Donghun Lee

OCR transcription for search; preserved printed pages are authoritative

Case 2:08-bk-27937-PC Doc 36 Filed 06/26/09 Entered 07/02/09 11:52:04 Dest
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ORIGINAL

1 germ FILED
2 ENTERED
AN 2 6 208
3 JUN 2.0 2008
; TE Se or ese ;
BY: Deputy C:si-
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8 UNITED STATES BANKRUPTCY COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 |] In re: ) Case No.: LA08-27937SB
)
12 || Donghun Lee, ) Chapter 7
)
13 ) OPINION ON SANCTIONS ON COUNSEL
)
14 Debtor. )
) Date: March 4, 2009
15 ) Time: 11:00 a.m.
)} Ctrm: 1575
16 )
)
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19 its finding that this conduct violates Rule
- 1. Introduction 9011."
Counsel in this matter knowingly allowed a jl, Relevant Facts
21 || relief from stay motion to go to trial in this case
on the evidence that movant owned the More than a year before the filing of this
22 |) underlying promissory note without (a) chapter 7 case, HSBC Mortgage Corp. (USA)
informing the court that movant had sold the made a loan to debtor Donghun Lee secured
23 || underlying promissory note to a party not by a deed of trust on Lee’s residence in
before the court, and (b) that, contrary to the
24 || evidence submitted, the copy of the note filed
3 with the motion was not a true and correct
° copy. Pursuant to the court's order to show
og |] cause. the court imposes sanctions based on
' Unless otherwise indicated, all chapter, section|
27 and rule references are to the Bankruptcy Code,
11 US.C.A. §§ 101-1532 (West 2008) and to
28 the Federal Rules of Bankruptcy Procedure,

Rules 1001-9036.

AUTHENTICATED 1
U.S. GOVERNMENT
INFORMATIQN
Ky PO.

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Case 2:08-bk-27937-PC Doc 36 Filed 06/26/09 Entered 07/02/09 11:52:04 Des
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Cerritos, California.* HSBC is the original
payee on the note.

At the time that the loan was made, the
deed of trust named MERS, “a separate
corporation acting solely as a nominee for
Lender and Lender's successors and assigns,”
as the beneficiary under the deed of trust.°
Prior to the filing of this case, MERS
transferred the deed of trust to HSBC. Thus,
MERS no longer has an interest in this
transaction.

At some time before this case was filed,
HSBC sold the original note to Freddie Mac.
There is no evidence whether Freddie Mac still
owns the note or if it has sold the note to
someone else. However, at that time Freddie
Mac was known to be in the business of
securitization of mortgages: thus it most likely
sold the original note to a trust which was
subsequently securitized.

The current owner of the note has not
joined in the motion and is not before the
court. Indeed, HSBC does not even know
who the current owner is. However, HSBC
still has possession of the original note.

The original note has an indorsement
signed by HSBC that states, “Pay to the order
of without recourse.” However, the
copy of the note attached to the motion for
relief from stay omits this indorsement. HSBC
continues to service the original note, collects
the payments from the borrower, and remits
them to Freddie Mac.

After this case was filed, HSBC filed a
motion for relief from stay in order to proceed
with prepetition foreclosure proceedings that
were stayed by the filing of the bankruptcy
case. The motion included a declaration
under penalty of perjury from Kimberly
Graves, vice president and
"bankruptcy/foreclosure manager” of HSBC,
providing factual background for the motion.

2 The property is also encumbered by a

second note and deed of trust, which are not
relevant to this proceeding.

The court assumes without deciding that
MERS was a duly appointed agent of HSBC
with respect to the deed of trust. No evidence
on this issue has been presented to the court.
In light of the subsequent transfer of the deed
of trust to HSBC, this appears not to be an
issue in this case.

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The declaration attached a copy of the note
and deed of trust which Ms. Graves falsely
stated was “true and correct.” The declaration
also falsely stated that HSBC was the owner
of the note, even though it had previously sold
the note. The motion did not disclose the sale
of the note or the indorsement thereon.

Thomas J. Holthus and Ja Vonne M.
Phillips (“Counsel”) of McCarthy and Holthus,
LLP (“the Firm”) filed and prosecuted the
motion on behalf of HSBC. Ja Vonne Phillips
signed the motion on behalf of the firm.

Pursuant to Local Rule 9013-1(a)(13}(A),
the court issued an order requiring that HSBC
bring to court each declarant for whom a
declaration was submitted in support of its
motion, for the purpose of presenting
testimony to support the motion. Ms. Graves
testified at trial and brought the original note to
court.

Upon review of the original note at trial,
the court noticed the blank indorsement on the
original note, which was not included in the
copy attached to the moving papers. Upon
calling this discrepancy to the attention of Mr.
Holthus, he questioned Ms. Graves about the
discrepancy. Ms. Graves testified that the
note attached to the motion reflected the note
when it was scanned into the HSBC computer
system at the closing of the loan transaction,
and the indorsement was added at a later
time.

Ms. Graves further testified that the
indorsement was placed on the note when
HSBC sold the note to Freddie Mac. She
testified that HSBC had no knowledge of who
currently owns the note, but that HSBC
continues to collect the payments on the note.

Mr. Holthus stated on the record that he
knew that HSBC had sold the note. Counsel
also related that it was “very much familiar”
with the court’s past decisions, including /n re
Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008)
and In re Vargas, 396 B.R. 511 (Bankr. C.D.
Cal. 2008), but did not agree with the
decisions. Notwithstanding these statements,
neither HSBC nor Counsel have submitted or
advocated any nonfrivolous arguments for
extension, modification or reversal of existing
law as stated in these opinions.

Ms. Graves also testified as to HSBC's
computer records of payments on the note by
the debtor. Pursuant to in re Vinhnee, 336
B.R. 437 (B.A.P. 9th Cir. 2005), the court

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Case 2:08-bk-27937-PC Doc 36 Filed 06/26/09 Entered 07/02/09 11:52:04 Des
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found that Ms. Graves was not competent to
testify regarding the accuracy of the payment
records and denied admission of this
evidence.

At the conclusion of the testimony, the
court denied the motion for relief from stay on
three grounds. First, HSBC was not the real
party in interest pursuant to Hwang. Second,
the joinder of the owner of the promissory note
is required by Hwang. Third, HSBC, the Firm,
and Counsel did not disclose in the moving
papers that the original note had been sold;
therefore, the presentation of false evidence
supported the denial of the motion.

jl. Order to Show Cause

After the hearing, the court issued its order
to show cause re sanctions based on the
following:

(1) The Graves declaration falsely states
that HSBC is the owner of the original note.

(2) The Graves declaration falsely states
that the note attached to the motion is a true
and correct copy of the original note.

(3) The owner of the original note is not a
party to the motion, and HSBC does not know
the identity of the owner of the original note.

(4) Counsel knew or should have known
that HSBC was not the owner of the original
note. Counsel failed to disclose this fact in the
moving papers or in any presentation to the
court.

(5) Counsel! knew, or should have known,
that the copy of the note attached to the
moving papers was not a true and correct
copy of the promissory note. Counsel failed to
disclose this information in either the moving
papers or in the presentation to the court. The
court only discovered the discrepancy when
given the opportunity to examine the original
note at trial.

(6) Counsel stated in oral argument that
they were familiar with this court's Hwang
decision and disagreed with it. While Rule
9011(b})(2} permits counsel to make a
nonfrivolous argument for the extension,
modification or reversal of existing law,
nothing in the motion indicates that Counsel
raised this issue.

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IV. Discussion

The issues raised in the order to
show cause generally fall into four categories:
(a) the falsity of the evidence that the bank
owned the note, and that it had attached a true
and correct copy; (b) the failure to join the real
owner of the note as a party to the motion;
(c) Counsel's knowledge of the falsity of the
evidence; and (d) the failure to address the
Hwang case law.

A. False Statements of Fact

The declaration filed by HSBC contained
two important statements of fact relevant to
this order to show cause. First, the
declaration stated that HSBC was the owner
of the note. Second, it stated that a true and
correct copy of the note was aitached. Both of
these statements were false.

1. HSBC Ownership of Note

The Hwang opinion, issued by this court
on October 29, 2008, hoids that the owner of a
promissory note must join in a motion for relief
from the automatic stay. Although this opinion
was fairly new at the time the motion in this
case was filed, Counsel admitted familiarity
with the opinion at the time that the underlying
motion was filed.

HSBC attempted to avoid the Hwang
requirements by hiding the fact that it had sold
the note before the motion was made. HSBC
concealed this fact by filing a declaration by its
vice president Ms. Graves, in which she
falsely stated HSBC was the owner of the note
at the time of the filing of the motion when it
had soid the note to Freddie Mac.

Freddie Mac was not in the business of
keeping such notes. At the time HSBC sold
Freddie Mac the note, Freddie Mac was in the
business of selling notes of this type in
securitization transactions. Nobody before the
court knows if Freddie Mac sold the note here
at issue.

Furthermore, no evidence has been
presented to the court showing that HSBC is
authorized to collect payments under the note.
HSBC admits its only authority for collecting
payments is to act on behalf of the owner of
the note. No evidence of such authorization
has been offered. In addition, HSBC gives no

Cs

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explanation as to how it can be authorized to
collect such payments on behalf of an owner
whose identity is unknown. The record is
altogether silent on whether a document exists
from the present owner of the note appointing
HSBC as an agent to collect on the note.
Therefore, the court fails to perceive how
HSBC can be authorized to act on behalf of a
principal.

Respondents argue that HSBC is the
appropriate party to bring a motion for relief
from stay because HSBC is the hoider of the
original note, has possession of the original
note and has the right to collect payments
onit. This argument directly contradicts this
court's Hwang opinion. However, Counsel did
not submit any argument disagreeing with
the relevant established law in Hwang.
In addition, respondents misstated in their
moving papers that HSBC was the owner of
the original note. Thus, the court finds that
HSBC and Counsel failed to comply with
applicable case law in this court.

Counsel stated that he first learned on the
night before the trial that HSBC had sold the
note. Upon learning that the evidence of the
ownership of the note was false, Counsel had
a duty under Rule 9011 to disclose the sale to
the court at the earliest opportunity. This
opportunity arrived the next morning when the
court called the case for trial. At that time,
Counsel should have immediately informed
the court of the error in the evidence and
apologized for the error. He did not.

While the statement that HSBC owned the
note may have been a negligent mistake, Mr.
Holthus’ failure to inform the court thereof and
his proceeding with trial while the court had an
erroneous impression of the evidence
constituted misconduct.

2. True and Correct Copy of the Note

The second false statement of fact is
that a true and correct copy of the note was
attached to the motion. The missing part
ofthe note was the — indorsement.
An indorsement can be a critical addition to a
note because it may indicate that the note has
been negotiated to another entity, which has
the sole authority to enforce the note.

“Negotiation”, a term defined in section
3201 of the California Commercial Code (West
2009) ("CCC") (copied from section 3-201 of

the Uniform Commercial Code ("UCC")),* is
the process of transferring the ownership of a
note to gain and preserve certain benefits not
otherwise available to a transferee of contract
rights. Such a transferee may enjoy the status
of “holder in due course”, as specified in §
3201 of the CCC (and § 3-302 of the UCC),
which exempts the transferee (and any
subsequent holder in due course} from
virtually all defenses assertable by the debtor
against the original payee. See CCC § 3305:
UCC § 3-305.

The CCC (and the UCC) provide for
twotypes of indorsements, a “special
indorsement” and a “blank indorsement.”®
A special indorsement is made by the holder
of a note and specifies a person to whom the
instrument is payable. Upon delivery of the
note to the new payee, that payee becomes
the new owner and a holder in due course.
See CCC § 3305 (West 2009); UCC § 3-
205(a).

Alternatively, if the indorsement does not
specify a payee, it constitutes a “blank
indorsement,” as defined in CCC § 3205(b)
{UCC § 3-205(b}), which makes the note
payable to whoever is the bearer of the note.®
After a blank indorsement, the note may be
negotiated by transfer of possession alone
until it is specially indorsed. See id.

“ Section 3201 and 3-201 provide in identical
language:

(a} "Negotiation" means a transfer of
possession, whether voluntary or
inveluntary, of an instrument by a person
other than the issuer to a person who
thereby becomes its holder.
(b) . . . if an instrument is payable to an
identified person, negotiation requires
transfer of possession of the instrument and
its indorsement by the holder. If an
instrument is payable to bearer, it may be
negotiated by transfer of possession alone.

5 Not relevant herein, the UCC also provides
for an “anomalous indorsement,” an
indorsement by a person who is not the holder
of the instrument. See id § 3-205.

8 In this respect, a bearer note is much like a
dollar bill (or any other currency).

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In this case, the conversion of the note to
a bearer note, standing alone, is of no
particular importance, because HSBC still had
possession of the note and presented it for
inspection at trial.’ However, Ms. Graves
testified that the indersement indicated that
HSBC had sold the note, and was added at
the time of the sale. This testimony was the
first indication to the court that HSBC no
longer owned the note. Thus, the missing
indorsement was tied to the undisclosed sale
of the note.

B. Real Owner Not Joined

Only the holder of an instrument (such as
a promissory note) is entitled to enforce an
instrument {with exceptions not relevant
herein). See CCC § 3301; UCC § 3-301. A
person or entity in possession of an instrument
is the holder of the instrument, if the
instrument is payable to that person or entity.
In re Hwang, 396 B.R. at 763; In re Vargas,
396 B.R. at 520. An instrument is payable to
the bearer (the person in possession) if it does
not state a payee (i.¢., it is indorsed in blank).
See CCC § 3309(a)(2); UCC § 3-109(a}{2). In
this case, HSBC has possession of the
original note in question, and it is indorsed in
blank.

However, HSBC has admitted that it soid
the note to Freddie Mac. Freddie Mac, or a
subsequent transferee, is thus the owner and
real party in interest. Cf Hwang, 396 B.R. at
764 (same).

C. Compliance with Rule 9011

Rule 9011(b) imposes a duty on an
attorney to make a reasonable inquiry into the
facts and law of a position before presenting it
to the court.* Filing a document with the court

7 The court did not make the original note an
exhibit at trial because possession of the
original is required for its enforcement. If the
note went into the triai exhibits, the owner of
the note would not be able to produce it for
enforcement purposes.

® Rule 9011 provides in relevant part:

(b) Representations to the court

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constitutes a certification by the attorney that
the attorney has made a reasonable inquiry,
upon which the attorney certifies (to the best
of the attorney’s knowledge, information and
belief) that “the allegations and other factual

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By presenting to the court (whether by
signing, filing, submitting, or later
advocating) a petition, pleading, written
motion, or other paper, an attorney or
unrepresented party is certifying that to
the best of the person's knowledge,
information, and belief, formed after an
inquiry reasonable under the
circumstances ....

(2) the claims, defenses, and other legal
contentions therein are warranted by
existing flaw or by a nonfrivolous argument
for the extension, modification, or reversal
of existing law or the establishment of new
law...

(3) the allegations and other factual
contentions have evidentiary support. . .

Rule 9011 is reinforced by Rule 5-200 of the
California Rules of Professional Conduct,
which are applicable in this court pursuant to
Local Rule 83-3.1.2 of the district court.
Rule 5-200 provides in relevant part:

In presenting a matter to a tribunal, a
member:

{A) Shall employ, for the purpose of
maintaining the causes confided to the
member such means only as are
consistent with the truth;

(B) shall not seek to mislead the judge
... by an artifice or false statement of act
orlaw....

Counsel is required to comply with this rule
as well as all of the rules of the California
Rules of Professional Conduct. However,
the court does not impose discipline in this
case based on a violation of Rule 5-200
because Counsel was not put on notice
through the order to show cause that this
rule may provide a basis for sanctions.

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contentions have evidentiary support... .”°

See also Golden Eagle Distrib. Corp. v.
Burroughs Corp., 801 F.2d 1531, 1536 (9th
Cir. 1986); Commonwealth Corp. v. Citizens
Bank (In re Commonwealth Corp.), 236 B.R.
530, 536 (D. Mass. 1999).

Counse! submitted a note lacking
information vital to the court's determination of
the case. Counsel's acts in violation of Rule
9011{b)(3) were intentional and knowing.
Mr. Holthus admitted in his subsequent
declaration that he became aware the night
before the hearing on January 6, 2009, of the
inconsistencies between the note submitted
with the Motion and the original note produced
by Graves. Nonetheless, Counsel failed to
disclose this to the court.

The purpose of Rule 9011 is to deter
unsubstantiated filings that waste time and
resources. Valley Nat’ Bank, v. Needier (in re
Grantham Bros.), 922 F.2d 1438, 1441 (9th
Cir. 1991); Golden Eagle Distrib. Corp., 801
F.2d at 1536 Nosek v. Ameriquest Mortgage
Co. (in re Nosek), 386 B.R. 374, 381 (Bankr.
D.Mass. 2008}.

Counsel should have examined the note
before making the motion, to assure that the
submission was a true and correct copy.
Counsel did not discharge this responsibility.

Even if Counsel may be excused for not
discovering the discrepancy, Counsel had a
duty, upon discovering the difference in the
original note, to bring this to the court's
attention at the first opportunity. Counsel
could have brought this to the court’s attention
at the beginning of the trial, before testimony
was taken. Counsel did not. Instead, Counsel
left it to the court to discover that the copy
differed from the original in a relevant respect.
Counsel should have known of the
discrepancy and should have disclosed it.

D. Failure to Address Jn re Hwang

* Alternatively, Counsel may take the position
that the factual contentions are likely to have
evidentiary support after further investigation
or discovery, provided that such factual
contentions are clearly identified. This
alternative is not available in this case,
because no factual contentions are so
identified.

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The underlying motion for relief from stay
is governed by this court's decision in In re
Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008),
which held that the owner of a promissory note
must join in a motion for relief from stay to
proceed under California law with nonjudicial
enforcement of the note and foreclosure on
the accompanying deed of trust. Neither
Freddie Mac, to whom HSBC sold the note,
nor any subsequent purchaser of the note has
joined in this motion.

The court found in Hwang that, when a
transferor of a promissory note has retained
possession, the owner is the real party in
interest and must join in a motion for relief
from stay. See id., 396 B.R. at 762.

A position contrary to existing law may be
taken if a good faith argument is made for the
extension, modification, or reversal of existing
law. See Rule 9011(b)(2); Commonwealth
Corp., 236 B.R. at 536; Golden Eagle Distrib.
Corp., 801 F.2d at 1536. Instead of
confronting the issue, Counsel made no effort
to distinguish or challenge the Hwang and
Vargas holdings.

E. Sanctions

Mr. Holthus has requested that any
sanctions be imposed on him only, and not on
the client. In this case, the court considers
this result appropriate. A!though the client
provided the false declaration, Counsel had
the responsibility to assure that the client was
properly informed of the applicable legal
requirements and to check the accuracy of the
declaration {including the representation that
HSBC was the owner of the note) and of the
copy of the note.

Sanctions imposed by the court must be
reasonable in the circumstances. See, e.g., in
re Brooks-Hamilton, 400 B.R. 238, 252 (B.A.P.
Oth Cir. 2009). [n addition, sanctions should
be sufficient to prove as a deterrence to others
to prevent similar future behavior. See Rule
901 1(c}(2).

A determination of the proper level of
sanctions requires the review of four factors:
(1) whether the duty violated was to a client,
the public, the legal system or the profession;
(2} whether the lawyer acted intentionally,
knowingly or negligently; (3) whether the
lawyer's misconduct caused a serious or
potential serious injury; and (4) whether

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factors or mitigating
See Brooks-Hamilton,

aggravating
circumstances exist.
400 B.R. at 252.

In this case, Counsel used a_ faise
statement of fact in an attempt to mislead the
court into making a ruling in the client's favor,
when Counsel knew the true facts did not
support such a ruling absent the joinder of the
true owner of the note at issue. Counsel also
relied on the declaration, knowing it was false,
which stated that the promissory note was a
true and correct copy of the original.

At the outset, Counsel's conduct in filing
an inaccurate copy of the note and in not
disclosing the client's sale of the note may
have been merely negligent. However, it
became intentional when Counsel failed to
disclose the true facts after learning them.

But for the intervention of the court upon
examining the original promissory note,
Counsel’s conduct could have caused serious
injury to the debtor, Without this information,
the court would have granted the relief from
stay requested, which likely would have led to
a foreclosure on the deed of trust and a
deprivation of the debtor's property by a party
with no interest in the note.

Mitigating circumstances that call for a
decrease in the level of discipline, may include
the consideration lack of prior discipline,
personal or emotional problems, lack of
experience, or a good faith effort to correct the
situation. Brooks-Hamilton, 400 B.R. at 253.
Counsel has appeared in this court frequently
over a course of some twenty years. Counsel
represents that he has never been disciplined,
and the State Bar website discloses no
disciplinary record. Indeed, Counsel's
reputation in this court has been exemplary.
The court finds this a substantial ground for

nammees

Page 7 of 8

imposing a minimal level of sanctions in this
case.

Considering all of the foregoing factors,
the court limits sanctions in this case to the
publication of this opinion and imposes no
further sanctions.

V. Conclusion

The court finds that Counse! tried to
deceive the court because, after learning that
the client HSBC had submitted false evidence
stating that it owned the note when it had sold
it to Freddie Mac for securitization, Counsel
failed to inform the court promptly of the false
evidence and proceeded with trial without
making disclosure. While the original
submission of the false evidence may have
been an inadvertent mistake, the failure to
inform the court promptly thereof after
discovery, and proceeding to trial without
disclosing the false evidence, was
sanctionable conduct.

Publication of this opinion constitutes the
sanctions imposed by the court for this
misconduct.

Dated: June 26, 2009

on. uel IL. Buffoyd
ited States Bankruptcy Judge

CJ

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NOTE TO USERS OF THIS FORM:

1) Attach this form to the last page of a proposed Order or Judgment. Do not file as a separate document.

2) The title of the judgment or order and all service information must be filled in by the party lodging the order.
3) Category I. below: The United States trustee and case trustee (if any} will always be in this category.

4) Category Il. below: List ONLY addresses for debtor {and attomey), movant (or attomey} and person/entity
(or attorney) who filed an opposition to the requested relief. DO NOT list an address if person/entity is listed in
category I.

NOTICE OF ENTERED ORDER AND SERVICE LIST

Notice is given by the court that a judgment or order entitled (specify) OPINION ON SANCTIONS ON
COUNSEL was entered on the date indicated as AEntered” on the first page of this judgment or order
and will be served in the manner indicated below:

|. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") B Pursuant to
controlling General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on
the following person(s) by the court via NEF and hyperlink to the judgment or order. As of June 26,
2009, the following person(s) are currently on the Electronic Mail Notice List for this bankruptcy case
or adversary proceeding to receive NEF transmission at the email address(es) indicated below.

Young K. Chang, Esq. bklaw3@yahoo.com
Thomas J. Holthus, Esq. bknotice@mcecarthyholthus.com
Carolyn A. Dye, Trustee trustee@cadye.com
United States Trustee ustpregion16.la.ecf@usdoj.gov
CJ Service information continued on attached page

ll. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment
or order was sent by United States Mail, first class, postage prepaid, to the following person(s) and/or
entity(ies) at the address(es) indicated below:

Donghun Lee
dba 4 idream dba Fresia
800 West 1st Street
#907
Los Angeles, California 90012

| Service information continued on attached page

ill. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this
judgment or order which bears an AEntered@ stamp, the party lodging the judgment or order will
serve a complete copy bearing an AEntered@ stamp by U.S. Mail, overnight mail, facsimile
transmission or email and file a proof of service of the entered order on the following person(s} and/or
entity(ies) at the address(es), facsimile transmission number(s), and/or email address(es) indicated
below:

C] Service information continued on attached page

ADDITIONAL SERVICE INFORMATION (if needed):