Have you received OCC Mortgage Settlement Check – FOIA request letter

Here is the FOIA request letter to Thomas J. Curry – Office of the Comptroller of the Currency (OCC), regarding “Independent Foreclosure Review”, which I’ll send per my lawyer’s advice. Let’s see if and how much of a response we will get….

Freedom of Information Act Request Letter

Thomas J. Curry
Office of the Comptroller of the Currency (OCC)

400 7th Street SW, Suite 3E-218
Washington, D.C. 20219

RE:    Freedom of Information Act Request
         Regarding “Independent Foreclosure Review”
Borrower(s):
Original Loan No.:
Min No.:
Property Address:
Loan Servicer:
Purported Current Mortgagee:
Purported Note Holder:
Date of Mortgage:
Date of Foreclosure:

Dear Mr. Curry:

I am a borrower under a residential mortgage loan as identified above.

This is a request under the Freedom of Information Act (“FOIA”) pursuant to 5 U.S.C. §552, et seq., the Privacy Act of 1974 under 5 U.S.C. §552a and 12 CFR 4 (FOIA) and 12 CFR 4.13 (Privacy Act) respectively.

On or about ________, I received a check from ______________________ in the amount of ______________.

This check is identified as being related to a “settlement” that the OCC and a number of other governmental agencies entered into with a group of national banks and loan servicers on behalf of borrowers under residential mortgage loans – like myself – that were involved in foreclosure-related matters over the last several years and the “independent foreclosure reviews” that were ordered by the government pursuant to various “consent” orders certain banks and loan servicers entered into on or about April 4, 2012 in the case of United States of America, et al v. Bank of America Corp, et al (D. D.C. Case No. 12-00361-RMC).

Given the high level of public interest in the “independent foreclosure review” process and the great issues of public importance regarding the allegations, admissions and issues related to the possible violation(s) of law(s), process(es), criteria and protocol(s) for servicing and foreclosing on residential mortgage loans, standards for “independently” reviewing the foreclosure process(es) engaged in by some of the biggest banks in the world and their related “loan servicers”, as well as the strong public interest in knowing exactly what the OCC and the government did – purportedly on behalf of borrowers like myself – to obtain this settlement, I must make request for documents related to these matters.

Unfortunately, I was not asked to participate in the “independent review” process that has been identified to me nor was I asked to provide any information that may have been helpful in uncovering possible fraud, bad acts and/or criminal activities or behavior by the parties involved (or others that were never identified). This seems odd since I obviously had/have critical information to contribute to this process and likely considerably more – and more accurate – information than the OCC or any “independent” reviewers has or had.

For the record, I have never been provided with any information regarding any review of my mortgage loan file whether “independent” or otherwise. However, such a review apparently identified wrongdoing since I have received a check as compensation.

Due to my personal involvement in these matter(s), I am requesting that a copy of the following documents (or documents containing the following information) be provided to me as soon as possible:

1.) A list of all issues, matters, process(es), review criteria, benchmarks or things, without limitation, that any reviewing party that was retained, hired or contracted with and which list was used and/or operated under in connection with the OCC-mandated review of my mortgage loan file;

2.) The date(s) associated with any list identified in No. 1 above, and the date(s) of the implementation or request for implementation of the issues, matters, process(es), review criteria, benchmarks or things, detailed on any such list related to my mortgage loan file;

3.) Complete and un-redacted copies of each and every written agreement(s) between the OCC (and any other governmental agency) and any third party(s) or entities that was/were retained, hired or contracted with in order to perform and/or conduct any review of my mortgage loan file;

4.) Complete and un-redacted copies of each and every written agreement(s) between any party(s) or entity(s) that were the subject of the OCC/government settlement and/or the April 2012 consent order(s) and any third party(s) or entity(s) retained, hired or contracted with to perform and/or conduct any review of my mortgage loan file;

5.) A list of all documents and records (whether written or electronic, without limitation, that were reviewed or analyzed or required to be reviewed or analyzed by any person(s) or entity(s) in connection my mortgage loan file;

6.) The full names and business address of each and every individual who conducted any type of review or analysis of any matter or thing with respect to the review of my mortgage loan file and the name and business address of any entity(s) any such individual(s) worked for when conducting a review or analysis of my mortgage loan file;

7.) Complete and un-redacted copies written instructions, manuals, directions, criteria, benchmarks, or things provided at any time to any individual(s) or entity(s) who reviewed any matter or thing related to my mortgage loan file;

8.) Your definition(s) of any and all document(s) related to my mortgage loan file and/or that was subject to the review(s) described hereunder;

9.) Complete and un-redacted copies of all written communication(s) of any sort and without limitation (written or electronic) between myself and any party(s) (banks and/or loan servicers, etc.) that were contained in any file that was/were reviewed relative to my mortgage loan;

10.) Complete and un-redacted copies of any and all report(s) that were generated regarding the results of any review or analysis of my mortgage loan file whether preliminary or final;

11.) Complete and un-redacted copies of any and all communications (written or electronic) that were generated by any person(s) or entity(s) related, in any way, to the review and/or analysis of my mortgage loan file;

12.) Complete and un-redacted copies of any and all accounting(s) of – and documentation related in any way thereto – the payment of any moneys to any person(s) or entity(s) hired to review my mortgage loan file.

For the purposes of these request(s), I am an individual seeking information for personal use regarding matters which affect the ownership of my home and possible violation(s) of the laws of either the Commonwealth of Massachusetts or the Unites States. The information I am requesting is not for a commercial use.

Disclosure of the requested information to me is in the public interest because it is timely and likely to contribute significantly to public understanding of the operations or activities of the government, the banking sector(s) the government regulates, an understanding of the depth of the problems associated with foreclosure-related issues in the United States over the past 5 or 6 years and there have been insufficient public explanation(s) or disclosure(s) of any of the process(es), control(s), contractual arrangement(s), mission(s), criteria and/or results of any “independent” foreclosure review process, how these reviews were conducted, by whom and what results were obtained in individual cases such as mine. Accordingly, I request a waiver of all fees for this FOIA request.

Despite my request for a waiver of fees, I am willing to pay fees for this request up to a maximum of $25.00. If you estimate that the fees will exceed this limit, please inform me first.

It is my understanding that the OCC maintains, as a matter of federal law, certain exemptions that the OCC may invoke to prevent having to produce information and documentation under a FOIA request such as this one. It is my belief that none of these exemptions is/are applicable to my request(s).

The nine (9) exemptions – and the reasons why (if arguably applicable) they are not relevant or applicable to my requests – are listed below.

National defense or foreign policy information properly classified pursuant an Executive Order. 5 U.S.C. § 552(b)(1).

Not applicable.

Documents “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2).

Courts have held that there are two (2) separate classes of documents that generally fall within the ambit of exemption 2. A.) information relating to personnel rules or internal agency practices is exempt if it can reasonably be described as a trivial administrative matter of no genuine public interest, such as a rule establishing when agency workers can take sick leave. In Department of the Air Force v. Rose, 425 U.S. 352 (1976), the Supreme Court construed Exemption 2’s somewhat ambiguous language as protecting internal agency matters so routine or trivial that they could not be “subject to . . . a genuine and significant public interest.” Id at 369. The Court declared that Exemption 2 was intended to relieve agencies of the burden of assembling and providing access to any “matter in which the public could not reasonably be expected to have an interest.” Id at 369-70. B.) an internal administrative manual for instance, might be exempt if its disclosure would risk circumvention of law or agency regulations. In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior.

The boundaries of Exemption 2 were described by the Court of Appeals for the District of Columbia as follows:

First, the material withheld should fall within the terms of the statutory language as a personnel rule or internal practice of the agency. Then, if the material relates to trivial administrative matters of no genuine public interest, exemption would be automatic under the statute. If withholding frustrates legitimate public interest, however, the material should be released unless the government can show that disclosure would risk circumvention of lawful agency regulation. Church of Scientology v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983).

Not applicable.

Documents “specifically exempted from disclosure by statute” other than FOIA, but only if the other statute’s disclosure prohibition is absolute. 5 U.S.C. § 552(b)(3).

This exemption simply incorporates into FOIA other laws which restrict the availability of information. Exemption 3 allows the withholding of information prohibited from disclosure by another statute only if one of two (2) disjunctive requirements are met: the statute in question either “(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” A statute thus falls within the exemption’s coverage if it satisfies any one (1) of its disjunctive requirements. See Long v. IRS, 742 F.2d 1173, 1178 (9th Cir. 1984); Irons & Sears v. Dann,606 F.2d 1215, 1220 (D.C. Cir. 1979); American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978). See generally 5 U.S.C. § 552(e)(1)(A)(ii) (provision of Electronic Freedom of Information Act Amendments of 1996 requiring agencies to list Exemption 3 statutes upon which they rely each year in their annual FOIA reports, beginning with reports for Fiscal Year 1998). One example of a qualifying statute is the provision of the Code prohibiting the public disclosure of tax returns and tax return information. See, 26 U.S.C. Sec. 6103. Another qualifying exemption 3 statute is the law designating identifiable census data as confidential. See, 13 U.S.C. Sec. 9.

Not applicable.

Documents which would reveal “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4).

Exemption 4 protects from public disclosure two (2) types of information: (1) trade secrets; and (2) information that is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential. Congress intended this exemption to protect the interests of both the government and submitters of information.

A trade secret is a commercially valuable plan, formula, process, or device. This is a narrow and relatively easily recognized category of information. It is “a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.” Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). An example of a trade secret might be the formula of a gasoline additive. The second form of protected data is “commercial or financial information obtained from a person and privileged or confidential.” Courts have held that data qualifies for withholding if disclosure by the government would be likely to harm the competitive position of the person who submitted the information. Detailed information on a company’s marketing plans, profits, or costs can qualify as confidential business information. Information may also be withheld if disclosure would be likely to impair the government’s ability to obtain similar information in the future.

(a) Generally, the commercial/financial nature of a document is not difficult to ascertain, consequently, the main issue in contest is whether the information is privileged or confidential.

(b) A leading case on this aspect of Exemption 4 sets out the test for exempting commercial information from FOIA disclosure as follows:

“Commercial or financial matter is “confidential” for purposes of [Exemption 4] if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” National Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.Cir. 1974); see also Frasee v. U.S. Forest Service, 97 F.3d 367, 371 (9th Cir. 1996).

This exemption is not applicable to my request(s) since I am only requesting materials related to my personal loan review and such materials are not “trade secrets” since they are based on my own financial information, etc., and would have no impact on any “competitive” position(s) of any parties involved.

Documents which are “inter-agency or intra-agency memorandum or letters” which would be privileged in civil litigation. 5 U.S.C. § 552(b)(5).

(a) Exemption 5 is an exemption very frequently invoked against public interest requesters because the nature of such party’s intended uses are usually to get information regarding the agency’s processes and conclusions. The exemption was intended to incorporate common-law privileges against discovery. Of all such privileges, the one most frequently encountered by public interest requesters is based on the concept of “executive” privilege which protects recommendations and advice which are part of the “deliberative process” involved in governmental decision-making. The rationale being to protect the integrity of agency decision-making by encouraging both full and frank discussions of policy proposals and to prevent premature disclosure of policies under review. The exemption also incorporates other of privileges which would apply in litigation involving the government. For example, papers prepared by the government’s lawyers can be withheld in the same way that papers prepared by private lawyers for clients are not available through discovery in civil litigation. However, this incorporation of possible discovery privileges requires that an asserted privilege be applied in the FOIA context as it would exist in the discovery context. See United States Dep’t of Justice v. Julian, 486 U.S. 1, 13 (1988) (holding that pre-sentence report privilege, designed to protect report subjects, cannot be invoked against them as first-party requesters).

(b) Courts have resolved to distinguish “pre-decisional” documents, which fall within the protections of Exemption 5, and “post-decisional” documents, which must be disclosed. F.T.C. v. Warner Comm. Inc., 742 F2d 1156, 1161 (9th. Cir. 1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-153 (1975) (memos directing agency counsel criteria and actions involved in decision to file complaints are not final dispositions of issue, and are thus protected, while final opinions or dispositions can never be protected by Exemption 5).

(c) Even if a document is pre-decisional, some courts have upheld a distinction between “materials reflecting deliberative or policy-making process on the one hand, and purely factual, investigative matters on the other,” the exemption protects the former, not the latter. EPA v. Mink, 410 U.S. 73, 89 (1973). Those portions of a document which are not exempt must be disclosed unless they are “inextricably intertwined” with the exempt portions. Ryan v. Dept. of Justice, 617 F. 2d 781, 790-91 (D.C. Cir. 1980).

This exemption is not applicable to my request(s) since I am only requesting materials related to my loan review and such materials are being requested after the OCC’s decision to settle with the bank and loan servicers, i.e. “post-decisional” materials. Any “pre-decisional” documents requested hereunder do not fall into a category of information requested that would entitle the OCC to assert Exemption 5 as a privilege since they would not –now that a decision has been made to settle all claims – involve any improper intrusion into the government’s “deliberative” process or represent a “pre-mature” disclosure of information and/or policy considerations that would affect the government’s ability to settle any case(s).

Documents which are “personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

This exemption protects the privacy interests of individuals by allowing an agency to withhold personal data kept in government files. Keep in mind that by the plain terms of the statute, only individuals can have privacy interests. By definition, corporations and other “legal persons” can have no privacy rights under the Exemption 6 because there can be no objective expectation attaching against an “unwarranted invasion of personal privacy.” Occasionally, agencies or business submitters of information will assert Exemption 6 when, in fact, the proper analysis should sound under Exemption 4.

(a) The Supreme Court has reviewed the application of this exemption. It noted: First, in evaluating whether a request for information lies within the scope of a FOIA exemption, such as Exemption 6, that bars disclosure when it would amount to an invasion of privacy that is to some degree ‘unwarranted, ‘a court must balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect.”

Department of Defense v. F.L.R.A., 114 S.Ct. 1006, 1012 (1994).

(b) The Court continued:

Second, the only relevant “public interest in disclosure” to be weighed in this balance is the extent to which disclosure would serve the “core purpose of the FOIA,” which is “contribut[ing] significantly to public understanding of the operations or activities of the government. Id.

In other words, the requested materials must in some way illuminate “what the government is ‘up to'” in order to justify disclosure. The exemption requires agencies to strike a balance between an individual’s privacy interest and the public’s right to know. However, since only a clearly unwarranted invasion of privacy is a basis for withholding, there is a perceptible tilt in favor of disclosure in the exemption. “In the Act generally, and particularly under Exemption (6), there is a strong presumption in favor of disclosure.” Local 598 v. Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988) (emphasis added).

In Local 598, the Ninth Circuit reviewed the context of applicable Exemption 6 case law:

“The Freedom of Information Act embodies a strong policy of disclosure and places a duty to disclose on federal agencies. As the district court recognized, ‘disclosure, not secrecy, is the dominant objective of the Act.’ Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). ‘As a final and overriding guideline courts should always keep in mind the basic policy of the FOIA to encourage the maximum feasible public access to government information….’ Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 715 (D.C.Cir.1977). As a consequence, the listed exemptions to the normal disclosure rule are to be construed narrowly. See Rose, 425 U.S. at 361, 96 S.Ct. at 1599. This is particularly true of Exemption (6). Exemption (6) protects only against disclosure which amounts to a ‘clearly unwarranted invasion of personal privacy.’ That strong language ‘instructs us to ’tilt the balance [of disclosure interests against privacy interests] in favor of disclosure.'” Id. (emphasis added), citing Washington Post Co. v. Department of Health and Human Servs., 690 F.2d 252, 261 (D.C.Cir.1982) (quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir.1975))”.

This exemption is not applicable to my request(s) since only a clearly unwarranted invasion of privacy is a basis for withholding under this exemption. I am requesting materials and documents related to my personal loan review and personal mortgage loan file and requesting any such materials would not result in any “invasion of privacy” since the information requested pertains only to my personal, private financial information.

Documents which are “records or information compiled for law enforcement purposes,” but only if one or more of six (6) specified types of harm would result. 5 U.S.C. §552(b)(7).

Congress intended for Exemption 7 to allow agencies to withhold law enforcement records in order to protect the law enforcement process from interference. The exemption was amended slightly in 1986, but it still retains six (6) specific sub-exemptions.

Exemption (7)(A) provides for the withholding of a law enforcement record the disclosure of which would reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure. Therefore, determining the applicability of this Exemption 7(A) requires a two-step analysis focusing on (1) whether a law enforcement proceeding is pending or prospective and (2) whether release of information about it could reasonably be expected to cause some articulable harm. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978) (holding that government must show how records “would interfere with a pending enforcement proceeding”).