶ 8, JD ¶ 8.

Thereafter, Spivak began work on the TRO Petition. He reviewed the research

undertaken by Stein’s office for the TRO Application, undertook additional research and emailed

to the team that research, an outline of issues to be researched for the TRO Petition and potential

bases for the writ. SD ¶¶ 27-28.

Following a hearing in this Court on the Defendants’ motion to compel and for sanctions

against Stein, Stein advised Spivak that he would send the draft TRO Petition to Spivak by

Thursday evening (March 10, 2011) or Friday morning (March 11, 2011), at “the latest.” When

Spivak did not receive the draft, he repeatedly emailed and texted Stein inquiring as to the status

of the draft. Stein never responded and later told Tomaszewski in a phone conversation that he

had no recollection of receiving any emails or texts from Spivak regarding the TRO Petition., TD

¶ 26, SD ¶ 28.

Without consultation with Moving Parties: (1) on March 14, 2011, Stein and Davis filed

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Applications for Riley to appear pro hac vice in the Appellate Court (the “Riley Applications”);

(2) on March 15, 2011, Stein, Davis and Riley filed a so-called “Preliminary Opposition (and

Memorandum) in Response to Defendants’ Petition and Peremptory Writ of Mandate or Other

Appropriate Relief” (the “Preliminary Opposition”); and (3) on March 15, 2011, Stein, Davis

and Riley filed the TRO Petition. TD ¶ 25, SD ¶ 30, MD ¶¶ 8-9, JD ¶ 8.

Stein and Davis deleted from the captions of each of the Court of Appeals filings the

remaining members of the Ronald legal team – Spivak, Jones, Maloney and Tomaszewski. In

their place (apparently before his pro hac application had been approved), Stein added Riley, a

stranger to this action. 9 TD ¶ 30, SD ¶¶ 18, 37.

Moving Parties learned of the Court of Appeals filings from a Riley Application emailed

to Jones and Tomaszewski and a casual comment made by Davis to Spivak when Spivak called

Davis to coordinate research for the BofA Petition. Despite repeated requests to Stein and Davis,

neither of them emailed (or otherwise provided) any of the substantive Court of Appeals filings

to Moving Parties. TD ¶¶ 25-29, SD ¶¶ 18, 30-31, MD ¶ 8, JD ¶¶ 8-9.

Then, Spivak again requested copies of the filings by email on March 21, 2011. Stein’s

reply made it clear that Stein would not provide copies of the Court of Appeals filings to the

Moving Parties. Further, Stein warned: “I believe many of the Ronald clients have or shall

imminently file suit against SML and Apex.” See Exhibit A to SD. 10

Though the BofA Petition unsurprisingly includes the Moving Parties in the service list,

the Moving Parties are excluded from the service lists for the Stein-Davis-Riley Court of

Appeals filings. See Exhibits C, D and E to the Spivak declaration.

9 According to a “White Paper” dated January 15, 2011 accessed on February 26, 2011, Riley is

apparently one of Stein’s partners in a legal marketing network called Hartford Dunn.

According to the White Paper, the purpose of Hartford Dunn is to enter into affiliate agreements

with lawyers nationwide who are interested in pursuing litigation pertaining to mortgages. See

Exhibit F to Spivak Declaration.

10 Sunday night, March 27, 2011, Stein sent an email to Spivak and Tomaszewski seeking

assistance with respect to a matter related to the TRO Petition. He attached a PDF of an

unsigned version of the TRO Petition to that email. TD ¶ 32, SD ¶ 35.

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Team cohesion and trust was further eroded by the Riley Applications. Rule 9.40(a) of

the California Rules of Court (“CRC”) provides, in part: “No person is eligible to appear as

counsel pro hac vice under this rule if the person is . . . Regularly engaged in substantial

business, professional, or other activities in the State of California.” Riley is ineligible to be

admitted pro hac vice. His admission also is illogical, since he focuses on business endeavors,

ended his litigation practice many years ago and is not admitted in California. SD ¶¶ 18, 22, MD

¶ 6.

The logical inference is that Riley’s name was added to the Court of Appeals filings to

give credibility to Riley’s marketing efforts on behalf of Hartford Dunn.

Within the last week, Stein and Davis filed an Opposition to Motion for Leave to

Intervene Filed by Asset Guardian Plan, Inc. without including Spivak’s comments and a Status

Report without first circulating it for review, despite a specific email discussion between Stein

and Spivak on that subject. Davis was copied on that email discussion. SD ¶ 38.

III. ARGUMENT

A. This Court has the power, and indeed the obligation, to issue an appropriate order

to facilitate the proper and efficient administration of this case

It is a well-recognized principle that this Court has statutory and inherent equitable power

to issue orders to implement the efficient administration of justice. The California legislature has

codified this principle by granting power to every court to provide for the orderly conduct of

proceedings before it. Code Civ. Proc. §128(a) provides in pertinent part:

(a) Every court shall have the power to do all of the following:

(1) To preserve and enforce order in its immediate presence.

(2) To enforce order in the proceedings before it, or before a person or persons

empowered to conduct a judicial investigation under its authority.

(3) To provide for the orderly conduct of proceedings before it, or its officers.

(4) To compel obedience to its judgments, orders, and process, and to the orders of a

judge out of court, in an action or proceeding pending therein.

(5) To control in furtherance of justice, the conduct of its ministerial officers, and of

all other persons in any manner connected with a judicial proceeding before it, in

every matter pertaining thereto.

Code Civ. Proc. §187 also provides in pertinent part:

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When jurisdiction is, by the Constitution or this Code, or by any other statute,

conferred on a Court or judicial officer, all the means necessary to carry it into

effect are also given; and in the exercise of this jurisdiction, if the course of

proceeding be not specifically pointed out by this Code or the statute, any suitable

process or mode of proceeding may be adopted which may appear most

conformable to the spirit of this Code.

The often repeated formulation of this Court’s power was first stated by the

California Supreme Court in Hays v. Superior Court, 16 Cal. 2d 260, 264 (1940).

There is nothing novel in the concept that a trial court has the power to exercise a

reasonable control over all proceedings connected with the litigation before it.

Such power necessarily exists as one of the inherent powers of the court and such

power should be exercised by the courts in order to insure the orderly

administration of justice.

This Court has broad discretion in issuing orders to ensure proper management of

this case and efficient administration of justice. See Lu v. Sup. Ct., 55 Cal. App. 4th

1264

(1997); Asbestos Claims Facility, et al., v. Berry & Berry, 219 Cal App. 3d 9 (1990).

Pursuant to Standards of Judicial Administration (“SJA”), Standard 2.1, this

Court has express broad case management authority to keep the proceedings efficient.

Standard 2.1 provides: “Trial courts should be guided by the general principle that from

the commencement of litigation to its resolution, whether by trial or settlement, any

elapsed time other than reasonably required for pleadings, discovery, preparation, and

court events is unacceptable and should be eliminated.”

This case has been designated as, a complex case pursuant to CRC Rule 3.400 and Rule

3.401. Because this case is a complex case, the Court has an additional obligation to act early to

see that it is efficiently administered. “In complex litigation, judicial management should begin

early and be applied continuously and actively, based on knowledge of the circumstances of each

case.” SJA, Standard 3.10(a). The Court’s broad authority and mandate to assertively ensure

efficient administration of a complex case such as this case are well established. See, e.g.,

Asbestos Claims Facility, et al., v. Berry & Berry, 219 Cal. App. 3d 9 (1990).

California courts also look to federal courts for guidance on the management of complex

civil litigation, and in particular with respect to appointment of lead counsel. See Asbestos

Claims Facility, et al., v. Berry & Berry supra. In Asbestos Claims Facility, et al., v. Berry &

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Berry, the court observed: “Several federal courts have concluded that in complex civil

litigation, the trial court’s inherent power extends to the appointment of general or liaison or lead

counsel to perform certain functions on behalf of several parties with common interests, and that

such an appointment does not interfere with a party’s right to select its own counsel.” 219 Cal

App. 3d at 20.

Consistent with SJA, Standard 3.10(a)’s admonition that case management “begin early

and be applied continuously and actively,” when it appears that an appointment of co-lead

counsel should be changed, the Court should act to make an appropriate change.

B. The legal team, as originally structured, is no longer functioning efficiently which

will adversely affect the team’s ability to effectively represent Plaintiffs

As is common in complex litigation, Plaintiffs comprise numerous individuals who

initially retained separate counsel (or sub-sets of the counsel in this case). To effectively and

efficiently represent the clients and administer the case, counsel coordinated their efforts and

forged a team. Pursuant thereto, counsel appointed Stein and then Spivak to be co-lead counsel.

Through the leadership of co-lead counsel, the case has been brought to this point.

However, as demonstrated above and by the annexed declarations, the communications

and working relationships among the Stein faction of Plaintiffs’ legal team and the remainder of

the legal team has fractured, with threats, unilateral acts and lack of consultation and approvals.

The California Attorney Guidelines of Civility and Professionalism (the “Guidelines”)

set the standard of civility in the practice of law in California and have been adopted by the State

Bar’s Board of Governors. Section 4 of the Guidelines provides: “An attorney’s

communications about the legal system should at all times reflect civility, professional integrity,

personal dignity, and respect for the legal system.” Under this section, an attorney” should not

disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel,

parties or participants when those characteristics are not at issue,” or “create a false or

misleading record of events.”

Pursuant to CRPC Rule 3-700( C )(3), a member should withdraw when “The inability to

work with co-counsel indicates that the best interests of the client likely will be served by

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withdrawal.”

Failing to provide or serve Moving Parties with the TRO Petition, the Riley Applications

and the Preliminary Opposition violates the CRC and imperiled the filings. CRC Rule 8.18

provides: “Except as these rules provide otherwise, the reviewing court clerk must not file any

record or other document that does not conform to these rules.” (Emphasis supplied).

CRC Rule 8.25(a) provides:

(1) Before filing any document, a party must serve, by any method permitted by the Code

of Civil Procedure, one copy of the document on the attorney for each party separately

represented, on each unrepresented party, and on any other person or entity when

required by statute or rule.

(2) The party must attach to the document presented for filing a proof of service showing

service on each person or entity required to be served under (1). The proof must name

each party represented by each attorney served.

Moving Parties are not seeking removal of any counsel in this case, but: (i) the un-

designation of one of the co-lead counsel for Plaintiffs, and (ii) the separation of the attorneys

into separate teams on behalf of their respective clients. It may be that the teams will be able to

coordinate their joint prosecution of the case, but the separation of the teams will, at least,

eliminate the expectations, acrimony and reliance of any member of the current team on any

other member of that team. That will be in the best interests of all clients.

Without considering whether Stein’s client solicitations or Hartford Dunn violate any

applicable law or rule, or whether there is anything amiss in any of Stein’s or Davis’ business or

legal relationships, the lack of transparency to the legal team during a period of heightened

scrutiny of these matters by BofA, the Department of Real Estate and others deprives Moving

Parties of the ability to monitor the circumstances in which they are providing legal services and

subjects them to the risk of misleading clients and prospective clients. That impairs their

credibility and erodes the client-lawyer relationship and with it the ability of all counsel to

effectively represent clients. See, e.g., CRPC, Rule 1-400.

Moving Parties are seeking to act in the best interests of all Plaintiffs by avoiding the

peril that arises from uncertainty and inconsistency. The issue in this Motion is not the quality of

any Court filing or decision to this date. Until recently, the team’s assignments, expectations and

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unity of purpose existed to best advance the common good of all plaintiffs. Animosity,

intimidation, opaqueness and uncertainty about what one counsel may do as a “lone ranger”

diminishes the strength of the team and imperils the outcome.

Counsel have entered into engagement agreements with clients by which they have

rights, duties and potential liability. If they are excluded from the decision-making process and

the development and execution of strategy, Moving Parties may fail to fully discharge their

duties and, in any event, clients may receive less service than they otherwise could and should

receive from a unified team that works together to maximize results.

Given the circumstances and dysfunction described herein, clients are best served by

discharging Stein as co-lead counsel and as counsel for clients who do not object to his

discharge. Then, without apparent authority or misplaced authority, Stein, Davis and Moving

Parties and their respective clients can work together, or not; but at least the cloud of uncertainty

and risk and intimidation will be lifted.

C. Moving Parties are the originating lawyers for a majority of the Ronald clients and

may be the originating or co-counsel for nearly all of the Ronald clients

Stein is not co-lead counsel because of any action by any client or even this Court. He is

co-lead counsel because of consensual designation as such by the other counsel in this matter,

particularly Apex.

Pursuant to their engagement agreements, Moving Parties have been engaged by not less

than 134 of the 247 plaintiffs in the Ronald action. The actual number likely is materially larger.

However, Stein has under his exclusive custody and control Stein-Spivak engagement letters

presumably returned by more than 100 of the plaintiffs added to the TAC and additional

engagement agreements for potential future plaintiffs. Stein has refused to provide these

engagement letters to the Moving Parties.

D. The legal team has grown and Stein is not required as co-lead counsel or as a

counsel with respect to clients who do not object to his discharge

Since the filing of this case, the legal team has grown. It started with the addition of

Spivak and Davis in May 2010 and then, shortly thereafter, Maloney. Now, with the formation

of SML, Moving Parties have a deeper bench of counsel, including, within SML alone, two

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litigators, each with more than 20 years of experience, and two other lawyers with extensive

litigation experience. Moving Parties can bring in additional lawyers, if necessary.

Stein and Apex had entrepreneurial drive in filing this case. This Motion does not allege

that Stein’s experience and wisdom would not be valuable in a cohesive, well managed,

transparent, mutually-respectful team with common objectives and focus. Rather, this Motion

suggests that regardless of how talented any one lawyer may be, animosity, inconsistency,

unilateral acts, opaqueness, disorganization and unaligned goals outweigh the talent and will

harm the best interests of our clients.

E. Granting relief in a timely manner will not only facilitate the efficient

administration of justice, but it will avoid known future pitfalls, saving future

judicial resources and protecting Plaintiffs.

The dysfunction among the Plaintiffs’ legal team will adversely affect Plaintiffs if the

Requested Relief is not granted. Further, clients also will be deprived of the leadership of the

lawyers of their selection. Indeed, a lack of clarity in Plaintiffs’ counsel’s roles can not only

prejudice clients’ interests, but also lead to future litigation. See, e.g., Ferguson v. Lieff,

Cabraser, Heimann & Bersntein LLP, 95 Cal. App. 4th

154 (2002).

Replacing Stein as co-lead counsel will not inhibit the representation of all Plaintiffs and

likely will cause only a brief interruption in case management as information, leadership and

responsibilities are re-assigned and experienced litigators are added to the team. Stein may

continue to represent those clients who engage him alone or insist on his representation. At

times, the separate plaintiffs’ legal teams may file joinders. They may cooperate (or be required

to do so) in assignment of responsibilities to avoid duplication of effort or additional burdens on

Defendants or the Court. Where counsel disagree, they will assert their independent positions. It

is not anticipated that this will unduly burden Plaintiffs, Defendants or this Court.

The time for the Court to take remedial action is now, before prejudice occurs to

Plaintiffs and to avoid any future readily avoidable litigation.

F. Moving Parties are entitled to an order compelling Stein to turn over all

engagement letters and to an accounting.

To properly represent their joint or separate clients, Moving Parties must be able to

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confirm their duties and responsibilities to, and their relationships with, their clients. Stein has

concealed both contractual and financial information from Moving Parties. It is critical that

there be complete transparency among counsel working on behalf of clients in this matter and

who would be entitled to share in a common pool of compensation derived from those clients.

Moving Parties are attempting to clarify the status of the engagement agreements entered

into as a result of the Stein-Spivak collaboration and the clients’ intentions. By the hearing of

this motion, the foregoing may be clarified. However, to the extent Moving Parties are unable to

reach any of the clients or the clients do not respond, Moving Parties require copies of the client

agreements returned to Stein and/or issued by Stein so that the parties can resolve their rights and

obligations and serve the best interest of clients, whether currently plaintiffs or prospective

plaintiffs. Moving Parties will not be able to reach clients who signed Stein-Spivak agreements

where the identities or other contact information of those clients are known only to Stein, unless

he produces the necessary information.

Without those agreements – including all versions issued, received and modifications,

supplements and replacements – Spivak has no way to know who was given an offer to retain

him, who attempted to retain him, who did retain him, who has discharged him, or any of the

facts or circumstances pertaining thereto. Without the solicitations pertaining to new proposed

clients, Moving Parties have no way to ascertain whether any misrepresentations were made in

the nature of those presented to the Court on February 3, 2011, or otherwise. Without the

requested information, Spivak has no way to know whether or how Stein responded to the

voicemails and emails Spivak forwarded to him.

In turn, clients who may have retained the team based in whole or in part on Spivak’s

participation may not know what has proceeded – or, if Stein has replaced Spivak in those

agreements, may not realize why that occurred or the implications thereof.

None of Spivak, Jones, Tomaszewski, SML, Apex, or Spivak Law Group has ever been

paid by or on behalf of any plaintiff or prospective plaintiff in this action; to the contrary, each of

the foregoing has expended their own funds and thousands of hours. Based upon reports to the

Moving Parties, Stein has collected fees and overhead directly and indirectly from clients,

1

TOMEZEWSKI DECLARATION

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TOMASZEWSKI DECLARATION

I, Christopher Tomaszewski, declare that:

1. I have personal knowledge of the following facts. If called to testify, I could and

would competently testify thereto based upon my personal knowledge.

1. I am an attorney at law duly licensed to practice before all courts of the State of

California. I am a partner in Apex Legal Group PC (“Apex”). I have been a partner in Apex and

Apex has been a counsel of record in the Ronald action since the filing of the lawsuit on March

12, 2009. 1

Procedural Background

2. On March 12, 2009, 17 individuals filed a complaint in this action in Los Angeles

County Superior Court. Sixteen of the original 17 plaintiffs were Apex clients. Apex and Stein

were introduced by Stein’s wife, the 17th

client, after she was referred to Apex for help with a

loan modification request. The bank refused to issue any modification or relief. Thus, Apex and

Stein agreed to work together on a lawsuit. The caption on the complaint showed the counsel for

all Plaintiffs as being Bridget Jones (“Jones”), Stein and me.

3. On or about June 12, 2009, 44 named plaintiffs lodged with the Court a proposed

First Amended Complaint (“FAC”). 43 clients were originated by Apex and one client by Stein,

though because counsel agreed to work together, no distinction was made. The caption again

showed the counsel for all Plaintiffs as being Jones, Stein and me.

4. On March 26, 2010, Plaintiffs filed their Second Amended Complaint (“SAC”). The

SAC consisted of 41 named Plaintiffs and retained the same caption as the prior complaints.

5. On May 14, 2010, on behalf of his clients and others, Kenin M. Spivak (“Spivak”)

proposed to intervene in this action because, he alleged, no progress had been made in getting a

good complaint on file. Judge Jones denied the application because it had been made ex parte.

6. Following rejection of the intervention, after consultation among counsel and with

1 In submitting this declaration, the declarant does not intend to waive and does not waive any

privileges, including, without limitation, work product protection.

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Apex’s approval, Stein invited Spivak to join the case as co-lead counsel with specific

responsibility regarding pleadings and research. Stein retained leadership of discovery,

procedures and certain administrative matters. Separately, Stein recruited Erikson Davis

(“Davis”) pursuant to a financial arrangement between them.

7. On May 24, 2010, Plaintiffs named James Agate as a defendant by Doe amendment.

Thereafter, Agate’s counsel, Phillip Kramer, exercised a CCP §170.6 peremptory challenge to

Judge Jones. The Defendants objected to the preemptory challenge, among other things

observing a prior relationship between Stein and Kramer. That objection was overruled by Judge

Carl West. The Ronald Action then was assigned to this Court.

8. Consistent therewith, on June 21, 2010, Plaintiffs filed an ex parte application for an

Order to Show Cause and for a Temporary Restraining Order. The Court denied the application.

The lawyers on that caption – for all Plaintiffs - remained the lawyers on the caption of all filings

in the Ronald action until about a month ago. Those lawyers were: Spivak, Stein, Jones, Davis

and me. About a month ago, Ted Maloney (“Maloney”) was added to the caption as an SML

LLP (“SML”) attorney. As I had been aware for many months as a result of our email

interaction, Maloney had been assisting Spivak since about the time Spivak joined the case. The

caption again changed far more profoundly when Stein and Davis secretly filed several pleadings

with the Court of Appeals, as described below, deleting Spivak, Jones, Maloney and me – and

adding Michael S. Riley (“Riley”), a stranger to this action.

9. On June 14, 2010, this Court ordered the plaintiffs to file a Third Amended

Complaint (“TAC”). Spivak was the principal drafter of the TAC, assisted primarily by

Maloney, though all members of the legal team also contributed to, and approved of, the product.

The TAC, filed on July 7, 2010, named 249 plaintiffs. Spivak prepared engagement agreements

to be used by Stein-Spivak and Apex, drafts of which were circulated among Spivak, Stein,

Jones and me and approved by all of us. The agreements drafted by Spivak did not require any

plaintiff to pay a retainer or to reimburse costs, unless the action was successful.

10. Apex has never been paid for or by any client to be included in the Ronald action.

To the contrary, we have expended considerable sums and thousands of hours, none of which

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will be reimbursed unless there is a recovery, or some other source of money.

11. I estimate that of the 249 named plaintiffs in the TAC, Apex originated 128 clients,

Spivak alone originated about 10 clients, Stein alone originated two clients (his wife and one

other), Davis originated one client and the Stein-Spivak collaboration originated about 110

clients.

12. On August 2, 2010, the Defendants lodged a Notice of Removal. Spivak directed

the successful effort to remand the case, including being the principal drafter of the remand

motion and reply, and arguing the motion before Judge Real.

13. After the case was remanded, Spivak similarly directed the response to BofA’s

demurrer and motion to strike and was the principal drafter of Plaintiffs’ opposition and reply.

He then successfully argued the motion in this Court, resulting in the Court’s overruling the

BofA’s demurrer in all material respects. However, the Court certified for interlocutory review a

writ by BofA with respect to the TAC’s first cause of action. BofA filed its petition for that writ

on or about March 11, 2011 (the “BofA Petition”).

Organization of Legal Team

14. When the Ronald action was filed, Apex agreed with Stein that Stein would be lead

counsel in court, subject to there being full and complete consultation with Apex and Apex

managing relationships with the Apex-originated clients. There were many discussions about

financial splits. In May 2010, when Spivak joined the legal team, I proposed to have all lawyers

sign an agreement. Stein refused. He insisted that “our agreement” stood without involving

Spivak. Stein thereafter repudiated our agreement. Stein and I finally again reached agreement

on September 16, 2009, though Stein again refused to put our agreement in writing. He then

again repudiated our agreement and proposed unacceptable terms. To this day, Stein has refused

to agree to our financial arrangements and as recently as a few weeks ago emailed me to advise it

was “unlikely” he would agree to put anything in writing.

15. Nonetheless, by oral agreement and practice of the legal team – until the repudiation

of our agreements and practices by Stein and Davis over the last month – all plaintiffs have been

jointly represented by all counsel. At first, that meant Apex and Stein. Later, Spivak and Davis

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joined the team and then Maloney. Generally, Davis works for Stein and has also assisted

Spivak, while Maloney generally works with Spivak, though he has also assisted Stein.

However, to the best of my knowledge, until February (and excluding client solicitations) all

team members have contributed to court filings and other important aspects of the case and all

team members have approved of the actions of which we have had prior knowledge.

16. As the originating counsel for a majority of the plaintiffs, Apex designates (and has

the right to withdraw) “lead counsel” positions. At first, Apex designated Stein. Then, at Stein’s

recommendation and based on Apex’s independent investigation of Spivak, Apex agreed to split

the lead counsel position between Stein and Spivak because it would serve the best interests of

our clients. Events and Spivak’s temperament, wisdom and consultative nature since that time

more than justified our confidence in Spivak. By contrast, events and Stein’s temperament,

methodologies and threats have raised grave doubts about Stein’s transparency, civility,

collaboration and ability to lead.

17. Commencing in or about late November, I noticed a deterioration in Stein’s

relationship with Spivak. On a number of occasions, Stein sent the legal team agitated,

inappropriate and false attacks on Spivak.

18. Following the February 3, 2011 Court hearing in which BofA expressed concerns

regarding Kramer, Stein and K2, I expressed my concerns to Stein. Thereafter, Jones and I

decided to affiliate with SML LLP as “of counsel” while continuing Apex as a separate law firm.

19. At about the same time, Spivak had requested the legal team’s support with respect

to certain matters necessary to prepare the Fourth Amended Complaint (“4AC”). Apex and

Spivak worked closely to develop the necessary information. Stein at first ignored the process,

then told us he had taken care of what was needed and then purported to instruct Apex not to

contact clients Apex or Spivak had originated because he (Stein) already had the needed

information. To the best of my knowledge, Stein never supplied the information to the team.

20. Thereafter, Stein – as he had done throughout our financial negotiations – became

abusive. He threatened to sue Apex and me. At times, he refused to communicate with me and

at other times he would call repeatedly as though he was my best friend. Among other things,

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Stein insisted that Apex was responsible for Stein’s failure to deliver the information he told the

team he had already had, insisted that Apex come off the caption of the case and threatened to

sue Apex and me for manufactured slights, all in an effort to push Apex out of the case.

21. Stein has repeatedly made it clear to me that if he is challenged, he will do whatever

is necessary to win. He has threatened that clients and others will sue me.

Allocation of Responsibility

22. Spivak performed enormous amounts of work and has been assiduous in consulting

with co-counsel regarding his contributions and output.

23. By contrast, on February 9, 2011, without prior consultation with me – and to the

best of my knowledge without prior consultation with Jones or Spivak – Stein and Davis sent a

notice to BofA counsel for a proposed ex parte regarding the addition of 394 plaintiffs to the

Ronald action. I have no idea as to the provenance of these clients or any matters pertaining to

the terms on which they have engaged counsel. Until I am comfortable as to the foregoing, I do

not consent to their addition to the case.

24. Until February 28, 2011, each member of the legal team had been accorded the

opportunity by the other members of the legal team to review, comment on and approve all key

motions and other court filings. As a result, each member of the legal team has shared

responsibility for development of strategy and court filings. We were a true team.

25. Then for the first time – ever – since the inception of the Ronald action, I

was not given any opportunity to review or approve the following key motions: (1) the

application for a temporary restraining order filed by Stein and Davis on or about February 28,

2011which pertains to Apex-originated clients. (The Court denied the application and certified it

for a writ.); (2) pro hac vice applications apparently filed by Stein, Davis and Riley with the

Court of Appeals regarding Riley on or about March 14, 2011; (3) a “Preliminary Opposition

(and Memorandum) in Response to Defendants’ Petition and Peremptory Writ of Mandate or

Other Appropriate Relief” (“Preliminary Opposition”) filed by Stein, Davis and Riley on or

about March 15, 2011 pertaining to the Bank of America (“BofA”) petition for a writ; and (5) a

petition for a writ (the “TRO Petition”) filed on or about March 15, 2011 by Stein, Davis and

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Riley regarding the Court’s decision denying to the February 28 TRO application.

26. When I finally reached Stein by phone, he denied having received the many emails

Spivak sent the team (including Stein, Davis and me) regarding his suggestions for the TRO

Petition, the status of the TRO Petition draft and the timing of Spivak’s review of the draft. He

also denied recalling any conversations with Spivak agreeing to share the briefing

responsibilities with Spivak.

27. Stein’s lack of recall of emails, conversations and events makes it very difficult to

work as a team in the best interests of our clients. Further, these attributes are inconsistent with

leadership.

28. I expected all key correspondence and court filings to be reviewed by Spivak.

Spivak’s apparent exclusion was diametrically contrary to my wishes and the best interests of our

clients, in that it deprived them of Spivak’s perspective and talents.

29. Neither Apex nor I were sent any drafts or the final version of the Riley applications,

Preliminary Opposition or TRO Petition, despite my repeated requests for those documents and

Spivak’s repeated requests, on which I was copied. Further, neither Apex nor I were formally

served with any of the foregoing filings, except that I did receive by email a copy of one of the

Riley applications.

30. None of Stein, Davis or Riley consulted with me regarding adding Riley to the

Ronald legal team or Riley’s application for admission pro hac vice. I have never met Riley, nor

had any interaction with him of any nature. To the best of my knowledge he has never rendered

any services with respect to the Ronald action. I do not consent to his addition to the team.

31. Then, Stein carried out his threat to delete Apex from the caption of the Appeals

Court filings. He also deleted Jones, SML, Spivak, Maloney and me. In our place, he inserted

Riley – a person who, to my knowledge, has nothing to do with this lawsuit. I am not aware of

any valid reason for our exclusion or Riley’s inclusion.

32. On Sunday night, March 27, 2011, Stein sent an email to Davis, Spivak and me

seeking assistance with respect to a matter related to the TRO Petition. He attached a PDF of an

unsigned version of the TRO Petition to that email.

7 TOMEZEWSKI DECLARATION

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33. I have been advised by prospective clients that Stein is charging retainers for

inclusion in the Ronald case. No such change in business model was discussed with me or

approved by me. Assuming, however, that the model is being implemented lawfully, Apex is

entitled to participate in such revenue as co-counsel.

34. We have received phone calls from clients who have expressed concern about the

information on the internet about Stein and Kramer, as detailed in certain consumer alert blogs.

Our clients have questioned whether Stein is acting in their best interests. This concern hampers

our ability to work with clients. By not knowing all of the relevant facts on a “real time” basis,

we are made to look untruthful in front of our clients, to the detriment of the team‟s relationship

with the clients and hence, to the detriment of our ability to represent our clients.

35. The legal team has fractured into a group that includes Apex, SML and most of the

clients on one side and a group that includes Stein and Davis on the other. Apex does not believe

the breaches in agreement, decorum or professional conduct are reparable. Apex therefore

withdraws its consent that Stein be a lead counsel in this action and further withdraws consent

that Stein continue to represent our clients, absent a contrary instruction from any client.

36. Together with Spivak, Maloney and the experienced senior litigators Spivak has

attracted to SML and, if necessary, other counsel we can attract, Apex believes that SML and

Apex can properly represent the interests of our clients and can do so within the bounds of the

professional standards that govern lawyers in California.

I declare under penalty of perjury that the foregoing is true and correct. Executed on March

27, 2011, at Sacramento, California.

____________________________ Christopher Tomaszewski

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SPIVAK DECLARATION

I, Kenin M. Spivak, declare:




California. I am co-lead counsel for Plaintiffs in the Ronald Action.1

Background

4. In early 2010, I learned of the Ronald action. On behalf of my clients and others, I

sought to intervene because no progress had been made in getting a good complaint on file.

Judge Jones denied the application because it had been made ex parte.

5. Thereafter, Mitchell J. Stein (“Stein”), Christopher Tomaszewski (“Tomaszewski”)

and Bridget Jones (“Jones”) asked me to join their legal team as co-lead counsel responsible for

directing pleadings and research. I joined the Ronald action shortly before the case was assigned

to this Court in or about late May 2010. As co-lead counsel, with exceptions from late February

2011, I have developed key theories, directed most research, coordinated participation from other

team members, drafted or revised nearly all filings and argued key motions in court. Stein has

participated to varying degrees in the foregoing activities.

6. Conversely, I have participated to varying degrees in Stein’s areas of responsibility,

which include discovery, procedures, certain client relations matters and certain administrative

matters. For example, I prepared certain of our discovery requests and worked with an

accountant selected by Stein to assist in back-end support.

7. Importantly, until February 2011, the effort had been a group effort. To properly

represent the interests of our clients, this effort requires cooperation, support, transparency,

timeliness, diligence, focus and support of all co-counsel members. From May 2010 and until

February, 2011, to the best of my knowledge and recollection, all counsel contributed to

1 In submitting this declaration and the exhibits hereto, the declarant does not intend to waive

and does not waive any privileges, including, without limitation, work product protection.

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substantially all aspects of the case, consulted on and approved of each other’s material

contributions to the case and jointly developed and executed strategy.

8. Both Stein and I have asserted to the other that the “other” has not lived up to

commitments regarding various matters. That, along with other factors described herein, has

caused my relationship with Stein to deteriorate to the point that Stein has repeatedly threatened

clients or others will sue me, or that they – or he – otherwise reserve their rights, with respect to

almost every matter as to which I have assisted Stein, his family and his businesses.

9. I have observed Stein’s relationships with Tomaszewski and Jones rapidly

deteriorate to the point he insisted their names come off the caption of the case and he refused to

communicate with them. I have observed Stein’s relationship with my colleague Ted Maloney

(“Maloney”), a senior lawyer with whom Stein also had a close relationship, collapse amid

Stein’s acerbic attacks in emails copying third parties.

10. While the legal team may be meeting and exceeding all requirements for a lawyer’s

service to a client, that will not continue to be true with the current ruptures. If the lawyers on a

joint prosecution team can’t work together, or some of the lawyers refuse to provide copies of

Court filings to other lawyers, or if there is no agreement on the financial or management

arrangements among the lawyers, it is only a matter of time before the clients suffer.

The Relationship Frays

11. Commencing in or about November 2010, I noted Internet postings linking Stein,

Phillip Kramer, K2 and others to solicitations of clients. These solicitations contained false

claims about the Ronald action. I also received reports of so-called marketing agents being paid

to solicit clients and large retainers being charged to potential plaintiffs in the Ronald action. I

discussed the foregoing with Stein and made clear my opposition to any improper marketing

efforts.

12. Stein denied any wrongdoing and denied he had received any retainers. He twice

arranged for a meal with Phil Kramer. My recollection is that the first lunch occurred before I

observed these postings. Kramer and I had a private lunch in Sherman Oaks. We discussed the

potential to work together, but concluded that we should not do so, though we would stay in

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touch. The second meeting occurred among Kramer, Stein and me in Calabasas after a

prospective client had sent me an inaccurate mailing he had received. Kramer agreed to look

into my concerns.

13. Subsequently, Stein offered to arrange for me to meet with Kramer to explore my

concerns and whether SML or I would be interested in being engaged by Kramer or otherwise

participating in his law firm. Kramer and I scheduled a meeting, but Stein cancelled the meeting

on December 6, 2010, after I made clear that while I personally like Kramer, I would have no

interest in working with him if it turned out that his client solicitations violated professional

standards or law. Although neither Stein nor Kramer have admitted to me any violation of any

law or ethical obligation – and in fact both Stein and Kramer have denied any violations – my

strong position on this issue was apparently off-putting.

14. Thereafter, I advised Stein: that: (1) no client could become a client in this action if

there was uncertainty about that client’s provenance, (2) as to clients with an appropriate

provenance, after provision for a reserve for litigation costs, Stein and I were both entitled to

share in any retainers in accordance with our understandings, and (3) I needed copies of all

Stein-Spivak retainer agreements and an accounting of any income thereunder.

15. Stein refused to comply. On December 21, 2010, for the first time, Stein insisted all

clients except approximately 30 originated by me were his clients and that providing copies of

the agreements or an accounting would violate attorney-client privilege. Stein also advised me

that my positions could violate my fiduciary duties and subject me to claims.

16. Since late last year, Stein has become increasingly abusive and inconsistent in his

promises, demands and actions. The situation has materially worsened since the February 3,

2011 Court hearing in which BofA expressed concerns regarding Kramer, Stein and K2. After

that hearing, I again expressed concerns to Stein regarding client solicitations and his failure to

provide information on the Stein-Spivak clients.

17. Thereafter, Stein at various times refused to communicate with one or more of

Jones, Tomaszewski and me and at various times threatened legal action against some or all of

us, Apex Legal Group PC (“Apex”), Maloney and SML LLP (“SML”). At times, he appeared to

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be threatening he would sue us and at other times he appeared to be threatening that “clients”

would sue us. It was never quite clear what our alleged sins were, other than disagreeing with

Stein as to case management, client solicitations, the allocation of any retainers properly

obtained and the allocation of any fees resulting from a settlement or judgment.

18. Further, Stein and his associate Erikson Davis (“Davis”) have abrogated the

agreements and practice among counsel by issuing ex parte notices and filing critical pleadings

in this Court and in the Court of Appeals without consulting with me or, to my knowledge, any

other team members. Stein and Davis refused to provide copies of recent Court of Appeals

filings to the Apex or SML lawyers in violation of the legal team’s agreement, practice, common

sense and Court of Appeals rules. Stein and Davis went so far as to delete the Apex and SML

lawyers from the caption of filings in the Court of Appeals and to insert the name of a Florida

businessman (admitted to practice in Florida), Michael S. Riley (“Riley”), who has nothing to do

with this case.

19. On February 9, 2011, without prior consultation with me, Stein and Davis sent a

notice to BofA counsel for a proposed ex parte regarding the addition of 394 plaintiffs to the

Ronald action. I have no idea as to the provenance of these clients or any matters pertaining to

the terms on which they have engaged counsel or whether they have signed some variant of the

Stein-Spivak engagement letter. Until I am comfortable as to the foregoing, I do not consent to

their addition to the case.

20. In connection with the preparation of the 4AC, Stein claimed that he had taken care

of certain important matters, but then failed or refused to provide the results for use in the 4AC.

He blamed the failure on Apex, even though he had specifically assumed responsibility and

“instructed” Apex to stay out of it. In connection with a separate matter for which Stein was

responsible and which he did not attend to (which may not have been due to any neglect or

wrongdoing on his part), he asserted that it was somehow my fault.

21. During a hearing on March 9, 2011, Stein advised the Court that he intended to

move for Riley’s admission to appear pro hac vice. Stein referred to Riley as the former head of

the antifraud division of Florida. Stein issued a press release on March 21, 2011 that repeated

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this assertion. See Exhibit B, a true and correct copy of that press release I downloaded on

March 24, 2011 from www.mjsteinassocaites.com/blog/index.php?p=219.

22. Riley was introduced to me by Maloney. We had lunch early this year in

Calabasas. Maloney and Riley told me that Maloney had introduced Riley to Stein. Riley told

me that he was thinking of working with Stein on litigation in Florida. He told me that early in

his career he was a junior prosecutor and laughed that Stein persisted in telling people that he

had been head of an antifraud division. Published Riley biographies I have read do not indicate

that he was head of a Florida antifraud division. I met Riley on two additional occasions. Riley

explained that he had been staying in California to undertake various business projects.

23. At no time did Stein or Riley consult with me regarding Riley’s proposed

involvement in this action.

24. From the time I joined the legal team and until February 2011, to the best of my

recollection, each member of the legal team had been accorded the opportunity by the other

members of the legal team to review, comment on and approve all motions and other court

filings.

25. On February 28, 2011, Stein and Davis filed an application for a temporary

restraining order (“TRO Application”) with respect to imminent foreclosures against certain of

the Apex-originated plaintiffs. Stein informed me that Davis was adapting a preliminary

injunction motion I had written and assured me that I would have ample time to review and “vet”

the draft TRO Application in accordance with the legal team’s agreement and practice.

26. Instead, Davis filed the TRO Application without my review. The Court denied the

TRO Application and certified the decision for interlocutory review.

27. Following the March 2, 2011 hearing, Stein and I agreed that Stein would write the

first draft of a petition (i.e., the “TRO Petition”) for my review, oversight of additional research,

revisions and approval. I started by researching the cases that had been located by Stein’s office

for the TRO Application and provided to the team my analysis, an outline of issues to be

researched for the TRO Petition and potential bases for the writ.

28. Following a hearing in this Court on the Defendants’ motion to compel and for

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sanctions against Stein, Stein advised me that the draft TRO Petition would be sent to me by

Thursday evening (March 10, 2011) or Friday morning (March 11, 2011), at “the latest.” When I

did not receive the draft, I repeatedly emailed and texted Stein inquiring as to the status of the

draft. Stein never responded.

29. Over the last few months, in an effort to isolate the Ronald action from the broader

disagreements between Stein and me, I sought to put into writing the financial terms on which

the legal team in Ronald is proceeding. At times Stein has agreed to do so – and even offered to

do so. As recently as this month he advised me that he had drafted agreements for our financial

arrangements pertaining to the Ronald action and would deliver the agreements to me. However,

no such agreements have been delivered. In emails to the team, Tomaszewski has asked for a

written agreement specifying the team’s financial terms, including a request emailed to all

counsel on March 6, 2011. Stein responded that his signing a written agreement was “unlikely.”

30. Without any prior notice or opportunity to review: (1) on March 14, 2011, Stein and

Davis filed the Riley Applications; (2) on March 15, 2011, Stein, Davis and Riley filed a so-

called “Preliminary Opposition (and Memorandum) in Response to Defendants’ Petition and

Peremptory Writ of Mandate or Other Appropriate Relief” (the “Preliminary Opposition”); and

(3) on March 15, 2011, Stein, Davis and Riley filed the TRO Petition.

31. On March 15, 2011, Jones sent me a copy of a Riley Application emailed to her by

Davis. Davis’ forwarded email does not show me as an intended recipient. Later that day, I

called Davis to coordinate his research support for a response to the BofA Petition. As a casual

aside, Davis told me the Preliminary Opposition and TRO Application had been filed. I

requested copies, which he agreed to send. I followed up with an email.

32. Despite my thereafter emailing and texting repeated requests to Stein and Davis for

copies of the filings and my receiving a second promise from Davis’ to send the filings in a

telephone conversation at approximately 9 AM on March 16, 2011, none of Stein, Davis or Riley

ever provided any of the documents filed with the Appellate Court to SML or me, or to my

knowledge, to Apex (excluding the Riley Application emailed to Jones and Tomaszewski by

Davis).

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33. On Monday, March 21, 2011, I made a final effort to obtain the filings from Stein

and Davis. Stein’s response was an emphatic “pound sand” as is seen in the email thread

annexed hereto in Exhibit A, which is a true and correct copy of an email thread containing

emails between Stein and me. Instead of sending the filings, Stein warned me that “many of the

Ronald clients have or shall imminently file suit against SML and Apex.” Stein later emailed me

to deny the accuracy of my response, deny involvement in the actions to be taken by clients and

“explain” that the writs constitute a separate case.

34. When all efforts to obtain the filings from Stein and Davis failed, I arranged for a

paralegal and copying service to go to the Court of Appeals and copy the filings.

35. On Sunday night, March 27, 2011, Stein sent an email to Davis, Tomaszewski and

me seeking assistance with respect to a matter related to the TRO Petition. He attached a PDF of

an unsigned version of the TRO Petition to that email

36. BofA properly served the BofA Petition on Apex and SML. See Exhibit C, a true

and correct copy of the proof of service for the BofA Petition. After reviewing the filings

obtained by SML on March 21, 2011, I observed there were no proofs of service for the Riley

Applications. I also observed that Stein, Davis and Riley excluded all Apex and SML lawyers

from their service lists for the TRO Application and Preliminary Opposition. See Exhibit D a

true and correct copy of the proof of service for the TRO Application and Exhibit E, a true and

correct copy of the proof of service for the Preliminary Opposition.

37. Stein and Davis deleted from the captions of each of those filings the remaining

members of the Ronald legal team – Jones, Maloney, Tomaszewski and me. In our place, Stein

added to the caption a stranger to this action, Riley.

38. In a final effort to rectify things, I exchanged emails with Stein and Davis last week.

All was for naught. First, Davis sent me a draft of an Opposition to Motion for Leave to

Intervene Filed by Asset Guardian Plan, Inc. for my review, but then disregarded my response,

deeming it to be utimely. Then, after a flurry of emails regarding the mutually agreed premise

that it was important I participate in the drafting of status reports – and would do so – Davis on

Friday, March 25, 2011 filed a Status Report without providing a draft to the legal team for its

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review. I lack knowledge as to certain statements made in that Status Report and I disagree with

certain statements made in that Status Report. For example, I disagree with Stein being referred

to as lead counsel, rather than co-lead counsel.

Stein, Davis, Kramer and Riley Join Forces

39. Following the February 3, 2011 hearing, I stepped up my Internet searches

pertaining to Stein, Kramer and related matters. On or about February 26, 2011, my searches

turned up a legal marketing network/law firm named “Hartford Dunn.” I downloaded a “White

Paper” dated January 15, 2011. Exhibit F is a true and correct copy of the White Paper I

downloaded from the Hartford Dunn website at http://hartforddunn.com/ on February 26, 2011.

40. Also as a result of these searches, on March 19, 2011 I downloaded from the

California Department of Real Estate a “Consumer Alert” entitled “Fraud Warning Regarding

Lawsuit Marketers Requesting Upfront Fees for So-Called ‘Mass Joinder’ or Class Litigation

Promising Extraordinary Home Mortgage Relief.” A true and correct copy thereof is annexed

hereto as Exhibit G.

41. Late last year, Davis informed me that he had taken a job “in the Valley.” He never

disclosed to me the identity of his employer, instead repeatedly referring to his employer in

generic terms. Within approximately the last month, Maloney advised me that Davis was

employed by Kramer or a Kramer law firm. Stein later confirmed the foregoing. In the last few

weeks, I learned that much of Davis’ work is for Stein and that Davis and Stein have an office in

the same building.

42. I have received phone calls from clients and prospective clients who have expressed

concerns about Internet postings regarding Stein and Kramer. Regardless of whether Davis or

Stein have, in general, the right to do whatever they want to do without telling me, in light of the

fevered pitch of Internet concerns and the concerns of clients and prospective clients who call

me, my credibility is challenged by not knowing these facts. When lawyer’s credibility is

impaired, the ability of that lawyer and that legal team to service the client is also impaired.

Clients

43. In connection with the filing of the TAC and our efforts thereafter to add clients to

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the case, Stein, our families and I phoned individuals who had contacted us to determine their

interest in becoming named plaintiffs in Ronald and to assess if they were qualified based on

criteria established by Stein. At Stein’s suggestion, I prepared a joint Stein-Spivak engagement

agreement therefore (later modified). I estimate that a total of more than 100 plaintiffs in the

TAC, as well as many dozens of prospective plaintiffs for later amendments, were generated by

our joint efforts. I also prepared an agreement for Apex. After several drafts were circulated and

approved by Stein, Stein told me he was using the agreement for new clients.

44. Because I was so busy writing the TAC and with other litigation matters I had taken

over from Stein relating to his family and businesses, Stein agreed to take responsibility for

causing the Stein-Spivak agreements to be delivered to the clients, executed and processed. He

also said that he had an accountant who could run the back-room operation.

45. The Stein-Spivak and Apex agreements I drafted and all modifications thereto I

prepared did not require any plaintiff to pay a retainer or to reimburse costs, unless the action

was successful.

46. As a result of and following this process, one of Stein’s responsibilities was to liaise

with the new clients, while I attempted to get a good complaint on file and attend to my other

responsibilities. Throughout this period, Stein confirmed he had been collecting the Stein-

Spivak engagement agreements and keeping our clients informed of what was occurring.

47. From the filing of the TAC and until today, hundreds of potential plaintiffs emailed

or called me and other members of the legal team. Stein agreed that given my absorption in

other matters, he would continue to liaise with the potential new plaintiffs. I forwarded the

emails and voice messages I received to Stein for that purpose. Stein’s job was to call (or obtain

someone on his staff to call) these individuals, qualify them based upon his criteria and arrange

for qualified individuals to sign the last version of the Stein-Spivak engagement letter I had

created in August 2010. Stein confirmed on numerous occasions he was doing just that.

48. Neither SML nor I have ever been paid by or on behalf of any plaintiff or

prospective plaintiff in this action.

49. Based upon reports to me from potential clients and brokers, I believe that Stein

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modified the Stein-Spivak engagement agreement to include retainers and that he has received

retainers. Thereafter, based on the same reports, I believe he deleted me from the agreement and

continued to collect retainers. I have never received copies of the engagement agreements

delivered to Stein or an accounting, despite repeated requests to Stein therefore.

50. My point is not that retainers are per se wrong. To the contrary, absent violations of

ethics or law, retainers are a good thing and even a necessary thing given the substantial costs of

litigation. However, Stein never disclosed to me any such modifications, even in the Stein-

Spivak agreement and to this day will not disclose to me the information to which I am entitled.

Conclusions

51. The legal team has fractured into a group that includes Apex and SML on one side

and a group that includes Stein and Davis on the other. I do not believe the breaches in

agreement, decorum or professional conduct are reparable.

52. While Stein may assert the ruptures occurred because of my acts or failings and/or

Maloney’s acts or failings and/or Apex’s acts or failings and that he alone is the only hope for

the Ronald plaintiffs, that makes no sense.

53. Excluding Maloney and me, SML’s lawyers include two litigators each with more

than 25 years of experience, another lawyer who has served as lead counsel in 300 trials and

adversary proceedings and another lawyer who previously litigated for national firms. If

necessary, SML will supplement our lawyers to ensure the plaintiffs are competently and

zealously protected.

54. Regardless of who is responsible for casting the first stone or for the first mistake or

for the last stone or last mistake, the rupture is beyond dispute. As a result, co-counsel can no

longer act together in the best interests of our clients.

I declare under penalty of perjury that the foregoing is true and correct. Executed on March

28, 2011, at Beverly Hills, California.

Kenin M. Spivak

SPIVAK DECLARATION

EXHIBIT A

1

Kenin M. Spivak

From: Kenin M. Spivak [[email protected]]Sent: Monday, March 21, 2011 12:50 PMTo: '[email protected]'; 'Erikson M. Davis'Cc: 'Bridget Jones'; 'Christopher Tomaszewski'; 'Ted Maloney'Subject: RE: Applications, Writs and Oppositions filed last week

Mitch┸ You clearly have lost it┻ First┸ you and ) specifically agreed to jointly prepare the writ consistent with prior practice┻ By excluding me from the preparation of the writ┸ you diminished the potential for it to succeed and violated the trust of our clients┻ As to Brookstone┸ you appear to be out of your mind┻ Your assertion is ‒ as you know ‒categorically false ゅand irrelevant to anythingょ┻ You have unilaterally destroyed the team┸ violated the rules of the Appellate Court and apparently through defamatory mistruths induced clients to take malicious actions┻ Apparently┸ your greed knows no bounds and you have elevated your self┽interest above your duty to the Ronald clients and your obligations to the team┻ )f you proceed with legal actions┸ the actions will be vigorously defended and will result in the appropriate actions against you┻ The foregoing is not intended a s a complete statement of my or SML╆s rights┸ remedies┸ claims or positions which are reserved┻ Kenin Kenin M. Spivak Managing Partner SML Law Group 450 North Roxbury Drive, Seventh Floor Beverly Hills, California 90210 U.S.A. Tel: +1.310.691.5811 Fax: +1.310.691.5809 E-mail: [email protected]

IRS AND CONFIDENTIALITY NOTES: To ensure compliance with requirements imposed by U.S. Treasury Regulations, we inform you that any U.S. tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This message and its attachments are sent from a law firm and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, any disclosure, copying, distribution or use of this email or any attachment is prohibited. Views expressed in this email are those of the individual sender unless the sender

2

specifically states otherwise. If you have received this email in error, please notify us immediately by returning it to the sender and delete this copy from your system. Thank you for your cooperation. From: [email protected] [mailto:[email protected]] Sent: Monday, March 21, 2011 12:40 PM To: Kenin M. Spivak; 'Erikson M. Davis' Cc: 'Bridget Jones'; 'Christopher Tomaszewski'; 'Ted Maloney' Subject: Re: Applications, Writs and Oppositions filed last week As I believe many of the Ronald clients have or shall imminently file suit against SML and Apex, and as the writ is a different and new case, and as you reportedly either own or control Brookstone law which is being sued by a Trustee in bankruptcy, I am certain you and Chris -- who were neither prepared nor capable of protecting the clients with effective writ practice (i.e., had I died, no writ would have been or could have been filed and indeed none was "in the works" by the Apex/SML team) -- understand the answer to the two of your inquiries. Sent from my HTC smartphone on the Now Network from Sprint!

----- Reply message ----- From: "Kenin M. Spivak" <[email protected]> Date: Mon, Mar 21, 2011 11:28 am Subject: Applications, Writs and Oppositions filed last week To: "'RC Admin'" <[email protected]>, "'Erikson M. Davis'" <[email protected]> Cc: "'Bridget Jones'" <[email protected]>, "'Christopher Tomaszewski'" <[email protected]>, "'Ted Maloney'" <[email protected]> Mitch and Erik┸ Despite several requests last week from me and from Chris ゅincluding my phone conversation with Erik and whatever communications Chris or Bridget might have separately had with youょ┸ ) have not received copies of the filings you made last week in the Appeals Court┻ Though copies were promised┸ they have never come┻ Please now send by email the filings ‒ if the exhibits are voluminous┸ you can send the table of contents and ) can then advise Erik if ) need any of the exhibits┸ which presumably in all or almost all cases ) already have┻ As ) understand it┸ you filed two applications to admit Riley┸ a writ regarding the TRO and some kind of opposition regarding the BofA writ┻ ) am entitled to copies of all of the foregoing ゅas is the entire teamょ and whether or not entitled to copies ゅnot that ) could imagine ╉not╊ being entitled to copiesょ┸ the failure to provide copies can╆t possibly be in the best interests of our clients┻ Much the same information is necessary for the reply to the preliminary injunction motion and despite characterizing the submissions as a ╉masterpiece╊ ゅand it may beょ┸ there might have been something left out or a mistake made┻ ) have neither received copies as of course as your co┽counsel┸ nor have ) been officially served with copies as required by the rules┻

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Either way┸ let╆s end this childishness with the simple attachment of some documents to an email and the push of the button entitled ╉send┻╊ Thank you┻ Kenin Kenin M. Spivak Managing Partner SML Law Group 450 North Roxbury Drive, Seventh Floor Beverly Hills, California 90210 U.S.A. Tel: +1.310.691.5811 Fax: +1.310.691.5809 E-mail: [email protected]

IRS AND CONFIDENTIALITY NOTES: To ensure compliance with requirements imposed by U.S. Treasury Regulations, we inform you that any U.S. tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

This message and its attachments are sent from a law firm and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, any disclosure, copying, distribution or use of this email or any attachment is prohibited. Views expressed in this email are those of the individual sender unless the sender specifically states otherwise. If you have received this email in error, please notify us immediately by returning it to the sender and delete this copy from your system. Thank you for your cooperation. No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1204 / Virus Database: 1498/3520 - Release Date: 03/21/11

SPIVAK DECLARATION

EXHIBIT B

Mitchell Stein, Esq. Files Mass Joinder Lawsuit Against Bank of America in Florida « Mitchell J. Stein & Associates

http:/ /www.mjsteinassociates.com/blog/ index.php?p= 219[3/24/2011 1:56:50 PM]

Mitchell Stein, Esq. Files Mass Joinder Lawsuit AgainstBank of America in Florida

M.J. Stein & Associates has filed a mass joinder lawsuit against Bank of America (BOA) in Florida,

another of potentially the most significant and precedent-setting legal actions taken against lenders as

a result of the national foreclosure crisis, it was announced today by Mitchell J. Stein, Esq. of Mitchell

J. Stein & Associates.

The Firm has filed suit in Florida in behalf of a mass joinder of plaintiffs seeking damages and

injunctive relief as a result of the Bank’s fraud and violations of the Deceptive Practices Act in Florida.

The Firm is co-counsel in the case with former State of Florida Fraud Chief Michael Riley, Esq. The

case is Brewer v. Bank of America, Fla. 17th Circuit 11004756.

The lawsuit alleges Bank of America (BOA) perpetrated a massive fraud, also constituting unfair

competition upon borrowers that devastated the values of their residences, resulting in the loss of net

worth, and that BOA intended to deprive numerous rights and remedies for the problems they caused

the borrowers.

“The scale of fraud we allege was perpetrated by Bank of America in this case is the reason we are

working in partnership with Mike Riley, Esq., former State of Florida Fraud Chief. “Our case will prove

the Bank did not care about borrowers who would suffer from actions that would generate profits for

them and allow them get out before the truth of their activities was exposed,” said Mitchell J. Stein,

Esq. “The fraud we allege resulted in a mortgage meltdown which has lead to decreased home

values throughout the state of Florida.

According to court documents, the lawsuit claims the Bank disregarded underwriting standards and

implemented a massive fraud that was concealed from borrowers and other mortgagees on an

unprecedented scale. The lawsuit alleges that, as a result of the Bank’s actions, borrowers lost equity

in their homes, their credit ratings and histories were destroyed and they incurred unnecessary costs

and expenses.

Mr. Stein filed the suit along with former Florida State fraud chief Michael M. Riley.

Mitchell J. Stein & Associates is also leading the landmark lawsuit, Ronald v. Bank of America, Los

Angeles Superior Court Case No. BC409444, the first mass joinder case filed against the banks

following the bank fraud and economic “meltdown” of the 2008, in which the Firm is representing

more than one thousand California consumers against attempted foreclosures by Bank of America. In

October 2010, Mitchell J. Stein & Associates obtained an order in favor of all clients and against the

Bank from Federal Judge Manuel Real who to one of the Bank’s arguments as “absurd” and threw the

Bank out of Federal District Court with respect to the case. On January 11, 2011, a Los Angeles

Superior Court Judge ruled that the Ronald case states valid causes of action against Bank of

America allowing for discovery and depositions that are now being conducted as the case moves

forward in California State and Appellate Court. The case is rapidly moving forward in California State

and Appellate Court. The Firm is unaware of any mass joinder case in which the Court has accepted

the complaint and allowed Plaintiffs to proceed.

In addition to the landmark Ronald case, Mitchell J. Stein, Esq. has also filed lawsuits against other

major banks and lenders on behalf of aggrieved consumers including Locker v. Ally Bank, Superior

Court Los Angeles, BC409444. a mass joinder case against Ally Bank and its affiliates, formerly

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Mitchell Stein, Esq. Files Mass Joinder Lawsuit Against Bank of America in Florida « Mitchell J. Stein & Associates

http:/ /www.mjsteinassociates.com/blog/ index.php?p= 219[3/24/2011 1:56:50 PM]

GMAC, and Carlson v. J.P. Morgan, Superior Court Los Angeles, BC452262, a mass joinder case

against the J.P. Morgan Group on behalf of dozens of citizens and homeowners.

“Bad actors must be held responsible for the irreparable and massive damage done to people’s lives

and the State of Florida due to their unbridled greed and avarice,” said Mitchell J. Stein, Esq. “In this

case, we are representing thousands of homeowners who as a result of horrible practices have

wrongfully lost their homes or are facing wrongful foreclosure,” said Mitchell J. Stein, Esq.

ABOUT MITCHELL J. STEIN & ASSOCIATESMitchell J. Stein & Associates is a California-based law firm founded by M.J. Stein, Esq. a 25-year

award-winning litigator, trial lawyer, financier, and entrepreneur who has represented many of the

world’s largest companies and has been involved in some of the highest profile cases in the Nation’s

history. The Firm’s philosophy is based on the belief that their clients’ needs are of the utmost

importance and, as a result, a high percentage of the Firm’s business has been from repeat

customers and referrals. The Firm’s practice areas include Complex Litigation, Bank Problems,

Mergers & Acquisitions, Commercial and Residential Foreclosures , and Bankruptcy Litigation. Mr.

Stein is also the founder of VIPS Foundation (Victims of Injustice Pain and Suffering), through which

victims nationwide, over the last 15-years, have received assistance following unfortunate events that

subjected them to oppression or mistreatment. In that regard, Mr. Stein received the inaugural Mitchell

J. Stein Benefactor Award from the National Organization for Victims Assistance (NOVA) for his work

in protecting victims’ rights. Visit http://www.mjsteinassociates.com or http://www.dobielaw.org for

more information.

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SPIVAK DECLARATION

EXHIBIT C

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Page | 1"This communication emanates from the Law Firm of Brookstone Law. All rights reserved. Copyright 2011.

Brookstone Law has licensed these materials from Mr. Riley and has a "Of Counsel" working relationship, accordinglyonly Brookstone Law and Mr. Riley is authorized to disseminate the foregoing information."

White Paper - January 15, 2011

Mortgage Litigation Affiliate PracticeLoan Modifications Do Not Work! As the last two years have demonstrated, banks across the UnitedStates are dragging their feet in the hope that homeowners get frustrated with the negotiation process and give up.This is unfortunate, because the United States Government advanced more than $1 trillion in TARP money so thatthe banks would not drag their feet. Instead, banks took the TARP money and began grabbing land. The land grabhas not yet reached epidemic proportions because of the presence of trial lawyers throughout America. While allthis has been happening, banks are denying 94% of all modification requests. If the bank does give the homeownera modification, it will most likely save them only a couple of dollars a month, will not reduce the principal balance,and the bank always reserves the right to welch on the modification and go back on it. Knowing that the banks arethe ones guilty of wrongdoing, the banks then turn the borrower☂s attention to the loan modification lawyer orother professional by using multi-million-dollar lobbying firms to pass legislation or otherwise politically blamethose who are merely doing what the President of the United States, Congress and the banks said to do: Modifytheir mortgages. If the homeowner paid a third party to perform a modification, their lender will call and tell thehomeowner lies like, ☜No one is working on a modification for you. They are a scam!☝ or ☜You should demand yourmoney back. We can do this for you for free.☝ It makes this process all the more frustrating for the homeownerbecause the banks want the homeowner to give up.Banks do not have a financial incentive to modify mortgages any longer. Banks would much rather foreclose on theproperty today and get to liquidate it at a time of their choosing. Their alternative is to most likely foreclose on theproperty a year from now at a substantially reduced market value (it is projected that property values will decreasean additional 20% in 2011). Furthermore, once banks modify a mortgage (if that event ever happens), they mustreduce the value of the mortgage asset on their balance sheet, which may trigger audits from regulators like theFDIC and ultimately may result in the bank becoming bankrupt or insolvent.

In this history of America, litigation has often been the only source of relief.Going back to the beginning and heritage of America, trial lawyers were the only ones standing in the backgroundas a safety net for the American citizenry.



Throughout our history, many of the most important and far-reaching advancements of American society havebeen achieved through the work of trial lawyers fighting for the rights of citizens and consumers. Without thetireless work of these conscientious trial attorneys, much of the positive progress of our society and the numerousconsumer protections we take for granted would likely not exist. From social policy to the safety and quality ofconsumer products, many of the most celebrated and important achievements of American social progress havebeen the result of the litigation by dedicated lawyers working within the system to help citizens realize their rightsand protections.

Examples of changes that fell into the trial lawyers safety net, we consider a few from the many: From Brown vsBoard of Education of Topeka, the landmark decision that declared separate public schools for black and whitestudents unconstitutional and paved the way for integration and the civil rights movement, to Roe Vs Wade, theSupreme Court decision that established that a right to privacy extends to a woman's decision to have an abortion,to the Tobacco Master Settlement Agreement of 1998 that settled Medicaid lawsuits in 46 states, curtailed tobaccomarketing practices, established annual payments to states to compensate them for medical costs of caring forpersons with smoking-related illnesses and funding a national anti-smoking advocacy group, litigation has made itpossible for us to progress as a nation and become a more equal, just and fair country under the Law.

With this backdrop, trial lawyers are where the American public is turning today. Many experienced legislators andexperts believe litigation may be the only alternative. Hartford Dunn, LLP has evaluated the problem and believesthat mortgage litigation represents the only viable alternative at this time in American history to protecthomeowners: The backbone of our society.

Benefits of Mortgage Litigation

Actual Lawsuit Is Filed Affordable Solution for Homeowners

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Powerful Litigation Attorney Protect Your HomeRepresentation

Hartford Dunn, LLP has evaluated lawyers state-by-state and, in working with lawyers, has put together a turn-keysystem that allows you to start offering mortgage litigation as a readily accessible solution in a matter of hours. Inconjunction with lawyers across the Country, Hartford Dunn, LLP provides all the required backend services tosupport the litigation process. Our focus is on providing the very best customer service and attorney services forcompanion law firms nationwide. I am very confident that we will be able to help you and I think you will quickly



see why our customers find our attorneys to be the experts when it comes to helping them get their financial issuesresolved. Hereafter, we invite your attention to ☜the best and the brightest lawyers☝ in this field from ourexperience and research:

If you have any questions, call us and we will discuss a particular attorney with you.Nothing in this list infers that Hartford Dunn, LLP is affiliated with any attorney.

Asterisks (*) Denote Particular, Unique and Heightened Experience or Skills.* In our view, these are the top lawyers -- nationally -- in the area of bank litigation brought by members

of the general public.

STATE NAME AKA FIRM

CA *Mitchell Stein ☜The Doberman☝Mitchell Stein & Associates

*Philip KramerRichard Kaslow ☜The General☝George Baugh ☜The Gladiator☝ Law Offices of George L. BaughPaul N. Taylor Taylor Law GroupLouis R. ☜Skip☝ Miller Miller BarondessLuan Phan Phan Law Center

NY John Golden Albert Buzetti & AssociatesGinsberg & Katsorhis

Brian Murray Murray, Frank & Sailer Llp

Paul Rheingold Rheingold, Valet, Rheingold, Shkolnik &McCartney

Mitchell Pollack Mitchell Pollack & AssociatesFL *Willie Gary

Andrew Needle Needle & EllenbergMark Kaire Law Offices of Mark A. KaireJames A. Ferraro The Ferraro Law Firm

TX Cynthia Chapman Caddell & Chapman



Louis Haki*Richard Haynes ☜Racehorse☝

Miller Curtis & WeisbrodRichard Haynes & Associates

JC Bailey III Bailey & GalyenFrank L. Broyles Goins, Underkofler, Crawford & LangdonJim Walker Walker & CrawfordLeonard Gabbay Leonard B Gabbay PC

IL Eric Brunick Freed & Weiss*Daniel Edelman Edelman Combs Latturner & GoodwinWarren S. George Keis George LLP

MA J. Michael Conley Kenney & ConleyGeorge Keches Keches Law Group*Keith Halpern Keith Halpern LawJeffrey Denner Denner Pellegrino, L.L.P.,

NV Kyle Kring Kring & ChungM. Lani Esteban-Trinidad Esteban-Trinidad Law, P.C---------------------------------Daniel Allred Parsons Behle & LatimerBarry Levinson Law Offices of Barry Levinson

MD Jeffrey M. Bloom The Law Offices of Jeffrey M. BloomPA Robert Huber Huber & Palsir

William Ballaine Landman Corsi Ballaine & Ford P.CPatrick McDonnell The Law Offices of McDonnell & Associates*Timothy Conboy Caroselli Beachler McTiernan & Conboy, L.L.CMarc Scaringi Scaringi & Scaringi, P.C.Robert Pierce Robert Peirce & Associates, P.C



Mortgage Litigation against Your LenderWith mortgage litigation, the homeowner will have attorneys on their side fighting for their rights in the US courtsystem. Banks will no longer have the power to make the decision as to what the homeowner will get.

The attorneys are using the leverage of the lawsuit to get results. Naturally, the attorneys follow the client☂sinstructions surrounding settlement of the litigation. In the event the client so chooses, they will attempt to settlethe suit for a principal reduction and rate reduction. If the bank will not settle, they will present this in front of ajury and attempt to get the mortgage free and clear. Remember, banks are vilified in today☂s society. If banklitigationmatters go to a jury trial, banks will be held accountable for the bad mortgages that were written and theunresponsiveness they had in providing financial relief to the homeowners who were victimized.

Hartford Dunn, LLP has relationship with Law Firms that are taking the fight with us against the banks. We canassess your case and see how many potential litigation cases you fit into based on your circumstances and profile.We will continue to serve you on all cases you qualify for as a Plaintiff and this gives you more strength in numbers.

Law Firms With Active Cases of the Kind We Provide Backend Support(Click on Defendant Company to view case detail)

Mitchell J. Stein & AssociatesLos Angeles, CA

Defendant Company

Bank of America

Kramer & KaslowOceanside, CA

Defendant CompanyⅫ Citibank Corporation


Defendant CompanyⅫ GMAC Mortage


Defendant CompanyⅫ Wells Fargo Bank, NA


Defendant CompanyⅫ JP Morgan Chase Bank


Defendant CompanyⅫ One West Bank Group LLC



Guldenschuh & AssociatesGeorgia

Defendant Company

Jon D. Pels, Esq., Lawrence J.Anderson, Esq., Justin M. Reiner,Esq. and Jennifer Schiffer, Esq.Bethesda, Maryland

Defendant CompanyⅫ HSBC Mortgage Corp.

Cuneo, Gilbert & LaDuca, LLPWashington DC

Defendant CompanyⅫ CitiGroup, Inc. & CitiMortgage

Frydman, LLCNew York, New York

Defendant CompanyⅫ Goldman Sachs, Hudson

Mezzanine Funding 2006-1 otherHudson Funding entities, PeterOstrem, Darryl Herrick

Cohen & Malad, LLP Class ActionAttorneysIndianapolis, IndianaDefendant CompanyⅫ Bank of America

Law Offices of Christie ArkovichTampa, FloridaDefendant CompanyⅫ GMAC Mortgage

Susan Chana LaskNew York, New YorkDefendant CompanyⅫ Stephen J Baum, Esq, Stephen

J. Baum, PC, MERS, HSBC others(see complaint)

E. Craig Smay, Esq. & JohnChristian BarlowSalt Lake City, UtahDefendant CompanyⅫ ReconTrust, MERS, BOA, BAC

Home Loan Servicing, HSBC, WellsFargo Bank, US Bank, Bank of NewYork Melon, Keybank , Does 1-10

Law Offices of Heather BooneMcKeeverLexington, KentuckyDefendant Company

Forizs & Dogali, P.A.Tampa, FloridaDefendant Company




Defendant Company



















Defendant Company


















Ⅻ Mers, GMAC, Deutsche,Nationstar, Aurora, BAC, Citi, US

Ⅻ Bank of America

Lanza & Smith, PLCIrvine,, CaliforniaDefendant Company

The Ferraro FirmMiami, FloridaDefendant CompanyⅫ BAC home loans servicing,

Deutsche Bank National Trust, USBank National Association

Friscia & AssociatesNewark, New JerseyDefendant CompanyⅫ Bank of America

Lieff Cabraser Heimann & BernsteinNew York, New YorkDefendant CompanyⅫ Ocwen Federal Bank, Ocwen

Financial

Lauren PaulsonAloha, Oregon

Defendant CompanyⅫ Fairway Commercial Mortgage

Company, Fairway America,FHLF,LLC, Skylands InvestmentCorporation

Ebanks & Sattler, llp.New York, New York

Defendant CompanyⅫ Chase Home Finance

Hagens Berman Sobol ShapiroLLPWashington, DC, Washington DC

Defendant CompanyⅫ Aurora Loan ServicesⅫ Bank of America

Kenneth Eric TrentOakland Park, Florida

Defendant Company

Ⅻ Law offices of David Stern, MERSⅫ Figuerora vs Mers




Ⅻ Bank of America






Financial









Defendant Company





Ⅻ Bank of America






Financial









Defendant Company




Beneficial Program for ClientsFee is a fraction of the cost of traditional litigationReal results compared to modificationsActual lawsuit filed against lenderMajor law firm experience, skill and resources without sacrificing client-centric focusResponsive, effective and accessible 24-7 customer serviceSkilled legal counsel in national and international real estate law and litigationSupport from Hartford Dunn, LLP, specialists in litigation against banksOpportunity to participate in mass joinder litigation gives individuals greater legalleverage over banks and lendersStaff and litigators trained in cost-containment and attention to detailExperienced, aggressive litigation specialists dedicated to positive results for your case

The Mortgage Litigation Process

EvaluationPhase

LitigationPhase

DiscoveryPhase

Settlement /Trial Phase



Claims Against Lenders Include:

Malfeasance3rd-Party Beneficiary ClaimsUnfair Business PracticesMERS Violations

Statutory ViolationsPhantom Investors and BeneficiariesFraudulent Foreclosure PracticesIdentity Theft

Thousands of Americans have reclaimed their lives through mortgage litigation. Our network of attorneysprovides clients with all the information they need to make well informed decisions about their mortgagesituation. We are an industry leader in matching clients with qualified legal representation they need and deserve.The banks have attorneys working hard on their sides, IT IS ABOUT TIME YOUR CLIENTS DO THE SAME.

Type of Clients Who Can Benefit:

Have been turned down for a loan mod.Have multiple propertiesHave too much debtDon☂t have a hardship

Have received previous modificationsAre current on their mortgageFacing foreclosureAre in bankruptcy



Getting Started in the Hartford Dunn, LLP Affiliate Network:

Request a Hartford Dunn, LLP Agreement

Fill out, sign and send back the agreement

We will open up an online CRM account

Start submitting your business today

We will handle everything else. It is that easy!

On behalf of all Plaintiff lawyers in the United States attempting to ameliorate the wrongdoing of banks andfinancial institutions from 2004 through 2011, I sincerely hope the foregoing information is helpful to you and Iinvite you to contact us ♠ or any of the foregoing law firms ♠ in the event you wish to learn more about theLitigation Solution.

Sincerely,HARTFORD DUNN, LLP

Michael Riley, Director Bank Compliance

12

34

SPIVAK DECLARATION

EXHIBIT G

Galifornia Department of Real Estate** COA'SUMER ALERT**

FRAUD WARNING REGARDING LAWSUIT MARKETERS REQUESTING UPFRONTFEES FOR SO.CALLED "MASS JOINDER" OR CLASS LITIGATION PROMISING

EXTRAORDINARY HOME MORTGAGE RELIEF

By Wayne S. BellChief Counsel, California Department of Real Estate

HOME MORTGAGE RELIEF THROUGH LITIGATION (and "Too Good to Be True"Claims Regarding lts Use to Avoid and/or Stop Foreclosure, Obtain Loan PrincipalReduction, and to Let You Have Your Home "Free and Clear" of Any Mortgage).

This alert is written to warn consumers about marketing companies, unlicensed entities,lawyers, and so-called attorney-backed, attorney-affiliated, and lawyer referral entitiesthat offer and sell false hope and request the payment of upfront fees for so-called "massjoindef' or class litigation that will supposedly result in extraordinary home mortgagerelief.

The California Department of Real Estate ("DRE" or "Department") previously issued aconsumer alert and fraud warning on loan modification and foreclosure rescue scams in

California. That alert was followed by warnings and alerts regarding forensic loan auditfraud, scams in connection with short sale transactions, false and misleadingdesignations and claims of special expertise, certifications and credentials in connectionwith home loan relief services, and other real estate and home loan relief scams.

The Department continues to administratively prosecute those who engage in such fraudand to work in collaboration with the California State Bar, the Federal TradeCommission, and federal, State and local criminal law enforcement authorities to bringsuch frauds to justice.

On October 11,2009, Senate Bill 94 was signed into law in California, and it becameeffective that day. lt prohibited any person, including real estate licensees and attorneys,from charging, claiming, demanding, collecting or receiving an upfront fee from ahomeowner borrower in connection with a promise to modify the borroweds residentialloan or some other form of mortgage loan forbearance.

Senate Bill 94's prohibitions seem to have significantly impacted the rampant fraud thatwas occurring and escalating with respect to the payment of upfront fees for loanmodification work.

Also, forensic loan auditors must now register with the California Department of Justiceand cannot accept payments in advance for their services under California law once aNotice of Default has been recorded. There are certain exceptions for lawyers and realestate brokers.

On January 31 , 2011 , an important and broad advance fee ban issued by the FederalTrade Commission became effective and outlaws providers of mortgage assistance reliefservices from requesting or collecting advance fees from a homeowner.

Discussions about Senate Bill 94, the Federal advance fee ban, and the ConsumerAlerts of the DRE, are available on the DRE's website at www.dre.ca.oov.

Lawver Exemption from the Federal Advance Fee Ban --The advance fee ban issued by the Federal Trade Commission includes a narrow andconditional carve out for attorneys.

lf lawyers meet the following four conditions, they are generally exempt from the rule:

1. They are engaged in the practice of law, and mortgage assistance relief is part oftheir practice.

2. They are licensed in the State where the consumer or the dwelling is located.3. They are complying with State laws and regulations governing the "same type of

conduct the [FTC] rule requires".4. They place any advance fees they collect in a client trust account and comply with

State laws and regulations covering such accounts. This requires that client fundsbe kept separate from the lawyers' personal and/or business funds until such timeas the funds have been earned.

It is important to note that the exemption for lawyers discussed above does nof allowlawyers to collect money upfront for loan modifications or loan forbearance services,which advance fees are banned by the more restrictive Califomia Senate Bill 94.

But those who continue to prey on and victimize vulnerable homeowners have not givenup. They just change their tactics and modify their sales pitches to keep takingadvantage of those who are desperate to save their homes. And some of the fraudsseeking to rip off desperate homeowners are trying to use the lawyer exemption above to collectadvance fees for mortgage assistance relief litigation.

This alert and warninq is issued to call to vour attention the often overblown andexaoqerated "sales pitch(es)" reqardinq the supposed value of questionable"Mass Joinder" or Class Action Litiqation.

Whether they call themselves Foreclosure Defense Experts, Mortgage Loan Litigators,Living Free and Clear experts, or some other official, important or impressive soundingtitle(s), individuals and companies are marketing their services in the State of Californiaand on the Internet. Thev are makinq a wide varietv of claims and sales pitches.and offerinq impressive soundino leqal and litiqation services. with quiteextraordinarv remedies promised. with the qoal of takinq and qettinq some of vourmonev.

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While there are lawyers and law firms which are legitimate and qualified to handlecomplex class action or joinder litigation, you must be cautious and BEWARE. Andcertainly check out the lawyers on the State Bar website and via other means, asdiscussed below in Section lll.

QUESTIONABLE AND/OR FALSE CLAIMS OF THE SO.CALLED MORTGAGE LOANDEFENSE OR "MASS JOINDER" AND CLASS LITIGATORS.

A. What are the Claims/Sales Pitches?

They are many and varied, and include:1. You can join in a mass joinder or class action lawsuit already filed against your

lender and stay in your home. You can stop paying your lender.2. The mortgage loans can be stripped entirely from your home.3. Your payment obligation and foreclosure against your home can be stopped when

the lawsuit is filed.4. The litigation will take the power away from your lender.5. A jury will side with you and against your lender.6. The lawsuit will give you the leverage you need to stay in your home.7. The lawsuit may give you the right to rescind your home loan, or to reduce your

principal.The lawsuit will help you modify your home loan. lt will give you a step up in theloan modification process.The litigation will be performed through "powerful" litigation attorneyrepresentation.

10. Litigation attorneys are "tuming the tables on lenders and getting cash settlementsfor homeowners".

ln one lnternet advertisement, the marketing materials say, "the damages sought in yourbehalf are nothing less than a full lien strip or in othenryords [sic] a free and clear house ifthe bank can't produce the documents they own the note on your home. Or at the veryleast, damages could be awarded that would reduce the principal balance of the note onyour home to 80% of market value, and give you a 2% interest rate for the life of theloan".

B. Discussion.

Please don't be fooled by slick come-ons by scammers who just want your money. Someof the claims above might be true in a particular case, based on the facts and evidencepresented before a Court or a jury, or have a ring or hint of truth, but you must carefullyexamine and analyze each and every one of them to determine if filing a lawsuit againstyour lender or joining a class or mass joinder lawsuit will have any value for you and yoursituation. Be particularly skeptical of all such claims, since agreeing to participate in

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such litigation may require you to pay for legal or other services, often before any legalwork is performed (e.9., a significant upfront retainer fee is required).

The reality is that litigation is time-consuming (with formal discovery such asdepositions, interrogatories, requests for documents, requests for admissions,motions, and the like), expensive, and usually vigorously defended. There can beno guarantees or assurances with respect to the outcome of a lawsuit.

Even if a lender or loan owner defendant were to lose at trial, it can appeal, and theentire process can take years. Also, there is no statistical or other competent datathat supports the claims that a mass joinder and class action lawsuit, even ifperformed by a licensed, legitimate and trained lawyer(s), will provide theremedies that the marketers promise.

There are two other important points to be made here:

First, even assuming that the lawyers can identify fraud or other legal violationsperformed by your lender in the loan origination process, your loan may be owned by aninvestor - that is, someone other than your lender. The investor will most assuredlyargue that your claims against your originating lender do not apply against the investor(the purchaser of your loan). And even if your lender still owns the loan, they are notlegally required, absent a court judgment or order, to modify your loan or to halt theforeclosure process if you are behind in your payments. lf they happen to lose thelawsuit, they can appeal, as noted above. Also, the violations discovered may be minoror inconsequential, which will not provide for any helpful remedies.

Second, and very importantly, loan modifications and other types of foreclosure relief aresimply not possible for every homeowner, and the "success rate" is currently very low inCalifornia. This is where the lawsuit marketing scammers come in and try to convinceyou that they offer you "a leg up". They falsely claim or suggest that they can guaranteeto stop a foreclosure in its tracks, leave you with a home "free and cleaf' of anymortgage loan(s), make lofty sounding but hollow promises, exaggerate or make boldstatements regarding their litigation successes, charge you for a retainer, and leave youwith less money.

THE KEY HERE IS FOR YOU TO BE ON GUARD AND CHECK THE LAWYERS OUT(Know Who You Are or May Be Dealing With) - Do Your Own Homework (AvoidThe Traps Set by the Litigation Marketing Frauds).Before entering into an attorney-client relationship, or paying for "legal" or litigationservices, ascertain the name of the lawyer or lawyers who will be providing the services.Then check them out on the State Bar's website, at www.calbar.ca.qov. Make certainthat they are licensed by the State Bar of California. lf they are licensed, see if they havebeen disciplined.

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Check them out through the Better Business Bureau to see if the Bureau has receivedany complaints about the lawyer, law firm or marketing firm offering the services (andremember that only lawyers can provide legal services). And please understand that thisis just another resource for you to check, as the litigation services provider might be sonew that the Better Business Bureau may have little or nothing on them (or somethingpositive because of insufficient public input).

Check them out through a Google or related search on the lnternet. You may beamazed at what you can and will find out doing such a search. Often consumerswho have been scammed will post their experiences, insights, and warnings longbefore any criminal, civil or administrative action has been brought against thescammers.

Also, ask them lots of specific, detailed questions about their litigation experience, clientsand successful results. For example, you should ask them how many mortgage-relatedjoinder or class lawsuits they have filed and handled through settlement or trial. Askthem for pleadings they have filed and news stories about their so-called successes. Askthem for a list of current and past "satisfied" clients. lf they provide you with a list, callthose people and ask those former clients if they would use the lawyer or law firm again.Ask the lawyers if they are class action or joinder litigation specialists and ask them whatspecialist qualifications they have. Then ask what they will actually do for you (whatspecific services they will be providing and for what fees and costs). Get that in writing,and take the time to fully understand what the attorney-client contract says and what theend result will be before proceeding with the services. Remember to always ask for anddemand copies of all documents that you sign.

CONCLUSION

Mortgage rescue frauds are extremely good at selling false hope to consumers in troublewith regard to home loans. The scammers continue to adapt and to modify theirschemes as soon as their last ones became ineffective. Promises of successes throughmass joinder or class litigation are now being marketed.

Please be careful, do your own diligence to protect yourself, and be highly suspect ifanyone asks you for money up front before doing any service on your behalf. Mostimportantly, DON'T LET FRAUDS TAKE YOUR HARD EARNED MONEY.

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MALONEY DECLARATION

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MALONEY DECLARATION

I, Ted Maloney, declare that:




California. I am a lawyer with SML LLP (“SML”), the senior partner of which, Kenin M.

Spivak (“Spivak”) is co-lead counsel for Plaintiffs in the Ronald Action. 1

3. Although I have only recently become a counsel of record, I have been one of the

lawyers for Plaintiffs in the Ronald Action for nearly 10 months. During that time, I have

worked closely with Spivak (“Spivak”) and at times, also with Mitchell J. Stein (“Stein”) and to

a lesser degree, also with Erikson Davis (“Davis”), Bridget Jones (“Jones”) and Christopher

Tomaszewski (“Tomaszewski”).

4. Effective as of the beginning of this year, I joined SML, a law firm established by

Spivak. My name was not on the pleadings in the Ronald action until very recently because my

prior firm consented to my assisting, but asked that I keep my name off the pleadings.

5. After I had been working primarily with Spivak regarding the Ronald case for

several months, late last year, Stein asked me to assist with respect to preparing discovery and

certain other matters. On a part-time basis over an approximately 45-day period, I performed

those services primarily in an office in the same suite as Stein and certain other lawyers I was

informed had been retained by Kramer.

6. I have known Michael S. Riley (“Riley”) for approximately 12 years. I

introduced him to Stein late last year while I was working with Stein. Over the last several

months, I have met Riley on numerous occasions in Los Angeles. During social events, Riley

has explained that he is in Los Angeles for various business endeavors, including with Stein.

7. Since learning of the finalization of my plans to join SML in December 2011,


privileges, including, without limitation, work product protection..

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JONES DECLARATION

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JONES DECLARATION

I, Bridget Jones, declare that:




California. I am a partner in Apex Legal Group PC (“Apex”). I have been a partner in Apex and

Apex has been a counsel of record in the Ronald action since the filing of the lawsuit on March

12, 2009. 1

3. As the originating counsel for a majority of the plaintiffs, Apex designates (and

has the right to withdraw) “lead counsel” positions. At first, Apex designated Stein. Then, at

Stein’s recommendation and based on Apex’s independent investigation of Spivak, Apex agreed

to split the lead counsel position between Stein and Spivak because it would serve the best

interests of our clients. Events since that time and more than justified our confidence in Spivak,

though events have raised grave doubts about Stein’s transparency and collegiality.

4. Spivak had requested the legal team’s support with respect to certain fact matters

necessary to prepare the Fourth Amended Complaint. Spivak and I worked closely to develop the

necessary information. Stein at first ignored the process, then told us he had taken care of what

was needed and then purported to instruct Apex not to contact clients. Stein never provided the

information he said he had.

5. Thereafter, Stein threatened to sue Apex. For a time, he would not communicate

with me. Among other things, Stein insisted that Apex was responsible for Stein’s failure to

perform that which he had told the team he had already achieved.

6. It has been my observation that Spivak performed enormous amounts of work and

was also assiduous in consulting with the other co-counsel regarding his contributions and

output. That is an important attribute in a team leader, i.e., a lead counsel.


privileges, including, without limitation, work product protection.

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JONES DECLARATION

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7. By contrast, on February 9, 2011, without prior consultation with me – and to the

best of my knowledge without prior consultation with my partner in Apex, Christopher

Tomaszewski, or Spivak - Stein and Davis sent a notice to BofA counsel for a proposed ex parte

regarding the addition of 394 plaintiffs to the Ronald action. I have no idea as to the provenance

of these clients and do not consent to their addition to the case.

8. Until February 2011, to the best of my recollection, each member of the legal

team had been accorded the opportunity by the other members of the legal team to review,

comment on and approve all motions and other court filings. I was not given any opportunity to

review or approve: (1) the application for a temporary restraining order filed by plaintiffs on or

about February 28, 2011, 2011; (2) pro hac vice applications apparently filed by Stein, Davis and

Michael S. Riley (“Riley”) with the Court of Appeals regarding Riley on or about March 14,

2011; (3) a “Preliminary Opposition (and Memorandum) in Response to Defendants’ Petition

and Peremptory Writ of Mandate or Other Appropriate Relief,” apparently filed by Stein, Davis

and Riley on or about March 15, 2011; or (4) a petition for a writ filed on or about March 15,

2011 by Stein, Davis and Riley regarding the Court’s decision pertaining to the March 1 TRO

application.

9. Neither Apex nor I were sent any drafts or the final version of the foregoing

filings. Further, neither Apex nor I were formally served with any of the foregoing filings,

except that I did receive by email a copy of one of the Riley applications. We obtained copies of

the Court of Appeals filings from SML after Stein again refused to provide copies by email on

March 21, 2011. I noticed that Spivak was not on the distribution list for that application and so

I forwarded it to him. We obtained copies of the Court of Appeals filings only after SML

engaged someone to go to court to obtain the documents.

10. I expected all key filings to be reviewed and directed by Spivak. Spivak’s

exclusion was diametrically contrary to our wishes and the best interests of our clients, in that it

deprived them of Spivak’s perspective and talents.

11. None of Stein, Davis or Riley consulted with me regarding adding Riley to the

Ronald legal team or Riley’s application for admission pro hac vice. I have never met Riley, nor

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JONES DECLARA nON

1 had any interaction with him of any nature. To the best of my knowledge he has never rendered

2 any services with respect to the action. I do not consent to his addition to the team.

12. Neither Stein nor Davis have ever disclosed to me that Davis is employed by Phil

4 Kramer or a Kramer law firm, that Stein and Davis worked near each other in the same office

5 building in Calabasas or that Davis renders considerable legal services for Stein.

6 13. I recently learned from prospective clients that Stein has apparently charged

7 retainers for inclusion in the case. No such change in business model was discussed with

8 me or approved by me. Assuming, however, that the model is being implemented lawfully,

9 Apex is entitled to participate in such revenue as co-counsel.

10 14. The legal team has fractured into a group that includes Apex, SML and most of

11 the clients on one side and a group that includes Stein and Davis on the other. I do not believe

the breaches in agreement, decorum or professional conduct are reparable. I do not see how the

legal team can best represent our clients in these circumstances. I therefore withdraw my

consent that Stein be a lead counsel in this action and further withdraw consent that Stein

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16 15. I have received phone calls from clients who have expressed concern about the

17 information on the internet about Stein, as detailed in certain consumer alert blogs, and have

18 questioned whether he is acting in the best interests of the clients. This concern hampers our

ability to work with clients. Not having all information 'pertinent to allegations of a relationship

between Kramer and Stein damages our credibility and that, in turns, impairs the team's ability

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2216. I believe that Apex and SML can properly represent the interests of our clients

23 and can do so within the bounds of the professional standards that govern lawyers in California.

I declare under penalty of perjury that the forego-ing is true and correct. Executed on March

28, 2011, at Sacramento, California.

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Bridget Jones28

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Proof of Service

of

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

r am employed in the County of Los Angeles, Stace of California. I am over Lheage of eighteen (18) years and not a party to the within acti-on. My business addressis: 450 Nort.h Roxbury Drj.ve, Seventh Floor, Beverly Hi1ls, CA 90210.

On March 28, 2017. I served the foregoing document(s) described as: NOTICE OF

MOTTON Ai{D MOTION TO RSMOVE MIrCI{EL J. STEIN AS CO-LEA-D COITNSEL FOR PLAI}flrIFFS AND ASCOI'NSEL FOR SPECIFIED PI,AINTIFFS, TO COMPEI. STEIN TO TI'RN OVER ENGANGEMENT AGREEME}ITSAND FOR AN ACCOUNrING;Points and Authoritiesr Declarations of Christopher Tomaszewski,Kenin M, Spivak, Ted MaLoney, Bridget ,Jones and Exhibits on Lhese parties in thisact ion .

Mitchell J. Stej-n, Esq.MITCHEI,I, .]. STEIN & ASSOCIATES2950 Buskirk Avenue, Ste, 300walnut Creek, CA 94597

Erikson M. Dawis, Esq.IJAW OFFTCES OF ERIKSON M. DAVIS11574 Iowa Avenue, Suite 104Los Angeles, CA 90025

Robert E. Boone fIIKeith D. KleinNafiz CekirgeBRYAN CAVE I,I,P1.20 Broadway, suite 300Santa Monica, California 90401-2385

( X ) (BY MAIL) I a.n rreadily faniliarn with this firm's practice of colleition andprocessing correspondence by mailing. under that practice it would bedeposited with U.s. postal service on that same day with postage fully prepaidat Los Angeles, California in the ordinary cgurEe of business. I €rm aware lhaton motion of t,he party served, service is presr:ned invalid if postalcancellation date or postage meter date is more than one day after date ofdeposit for rnaiLing in affidavit.

(BY PERSONAL DELIVERY) f caused such envelope to be deliwered by hand to theoffices of the addressee.

(BY FACSIMILE) I caused such docu.urent to be senE via facsimile to;NameofAttorney- ( ) -

(vIA EMAIL) I caused such docunent to be sent via email as follows:Mit,chell if. Stein, Esg, private,[email protected] M. Davj-s, Eaq. eri-kdavis@att. netRobert E. Boone, fII, Esq. [email protected] K1ein, Esq. [email protected] Cekirge, Esq, [email protected]

(STATE) I declare under penalty of perjury under the laws of the StateCalifornia t.hat the above is true and correct.

(x)

(x)

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Proof of Service

(FEDERAI,) I decl-areat v/hose direction

that. I am employed in the offi-ces ofthe service was made.

a member of this court

Executed this 28th day March,20lL, in Hi1Is, Cali-f orniaBeverly

ronald v bofa motion 3-28-2011 unlocked]

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