0:10-cv-01465-JFA Date Filed 09/07/11 Entry Number 51 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

United States of America ex rel. )

Lynn E. Syzmoniak ) C/A No.: 0:10-cv-01465-JFA
)
Plaintiff, )
)
v. ) SEALED MOTION AND
) MEMORANDUM
)
American Home Mortgage Servicing, )
Inc., et al., )
)
Defendants. )

UNITED STATES' EX PARTE MOTION

MEMORANDUM IN SUPPORT OF MOTION TO PARTIALLY LIFT SEAL

The United States of America, by and through the undersigned Assistant

United States Attorney for the District of South Carolina, and moves the Court to

partially unseal the above-captioned case pursuant to 31 U.S.C. § 3730(b)(3). The

United States respectfully requests that the seal be partially lifted to share with the

proper representatives of the non-plaintiff states the complaint and disclosure

statement; and, to advise the Florida court hearing of the matter where Relator is an

expert witness of the existence of the law suit in camera.

 0:10-cv-01465-JFA Date Filed 09/07/11 Entry Number 51 Page 2 of 4

UNITED STATES' EX PARTE MEMORANDUM IN SUPPORT OF

MOTION TO PARTIALLY LIFT SEAL

Relator filed this complaint under seal on June 6, 2010, under the qui tam

provisions of the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. and alleges,

inter alia, that the Defendants knowingly, unlawfully and wrongfully submitted

false claims and statements to officials of the United States of America related to

mortgage backed securities.

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

so that the United States has "an adequate opportunity to fully evaluate the private

enforcement suit and determine both if the suit involves matters the Government is

already investigating and whether it is in the Government's interest to intervene

and take over the civil action." See Legislative history of the FCA, S. Rep. 99-345,

99th Cong., 2d Sess., reprinted in 1986 U.S. Code Cong. & Admin. News 5266,

5289. The United States is investigating the allegations as allowed by statute in

order to make an intervention decision. Once the United States intervenes, it has

the primary responsibility for prosecuting the action pursuant to the terms of 31

U.S.C. § 3730(c)(1).

Currently, the plaintiff states and non-plaintiff states are negotiating with

some of the defendant banks to resolve issues which may include issues which are

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the subject of this law suit. The defendant banks are aware of this qui tam as are

the plaintiff states. However, the non-plaintiff states are not aware of this law suit.

In order for the parties to fully negotiate a possible settlement which may include a

settlement of some of the issues in this law suit, the proper representatives of the

non-plaintiff states need to be aware of this law suit and the allegations contained

therein.

At the request of Relator’s counsel, the United States also seeks a partial

lifting of the seal to inform the Florida State Court, 11th Judicial Circuit in Miami-

Dade County of the existence of the qui tam law suit. The Relator in this case is an

expert witness in a case pending in the Florida State Court. Opposing counsel1 had

deposed Relator and asked her questions that she cannot answer without revealing

the existence of this law suit. She has refused to answer those questions.

Opposing counsel has filed a motion for sanctions and to hold her in contempt of

court for failing to answer the questions. An evidentiary hearing to determine

whether and to what extent sanctions should be entered against the Relator is

1
Opposing counsel, Mr. William Heller, represents CitiBank as Trustee for American
Home Mortgage Servicing, Inc. in that case. Both CitiBank and American Home Mortgage are
defendants in the qui tam action. Mr. Heller does not represent either CitiBank or American
Home Mortgage Servicing, Inc.in the qui tam action. However, Mr. Heller represents American
Home Mortgage Servicing, Inc. in a case where America Home Mortgage Servicing, Inc. is the
plaintiff and the Relator in the qui tam action is the defendant. Additionally, both American
Home Mortgage Servicing Inc. and CitiBank are aware that Ms. Szymoniak is the Relator in this
qui tam.

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scheduled for tomorrow., Thursday, September 8, 2011. Relator’s counsel has

requested that the undersigned seek a partial lift of the seal so that the existence of

the law suit can be revealed to the Florida judge. The Plaintiffs in the Florida case

are defendants in the qui tam action and therefore are aware of the qui tam

and they are also aware of the seal. Therefore, the partial lifting is sought so that

the Florida judge may also be aware of the qui tam and the seal provisions.

For the foregoing reasons, the United States respectfully requests that the

seal be partially lifted to share with the proper representatives of the non-plaintiff

states the complaint and disclosure statement; and, to allow the Relator to advise

the Florida court hearing the matter where Relator is an expert witness of the

existence of the law suit.

Respectfully submitted,

WILLIAM N. NETTLES

United States Attorney

District of South Carolina

By: s/Fran Trapp________

FRAN TRAPP (#6376)
Assistant United States Attorney
1441 Main Street, Suite 500
Columbia, South Carolina 29201
(803) 929-3000