                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
__________________________________
                                      )
United States of America, et al.,     )
ex rel. LAURENCE SCHNEIDER,           )
                                      )
              Plaintiffs,             )
                                      )
        v.                            )    Civil Action No. 14-1047 (RMC)
                                      )
J.P. MORGAN CHASE BANK, N.A.,         )
                                      )
              Defendant.              )
_________________________________     )

                                             OPINION

               Pursuant to the Federal False Claims Act and similar State laws, Relator Laurence

Schneider asserts that J.P. Morgan Chase Bank, N.A. (Chase) submitted false claims relating to

the National Mortgage Settlement and false claims relating to the Home Affordable Modification

Program (HAMP) to decrease its liability to the Federal Government. However, the National

Mortgage Settlement claims are barred because Mr. Schneider failed to engage in the alternative

dispute resolution process mandated by the Settlement on which the claims are based. Mr.

Schneider also fails to state a claim that Defendant falsely certified HAMP compliance because

he does not allege, with factual allegations in support, that the certifications were materially

false. The Complaint will be dismissed.

                                             I. FACTS

        A.     Background

               Following the burst of the housing bubble in 2008, the Federal Government began

to institute measures designed to stabilize the housing and credit markets. Those measures

included the Troubled Asset Relief Program (TARP) and the Making Home Affordable Program,

both programs in the Department of the Treasury. See U.S. Department of the Treasury, TARP


                                                  1
Programs (Nov. 15, 2016), https://www.treasury.gov/initiatives/financial-stability/TARP-

Programs/Pages/default.aspx; U.S. Department of the Treasury, Making Home Affordable (July

22, 2012), https://www.treasury.gov/initiatives/financial-stability/TARP-Programs/housing/

mha/Pages/hamp.aspx. The Making Home Affordable Program included the Home Affordable

Modification Program (HAMP), which used funds from TARP as incentives for banks to modify

first-lien mortgages so that homeowners could lower their mortgage payments. HAMP

continues to this day; its goal is to encourage modification of loans that are at risk of default and

make them more affordable.

               In March 2012, the Federal Government, 49 States, and the District of Columbia

filed complaint in the United States District Court for the District of Columbia against

“numerous banks and loan servicing companies, including Chase, for misconduct related to their

origination and servicing of single family residential mortgages.”1 Second Am. Compl. [Dkt.

102] (SAC) ¶ 56. Other defendant banks included Bank of America Corporation; Countrywide

Bank, FSB; Citibank, N.A.; and Wells Fargo Bank, N.A. Prior to filing the National Mortgage

Complaint, its parties had negotiated a national settlement of its allegations, i.e., the National

Mortgage Settlement. On April 4, 2012, this Court entered consent judgments approving the

National Mortgage Settlement. See e.g., Consent Judgments, United States v. Bank of America

Corp., No. 12-361 (RMC) [Dkts. 10, 11, 12, 13, 14].

               The National Mortgage Settlement was intended “to provide immediate relief to

enable struggling homeowners to avoid foreclosure; to bring badly needed reform to the

mortgage servicing industry; to ensure that foreclosures are lawfully conducted; and to penalize



1
 The March 2012 complaint will be referenced herein as the “National Mortgage Complaint”
and the resulting settlement as the “National Mortgage Settlement.”



                                                  2
the banks for robo-signing misconduct.” SAC ¶ 63. The Court appointed Joseph A. Smith to

serve as Monitor of the Settlement and thereby to oversee implementation of the reforms of

mortgage loan servicing and evaluate compliance by the signatory banks. Exhibit A to the

National Mortgage Settlement was a list of Servicing Standards, which included the following

kinds of standards:

               1. Standards for documents used in foreclosure and bankruptcy
                  proceedings;

               2. Standards for qualifications, training and supervision of
                  employees;

               3. Requirements for accuracy and verification of borrower’s
                  account information;

               4. Standards to ensure documentation of note, holder status and
                  chain of assignment;

               5. Loss mitigation requirements;

               6. Requirements for an easily accessible and reliable single point
                  of contact for potentially-eligible first lien mortgage borrowers;
                  and

               7. Restrictions on servicing fees.

See Consent Judgment, Ex. A, United States v. Bank of America Corp., et al., No. 12-361 (RMC)

[Dkt. 10-1]; see also SAC ¶ 74. The Servicing Standards were implemented through a work plan

for each signatory bank. Compliance was ascertained by the Monitor using “29 Metrics to test

the application and performance of the required Servicing Standards.” SAC ¶ 88. “[T]he

Monitor, through the chain of process, relied on the IRG’s [Internal Review Group’s] testing of

the metrics pursuant to the terms of the Consent Judgment to determine the Defendant’s

compliance with the Consent Judgment.” Id. ¶ 96. At the end of each quarter, Monitor Smith

submitted a report to the Court indicating “(i) the Metrics for that Quarter; (ii) Servicer’s

progress toward meeting its payment obligations under th[e] Consent Judgment; [and] (iii)



                                                  3
general statistical data on Servicer’s overall servicing performance.” Consent Judgment, Ex. E,

United States v. Bank of America Corp., et al., No. 12-361 (RMC) [Dkt. 10-1] at E-9.2

               In addition to the Servicing Standards, the National Mortgage Settlement required

each Defendant to provide a specific dollar amount in consumer relief, which totaled about $25

billion overall. Chase was required “to provide over $4 billion in consumer relief in the form of

loan forgiveness and refinancing.” SAC ¶ 97. Specifically, Chase was required to provide

“$3,675,400,000 of relief to consumers who me[t] the eligibility requirements in paragraphs 1-8

of Exhibit D” to the National Mortgage Settlement and “$537,000,000 of refinancing relief to

consumers who me[t] the requirements of paragraph 9 of Exhibit D.” Id. ¶ 101. Chase received

credits toward its consumer relief amount when it:

                  Allowed borrowers to make First Lien and Second Lien
                   Modifications;

                  Allowed borrowers        to   make       Second   Lien   Portfolio
                   Modifications;

                  Provided borrowers Enhanced Transitional Funds;

                  Facilitated Short Sales for borrowers;

                  Provided borrowers Deficiency Waivers;

                  Provided Forbearance for Unemployed Borrowers; and

                  Assisted in Anti-Blight efforts.




2
  The participating state and federal agencies also “designate[d] an Administration and
Monitoring Committee,” which “serve[d] as the representative of the participating state and
federal agencies in the administration of all aspects of . . . [the] Consent Judgment and the
monitoring of compliance.” Consent Judgment, United States v. Bank of America Corp., et al.,
No. 12-361 (RMC) [Dkt. 10] ¶ 8. The responsibilities and authorities of Monitor Smith and the
Monitoring Committee were detailed in Exhibit E to the Consent Judgment. See Consent
Judgment, Ex. E.



                                                 4
See Consent Judgment, Ex. D, United States v. Bank of America Corp., et al., No. 12-361 (RMC)

[Dkt. 10-1] at D1-D7.

        B.     Relevant Terms of the National Mortgage Settlement

               The National Mortgage Settlement also provided a process for notice and cure in

the event a bank failed to satisfy a Servicing Standard. If Monitor Smith determined that a bank

had exceeded the “negotiated threshold error rate assigned to [any] Metric,” he would notify that

bank and trigger a corrective procedure. United States v. Bank of America, 78 F. Supp. 3d 520,

528 (D.D.C. 2015); see also Consent Judgment, Ex. E at E-11-E-12. “The [bank] ha[d] a right to

cure a Potential Violation within a set cure period.” Id. If the bank cured the errors then “no

Party to the Consent Judgment can sue on the Potential Violation.” Id.

               Parties and the Monitoring Committee were only permitted to “sue to enforce (a)

uncured Potential Violations of Servicing Standards covered by a Metric and (b) Servicing

Standards that are outside the Metric testing/Potential Violation process.” Id. at 532. Prior to

commencing any enforcement action arising out of the Consent Judgment a party was required to

“provide notice to the Monitoring Committee of its intent to bring an action” and allow the

Monitoring Committee 21 days to consider bringing the action itself. Consent Judgment, Ex. E

at E-15. If the Monitoring Committee declined to bring an enforcement action, the party was

obligated to wait an additional 21 days before filing suit. See id.

        C.     Home Affordable Modification Program (HAMP)

               HAMP is a federally-funded foreclosure relief program operated by the

Department of the Treasury, which provides incentive payments to mortgage servicers3 in




3
 A mortgage servicer receives mortgage payments from homeowners, maintains all records, and
enforces the obligations to pay, then forecloses on the home if need be. Mortgage servicers can


                                                 5
exchange for modifying eligible mortgage loans. Eligibility for modification is determined

through an application process, subject to some exceptions. Mortgage servicers participate in

HAMP through a Servicer Participation Agreement with the Federal National Mortgage

Association (Fannie Mae), Treasury’s designated financial agent for HAMP. Treasury also

provided guidance regarding HAMP through the Making Home Affordable Handbook (MHA

Handbook), which requires Servicers to solicit eligible borrowers for HAMP loan modification.

See MHA Handbook at 75-76 (version 5.1 May 26, 2016), available at

https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/mhahandbook

_51.pdf. The MHA Handbook provides exceptions to the solicitation requirement, including

when “the servicer has released the borrower from liability for the debt and provided a copy of

such release to the borrower,” id. at 69, or in active bankruptcy cases. See id. at 73.

               Freddie Mac monitors compliance with HAMP through annual compliance

certificates from the Servicers. In the compliance certificates, each Servicer must report any

instances of noncompliance that had “a material effect on its ability to comply with . . . program

requirements.” Id. at 39.

        D.     Chase Bank’s Performance under the National Mortgage Settlement and
               HAMP

               Chase generally maintains records of the mortgage loans it services through an

electronic “System of Records.” However, loans considered uncollectable (usually because the

value of the property was much less than the outstanding loan) are put in the “Recovery One

population” (RCV1) and those records are maintained outside the primary System of Records.

RCV1 loans are those that Chase deems “valueless based on General Acceptable Accounting


include the originating bank which loaned the money and held the lien or the papers could be
sold to other banks or servicers.



                                                  6
Principles (GAAP) and other internal methods of bookkeeping.” SAC ¶ 174. When Chase

determines that a loan is valueless, it “charges off” the loan, i.e., enters it as a loss on the bank’s

books, and then transfers the loan from its System of Records to RCV1. Chase does not

foreclose on RCV1 loans because it would make no financial sense to foreclose on a valueless

loan; the cost to Chase of attempting foreclosure could never be regained since, by definition, the

residence is worth less than the loan. Both first and second lien mortgages may be transferred to

RCV1, as well as “mortgages that are subject to bankruptcies and post-foreclosure deficiencies.”

Id. ¶ 172. Once a loan is transferred to RCV1, its documentation often becomes “corrupted,

ignored or allowed to fall into disarray,” because it has no business value to Chase. Id.

                Monitoring for compliance with the National Mortgage Settlement continued for

three years for the initial signatories. At that point, Monitor Smith determined that Chase had

provided $4.463 billion in consumer relief, thereby “satisf[ying] the minimum requirements and

obligations . . . imposed upon it under . . . the [National Mortgage Settlement] to provide

Consumer Relief.” Monitor’s Final Consumer Relief Report Regarding Defendant J.P. Morgan

Chase Bank, N.A., United States v. Bank of America Corp., et al., No. 12-361 (RMC) (March 18,

2014) [Dkt. 143] at 20-22, 25.

        E.      Relator’s Interest

                Relator’s allegations arise from certain non-performing mortgage loans that were

serviced by Chase. Over 3,000 loans from Chase’s RCV1 files were sold to companies owned

by or affiliated with the Relator, including S&A Capital Partners, Inc., 1st Fidelity Loan

Servicing, LLC, and Mortgage Resolution Servicing, LLC. Chase later “charged off” or

canceled the amount owed on numerous loans owned by Relator’s entities. In return, Chase

received credit against the National Mortgage Settlement consumer relief amount it was required

to provide because it had released the borrower from liability for the debt.


                                                   7
                                     II. LEGAL STANDARD

           A.   Motion to Dismiss

                A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. See Fed. R. Civ. P.

12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual

information, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A court must assume the truth of all well-pleaded factual allegations and construe reasonable

inferences from those allegations in favor of the plaintiff. See Sissel v. Dep’t of Health &

Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014). A court need not accept inferences drawn by a

plaintiff if such inferences are not supported by the facts set out in the complaint. See Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Further, a court does not need to

accept as true legal conclusions set forth in a complaint. See Iqbal, 556 U.S. at 678. In deciding

a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits or incorporated by reference, and matters about which the

court may take judicial notice. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.

Cir. 2007). A court may take judicial notice of public records from other proceedings. See id. at

1059; Covad Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005)

(permitting judicial notice of facts contained in public records of other proceedings); Mintz v.

FDIC, 729 F. Supp. 2d 276, 277 (D.D.C. 2010) (judicial notice of statement contained in an SEC

filing).

           B.   False Claims Act (FCA), 31 U.S.C. § 3729 et seq.

                The False Claims Act’s “chief purpose . . . is to prevent the commission of fraud

against the federal government and to provide for the restitution of money that was taken from


                                                   8
the federal government by fraudulent means.” United States ex rel. Purcell v. MWI Corp., 824 F.

Supp. 2d 12, 15-16 (D.D.C. 2011). The FCA imposes civil penalties for the submission of false

claims to the United States government. Private parties, called relators, can sue for violations of

the FCA in the name of the United States. See 31 U.S.C. § 3730(b)(1). Special procedures apply

in such cases, which are called qui tam actions—“short for the Latin phrase qui tam pro domino

rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord

the King’s behalf as well as his own.’” Vt. Agency of Nat’l Res. v. United States ex rel. Stevens,

529 U.S. 765, 768 n.1 (2000). When a plaintiff-relator files an initial complaint, it is not

immediately served on the defendant, but is instead served on the United States along with

“written disclosure of substantially all material evidence and information the [plaintiff]

possesses.” 31 U.S.C. § 3730(b)(2). Thereafter, the case is stayed for a minimum of sixty days,

plus any extensions, while the United States determines whether it will intervene—that is,

whether it will “proceed with the action, in which case the action shall be conducted by the

Government; or . . . decline[ ] to take over the action, in which case the person bringing the

action shall have the right to conduct the action.” Id. § 3730(b)(4). If the government declines

to intervene, as happened here, the complaint is unsealed, and the plaintiff-relator may proceed

with the case. Even in cases in which the government has declined to intervene, the government

retains special rights atypical in traditional civil actions, such as the right to receive all pleadings,

intervene at any time for good cause, id. § 3730(c)(3), and petition the Court for a stay of

discovery, id. § 3730(c)(4).

        C.      Heightened Pleading Requirement for Fraud

                Federal Rule of Civil Procedure 8 requires that every complaint include “a short

and plain statement of the claim showing that the pleader is entitled to relief” and that “[e]ach




                                                   9
allegation . . . be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). “[B]ecause the

False Claims Act is self-evidently an anti-fraud statute, complaints brought under it must [also]

comply with Rule 9(b).” United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52

(D.C. Cir. 2002) (noting uniform approach of circuit courts to this issue). Rule 9(b) provides a

heightened pleading standard for a party alleging fraud or mistake, requiring any such party to

“state with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P.

9(b).

               The D.C. Circuit has noted that Rules 8 and 9(b) are not contrary and should be

read in conjunction:

               [T]his means that the pleader must state the time, place and content
               of the false misrepresentations, the fact misrepresented and what
               was obtained or given up as a consequence of the fraud. The rule
               serves to discourage the initiation of suits brought solely for their
               nuisance value, and safeguards potential defendants from frivolous
               accusations of moral turpitude. . . . And because “fraud”
               encompasses a wide variety of activities, the requirements of Rule
               9(b) guarantee all defendants sufficient information to allow for
               preparation of a response.

United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981) (internal quotation

marks and citations omitted); see also United States ex rel. Williams v. Martin-Baker Aircraft

Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004); McQueen v. Woodstream Corp., 248 F.R.D. 73, 77

(D.D.C. 2008) (“Rule 9(b) simply requires the pleader to provide a higher degree of notice by

adequately alleging all of the requisite elements for the cause of action invoked.”). Rule 9(b) is

satisfied when the pleader “provide[s] the ‘who, what, when, where, and how’ with respect to the

circumstances of the fraud.” Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250, 253 (D.D.C.

2004).




                                                 10
               Pleading on “information and belief” for claims subject to the strictures of Rule

9(b) is permitted when essential information lies uniquely within another party’s control. Kowal,

16 F.3d at 1279 n.3 (citing Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628, 646 (3d Cir. 1989)).

To plead on information and belief, however, the plaintiff must allege “that the necessary

information lies within the defendant’s control” and include “a statement of the facts upon which

the allegations are based.” Id.; see also Anderson, 221 F.R.D. at 253.

         D.    Procedural History

                On May 6, 2013, Mr. Schneider filed his initial Complaint as Relator under the

False Claims Act, see 31 U.S.C. § 3730(b)(1), in the United States District Court for the District

of South Carolina. See Compl. [Dkt. 1]. The Federal Government declined to intervene on

January 13, 2014. See Notice [Dkt. 24]. The case was transferred to this Court on June 19,

2014. See Transfer Order [Dkt. 58]. Relator filed his First Amended Complaint on November

17, 2014. See FAC [Dkt. 80]. On August 31, 2015, the Federal Government again declined to

intervene. See FAC Notice [Dkt. 96]. Relator filed a Second Amended Complaint on October 2,

2015. See SAC [Dkt. 102]. Defendant moved to dismiss on November 12, 2015. See Mot.

[Dkt. 105]. Relator opposed, see Opp’n [Dkt. 110], and Defendant replied, see Reply [Dkt.

112].4

               This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 31

U.S.C. § 3730(a). The Court also has supplemental jurisdiction over the State-law counts under

the State False Claims Acts pursuant to 28 U.S.C. § 1367.5 This Court is the proper venue


4
 Relator filed a Notice of Supplemental Authority, see Notice of Supp. Auth. [Dkt. 116], to
which Defendant responded, see Response [Dkt. 117].
5
  Section 1367 provides for supplemental jurisdiction “over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The


                                                11
because the underlying National Mortgage Settlement was approved by this Court and Defendant

conducts business in the District of Columbia. See 31 U.S.C. § 3732(a).

                                         III. ANALYSIS

               Relator alleges that Chase violated the False Claims Act by falsely claiming (1)

that it met Servicing Standards and complied with the consumer relief requirements of the

National Mortgage Settlement and (2) that it met the servicing standards specified in HAMP and,

as required, provided loan modifications to sufficient numbers of eligible borrowers.6

        A.     National Mortgage Settlement Claims

               Relator alleges that Chase’s false claims regarding its compliance with the

National Mortgage Settlement provided Chase with the benefit of credit for consumer relief that

it otherwise should not have received. Chase moves to dismiss for procedural failures and failure

to state a claim upon which relief may be granted.

               Chase cites two issues that it contends preclude Relator’s suit concerning the

National Mortgage Settlement: (1) Relator failed to exhaust the dispute resolution procedures

required by the National Mortgage Settlement before filing suit; and (2) Relator improperly

attacks the Monitor’s determinations that Chase complied with the National Mortgage

Settlement. Indeed, the National Mortgage Settlement provided specific procedures before suit



State-law claims are State False Claims Act claims based on the same facts as the Federal False
Claims Act claims, specifically false claims regarding compliance with the National Mortgage
Settlement.
6
  Relator’s State law claims rest on the same factual allegations as Count I, the federal False
Claims Act claim based on alleged false statements regarding compliance with the National
Mortgage Settlement. Relator provides no additional facts to support the State law claims and
does not argue that any of the State laws would provide for liability in the absence of liability
under the Federal False Claims Act. Therefore, each of the State-law counts will be dismissed
for the same reasons as Count I.



                                                12
or challenge to determinations made by the Monitor. Because Relator stands in the position of

the Federal Government in this case, he is required to have exhausted all remedies the Federal

Government would have been required to exhaust prior to suit. See United States ex rel. Morgan

v. Sci. Applications Int’l Co., 604 F. Supp. 2d 245, 249 (D.D.C. 2009) (finding relator “stands in

the shoes of the federal government as a plaintiff”). Under the National Mortgage Settlement, a

party wishing to dispute compliance by a signatory bank was required to follow explicit steps:

(1) give notice to the allegedly noncompliant bank, the Monitor, and the Monitoring Committee;

and (2) “engage in good faith efforts to reach agreement on the proper resolution of any dispute.”

Consent Judgment, Ex. E at E-14; see also id. at E-15. If the aggrieved party were not assuaged,

it could then notify the Monitoring Committee of its intent to file an enforcement action. The

Monitoring Committee was afforded 21 days to consider whether it would sue before any other

enforcement action could be filed and if the Committee decided not to sue, the moving party was

required to wait another 21 days before commencing litigation. See id. at E-15.

                 Chase argues that because Relator failed to follow these mandatory pre-litigation

steps, which would have constrained the United States, any claims of noncompliance with the

Settlement must be dismissed. Relator responds that the dispute resolution procedures in the

National Mortgage Settlement are not applicable to his FCA allegations because the National

Mortgage Settlement must be read in a manner consistent with the Servicer Participation

Agreement between Fannie Mae and Treasury under HAMP.7 The Servicer Participation

Agreement specifically provides that violations of its terms are subject to the FCA and states:


7
    The National Mortgage Settlement indicates that:

                 The provision of consumer relief by the Servicer in accordance with
                 this Agreement in connection with any residential mortgage loan is
                 expressly subject to, and shall be interpreted in accordance with, as
                 applicable, the terms and provisions of the Servicer Participation


                                                  13
               Servicer acknowledges that the provision of false or misleading
               information to Fannie Mae or Freddie Mac in connection with any
               of the Programs or pursuant to the Agreement may constitute a
               violation of: (a) Federal criminal law involving fraud, conflict of
               interest, bribery, or gratuity violations found in Title 18 of the
               United States Code; or (b) the civil False Claims Act (3 I U.S.C.
               §§ 3729-3733).

Opp’n, Ex. 1 [Dkt. 110-1] (Amended and Restated Commitment to Purchase Financial

Instrument and Servicer Participation Agreement) at B-4. Relator’s confusion between the

National Mortgage Settlement and HAMP pervades his arguments.

               Agreements, like statutes, should be read to avoid surplusage where possible. See

Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2043 (2012) (“[T]he canon against surplusage

merely favors that interpretation which avoids surplusage.”). While Relator would like the Court

to read the National Mortgage Settlement’s alternative dispute resolution process as inconsistent

with the remedies under the HAMP Servicer Participation Agreement, the Court finds they can

readily be reconciled. The National Mortgage Settlement is sui generis and the United States is a

signatory. Relator, who acts on behalf of the United States, is simply bound to its terms in any

complaint of noncompliance. Had Relator first completed the alternative dispute procedure in

the National Mortgage Settlement, he then might have sued. Not having completed the former,

he cannot begin the later.




               Agreement with the U.S. Department of Treasury, . . . provided,
               however, that the inability of a Servicer to offer a type, form or
               feature of the consumer relief payments by virtue of an Applicable
               Requirement shall not relieve the Servicer of its aggregate consumer
               relief obligations imposed by this Agreement.

Consent Judgment, Ex. D at D-12.



                                                14
        B.     HAMP Claim

               Relator argues that Chase violated the FCA by knowingly submitting false or

fraudulent annual certifications that it had complied with HAMP, even though the certifications

“failed to disclose that Chase did not solicit RCV1 borrowers to apply for HAMP loan

modifications.” Opp’n at 31. Chase responds that Relator’s HAMP claims fail as a matter of

law because he “does not adequately allege that Chase’s non-solicitation of RCV1 borrowers

constituted ‘material’ violation of HAMP’s requirements” and “material compliance” is all that

is required under HAMP. Id. (emphasis in original). Chase adds that Relator has failed to allege

that any statements in the Chase HAMP compliance reports were false. Chase also argues that

Relator failed to allege that any false statements were made knowingly because the Federal

Government knew that Chase had not solicited RCV1 borrowers before it wrote off their debts.

               Chase identifies three reasons that its claims, even if “false,” were not “material.”

First, Chase argues Relator fails to allege that a substantial number of borrowers was affected

because RCV1 borrowers might not have qualified for HAMP at all, in that Chase wrote off

second-lien mortgages and forgave others. Chase also argues that Relator does not allege that

“non-solicitation of RCV1 borrowers resulted in injury to those borrowers or interfered with the

goals of the HAMP program,” the fundamental purpose of which “is to avoid unnecessary

foreclosures.” Mot. at 33. Because Chase forgave many RCV1 loans, they were not foreclosed

upon and HAMP was not implicated. Finally, Chase argues Relator failed to allege that Treasury

was unaware of the non-solicitation of RCV1 loans.

               Relator focuses on the definition of “material” in the FCA, which it defines as

“having a natural tendency to influence, or be capable of influencing, the payment or receipt of

money or property.” 31 U.S.C. § 3729(b)(4). Relator argues that his Second Amended




                                                15
Complaint infers that a substantial number of borrowers was impacted due to his allegations

concerning the number of loans in the RCV1 system and the Monitor’s final report concerning

Chase’s loans reported eligible for modification under the National Mortgage Settlement.8

Relator urges the Court to assume that HAMP compliance personnel had no notice of Chase’s

policies and procedures related to RCV1 loans. His argument starts with his allegations that

“Chase underreported to the Monitor” and concludes that Chase must also have underreported to

HAMP. Finally, Relator argues that the materiality of the violations can be presumed because

the United States Trustee Program found that Chase violated a separate 2011 Consent Judgment

with the Office of the Comptroller of the Currency (OCC).

               The False Claims Act imposes liability on any person who “knowingly presents,

or causes to be presented, a false or fraudulent claim for payment or approval.” 31 U.S.C.

§ 3729(a)(1)(A).9 There are three elements to FCA presentment under § 3729(a)(1)(A): (1) the

defendant presented a claim for payment or approval to the Federal Government; (2) the claim

was “false or fraudulent”; and (3) the defendant acted knowing that the claim was false or

fraudulent when he submitted it. United States ex rel. Schwedt v. Planning Research Corp., 59

F.3d 196, 198-99 (D.C. Cir. 1995). A “claim,” as relevant here, is “any request or demand,

whether under a contract or otherwise, for money or property and whether or not the United

States has title to the money or property, that (i) is presented to an officer, employee, or agent of


8
  Relator does not respond to Chase’s argument concerning HAMP’s materiality requirement,
focusing instead on the Monitor’s reports of compliance with the National Mortgage Settlement;
he, thus, waives the argument. See Jones v. Air Line Pilots Ass’n, 713 F. Supp. 2d 29, 39
(D.D.C. 2010).
9
 31 U.S.C. § 3729 was amended in May 2009, see Pub. L. 111-21, § 4(a), 123 Stat. 1621 (May
20, 2009), and § 3730 was amended in July 2010, see Pub. L. 111-203, Title X, § 1079 A(c), 124
Stat. 2079 (July 21, 2010). The post-amendment versions apply to the allegations here, all of
which took place in September 2010 or later. See SAC ¶¶ 297-304.



                                                 16
the United States.” 31 U.S.C. § 3729(b)(2)(A). The term “knowing” means that a person either

“(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or

falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the

information,” but it does not require “proof of specific intent to defraud.” Id. § 3729(b)(1)(A),

(B).

                   The FCA also provides a cause of action against any person who “knowingly

makes, uses, or causes to be made or used, a false record or statement material to a false or

fraudulent claim.” Id. § 3729(a)(1)(B). “Material” is defined as “having a natural tendency to

influence, or be capable of influencing, the payment or receipt of money or property.” Id.

§ 3729(b)(4). Thus, under the law, a plaintiff must allege that (1) the defendant made or used a

“record or statement”; (2) the record or statement was false; (3) the defendant knew it was false;

and (4) the record or statement was “material” to a false or fraudulent claim. Id. § 3729(a)(1)(B).

Because Rule 9(b) applies, “the pleader must state the time, place and content of the false

misrepresentations [and] the fact misrepresented.” Joseph, 642 F.2d at 1385 (interpreting prior

section (a)(2)).

                   A plaintiff’s task is to “plead factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,” United States ex rel.

Westrick v. Second Chance Body Armor, Inc., 685 F. Supp. 2d 129, 133 (D.D.C. 2010), because

“[w]hile . . . Rule 9(b) requires more particularity than Rule 8 . . . Rule 9(b) does not completely

vitiate the liberality of Rule 8.” United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am.,

Inc., 238 F. Supp. 2d 258, 269 (D.D.C. 2002).10 Chase contends that its HAMP disclosures to


10
  Rule 8 requires that every complaint include “a short and plain statement of the claim showing
that the pleader is entitled to relief” and that “[e]ach allegation . . . be simple, concise, and
direct.” Fed. R. Civ. P. 8(a)(2), (d)(1).



                                                     17
Fannie Mae were not materially false because HAMP imposes a distinct disclosure requirement

of “instances of noncompliance that [the servicer] believes have a material effect on its ability to

comply with MHA program requirements.” MHA Handbook at 38 (emphasis added). In light of

the terms set by Treasury, noncompliance with HAMP would be shown only if Chase’s non-

solicitation of RCV1 loans for HAMP modification had a material effect on Chase’s “ability to

comply” with the Making Home Affordable program requirements. Relator makes no such

allegations. His arguments concerning RCV1 loans eligible for modification focus on their

eligibility under the National Mortgage Settlement, not HAMP. Although this is an FCA

lawsuit, a violation of the certification prong of FCA can be found only if a party makes a “false

representation of compliance with an applicable federal statute, federal regulation, or contractual

term.” SAIC, 626 F.3d at 1266. Such has not been alleged.

               Federal Rule of Civil Procedure 9(b) requires Mr. Schneider to allege “the time,

place and content of the false misrepresentations [and] the fact misrepresented.” Joseph, 642

F.2d at 1385. Section VI of Mr. Schneider’s Second Amended Complaint identifies the

“Documentation Containing False Claims” and notes the date of each document. SAC at 66.

The Court identifies two instances of alleged false claims relevant to HAMP in the Complaint:

               On September 10, 2010, Chase filed a Certification of compliance
               with its “Commitment to Purchase Financial Instrument and
               Servicer Participation Agreement.” This certification contained
               False Claims.

               On September 10, 2010, Chase’s subsidiary, EMC, filed a
               Certification of compliance with its “Commitment to Purchase
               Financial Instrument and Servicer Participation Agreement.” This
               Certification contained False Claims.




                                                 18
SAC ¶¶ 303-04.11 Both of these instances of alleged false claims occurred in 2010, before the

National Mortgage Settlement in 2012 and, therefore, any data about RCV1 loans discharged and

reported to the Monitor as a result of the National Mortgage Settlement in 2012 or later are

irrelevant to the falsity of the alleged claims made under HAMP in 2010. Relator’s Complaint

focuses on actions during the 3-year compliance period of the National Mortgage Settlement

period and provides no allegations identifying the “fact misrepresented” to the HAMP

compliance monitor in 2010.

               Relator’s argument that the 2011 Consent Judgment with the OCC also

demonstrates material false statements by Chase fares no better. Relator does not allege that the

OCC Consent Judgment includes a determination that Chase violated HAMP or failed to comply

with the notice requirements of HAMP. Additionally, Relator fails to allege that any part of the

OCC Consent Judgment was substantially similar to requirements under HAMP and could,

therefore, demonstrate material misrepresentations by Chase under HAMP. Relator is

effectively asking the Court to assume that Chase’s admission of wrongdoing in an unrelated

Consent Judgment is evidence that Chase made false statements to Fannie Mae regarding its

HAMP compliance. Without facts specific to HAMP and allegations regarding the materiality of

any misrepresentations concerning Chase’s HAMP-specific compliance obligations, Relator’s

FCA claims under HAMP must be dismissed.

        C.     State Claims

               Counts III through XXIII raise the following State law claims:

               Count III: California False Claims Act, Cal. Gov’t Code
               § 12651(a)(7)


11
  All other paragraphs in Section VI of the Second Amended Complaint specify notices or
reports submitted by Chase to Monitor Smith under the National Mortgage Settlement.



                                                19
                 Count IV: Delaware False Claims Act, Del. Code Ann. tit. 6,
                 § 1201(a)(7)

                 Count V: District of Columbia False Claims Act, D.C. Code § 2-
                 308.14(a)(7)12

                 Count VI: Florida False Claims Act, Fla. Stat. § 68.082(2)(g)

                 Count VII: Georgia False Claims Act, Ga. Code Ann. § 23-3-
                 121(a)(7)

                 Count VIII: Hawaii False Claims Act, Haw. Rev. Stat. § 661-
                 21(a)(6)

                 Count IX: Illinois Whistleblower Reward and Protection Act, 740
                 Ill. Comp. Stat. § 175/3(a)(1)(G)

                 Count X: Indiana False Claims and Whistleblower Protection Act,
                 Ind. Code § 5-11-5.5-2(b)(6)

                 Count XI: Iowa False Claims Act, Iowa Code § 685.2(1)(g)

                 Count XII: Massachusetts False Claims Act, Mass. Gen. Laws ch.
                 12, § 5B(a)(9)

                 Count XIII:      Minnesota False Claims Act, Minn. Stat.
                 § 15C.02(a)(7)

                 Count XIV: Montana False Claims Act, Mont. Code Ann. § 17-8-
                 403(1)(g)

                 Count XV:       Nevada False Claims Act, Nev. Rev. Stat.
                 § 357.040(1)(g)

                 Count XVI: New Hampshire False Claims Act, N.H. Rev. Stat.
                 Ann. § 167:61-b(I)(e)

                 Count XVII: New Jersey False Claims Act, N.J. Stat. Ann.
                 § 2A:32C-3(g)




12
     The District of Columbia False Claims Act has been recodified at D.C. Code Ann. § 2-381-02.



                                                 20
              Count XVIII: New Mexico Fraud Against Taxpayers Act, N.M.
              Stat. Ann. § 44-9-3(A)(8)13

              Count XIX: New York False Claims Act, N.Y. State Fin. Law
              § 189(1)(g)

              Count XX: North Carolina False Claims Act, N.C. Gen. Stat. § 1-
              607(a)(7)

              Count XXI: Rhode Island False Claims Act, 9 R.I. Gen. Laws § 9-
              1.1-3(a)(7)

              Count XXII: Tennessee Fraud Against Taxpayers Act, Tenn. Code
              Ann. § 4-18-103(a)(7)

              Count XXIII: Virginia Fraud Against Taxpayers Act, Va. Code
              Ann. § 8.01-216.3(A)(7)

Each State law count includes the same claim based on the National Mortgage Settlement, to

which each of the States and the District of Columbia was a party and signatory. Relator alleges:

              Chase knowingly, or acting in deliberate ignorance and/or reckless
              disregard of the truth, made, used, or caused to be made or used,
              false records and/or statements material to an obligation to pay or
              transmit money or property to the State of California, and/or
              knowingly, or acting in deliberate ignorance and/or with reckless
              disregard of the truth, made, used, or caused to be made or used false
              records and/or statements to conceal, avoid, or decrease an
              obligation to pay or transmit money or property to the State of
              California. These false statements and false records include various
              reports to the Monitor and the IRG Assertions containing
              certifications that Chase had complied with the Servicing Standards
              and Consumer Relief Requirements of the Consent Judgment.

E.g., SAC ¶ 317 (Count III). Because Relator’s State law claims rest on the same allegedly false

allegations as the Federal FCA claim, dismissed above, the State law claims will also be

dismissed.




13
   The Complaint cites to the New Mexico Medicaid False Claims Act, N.M. Stat. Ann. § 27-14-
5; but the Court interprets the Complaint as intending to reference the New Mexico Fraud
Against Taxpayers Act.



                                               21
        D.     Leave to Amend

               In Opposition, Relator asks for leave to file a third amended complaint should the

Court find merit in the Motion to Dismiss. “[T]he D.C. Circuit has cautioned that ‘failure to

plead fraud with particularity . . . does not support a dismissal with prejudice; to the contrary,

leave to amend is almost always allowed to cure deficiencies in pleading fraud.’” Pencheng Si v.

Laogai Research Found., No. 09-2388, 2013 WL 4478953, at *2 (D.D.C. Aug. 21, 2013)

(quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). Relator has already filed

two amended complaints. He intimates no facts that could rescue his FCA allegations relating to

the National Mortgage Settlement and the undisputed facts show that an amendment would be

futile. The Court will dismiss Relator’s claims of Chase noncompliance with the National

Mortgage Settlement with prejudice and his claims of Chase noncompliance with HAMP without

prejudice.

                                        IV. CONCLUSION

               For the reasons set forth above, Defendant’s Motion to Dismiss, Dkt. 105, will be

granted. Counts I and III through XXIII will be dismissed with prejudice. Count II will be

dismissed without prejudice. A memorializing Order accompanies this Opinion.



Date: December 22, 2016                                               /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




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