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    Powell et al v. Ocwen Financial Corporation et al 29 U.S. Code § 1109.Liability for breach of fiduciary duty

    • Date
      March 5, 2018
    • City/County
      New York
    • Type of Case
      Cause: 29:1109 Breach of Fiduciary Duties, Nature of Suit: 791 Labor: E.R.I.S.A, Jurisdiction: Federal Question
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    Title

    Powell et al v. Ocwen Financial Corporation et al 29 U.S. Code § 1109.Liability for breach of fiduciary duty

    Date
    March 5, 2018
    State or Country
    New York
    County/City:
    New York
    The Court the Case was filed in

    U.S. District Court Southern District of New York (Foley Square)

    Type of Case
    Cause: 29:1109 Breach of Fiduciary Duties, Nature of Suit: 791 Labor: E.R.I.S.A, Jurisdiction: Federal Question
    Case Number

    1:18-cv-01951-VSB-SDA

    Judges

    Assigned to: Judge Vernon S. Broderick
    Referred to: Magistrate Judge Stewart D. Aaron

    Plaintiff

    Ronald E. Powell
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    Robert O'Toole
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    Robert Wilson
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    Brian Jordan
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    Donald G Schaper
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    William R. Seehafer
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund

    Defendant

    Ocwen Financial Corporation
    Ocwen Loan Servicing, LLC
    Ocwen Mortgage Servicing, Inc
    Altisource Portfolio Solutions, S.A.
    Altisource Residential Corporation
    Altisource Asset Management Corporation
    Assurant, Inc.
    Standard Guaranty Insurance Company
    American Security Insurance Company
    Voyager Indemnity Insurance Company
    American Bankers Insurance Company of Florida
    HomeSure Services, Inc
    Cross Country Homes Services, Inc.
    HomeSure of America, Inc.
    Homesure Protection of Virginia Inc
    Wells Fargo Bank, N.A.
    Altisource Solutions, Inc.
    REALHome Services and Solutions, Inc.
    Altisource Online Auctions, Inc.
    Southwest Business Corporation

    Plaintiff Attorney

    Ronald E. Powell
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    represented by Justin Silver Brooks
    Guttman Buschner & Brooks PLLC
    4100VPowelton Avenue
    Philadelphia, PA 19104
    202-800-3001
    Fax: 202-800-3000
    Email: jbrooks@gbblegal.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    Stull Stull & Brody
    6 East 45th Street, 5th Floor
    New York, NY 10017
    212-687-7230
    Fax: 212-4902022
    Email: abrody@ssbny.com
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    Lowey Dannenberg, P.C.
    44 South Broadway, Suite 1100
    White Plains, NY 10601
    914-997-0500
    Email: cmcphaul@lowey.com
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    Lowey Dannenberg P.C.
    44 South Broadway, Suite 1100
    White Plains, NY 10601
    (914) 997-0500
    Fax: (914) 997-0035
    Email: dharrison@lowey.com
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    Guttman, Buschner & Brooks PLLC
    41-30 46th Street
    Sunnyside, NY 11104
    (860)-388-7579
    Fax: (212)336-7909
    Email: lshofner@gbblegal.com
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    Abraham, Fruchter & Twersky, LLP
    One Penn Plaza
    Suite 2805
    New York, NY 10119
    212-279-5050
    Fax: 212-279-3655
    Email: mklein@aftlaw.com
    TERMINATED: 03/28/2019
    R. Bradley Miller
    Guttman, Buschner & Brooks
    2000 P St., NW
    Suite 300
    Washington, DC 20036
    919-608-0795
    Email: bmiller@gbblegal.com
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    Lowey Dannenberg P.C.
    44 South Broadway, Suite 1100
    White Plains, NY 10601
    (914)-997-0500
    Fax: (914)-997-0035
    Email: spapp@lowey.com
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    Lowey Dannenberg P.C.
    44 South Broadway, Suite 1100
    White Plains, NY 10601
    (914) 997-0500
    Fax: (914) 997-0035
    Email: bhart@lowey.com
    ATTORNEY TO BE NOTICED

    Plaintiff
    Robert O'Toole
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    represented by Justin Silver Brooks
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    (See above for address)
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    (See above for address)
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    (See above for address)
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    (See above for address)
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    (See above for address)
    TERMINATED: 03/28/2019
    R. Bradley Miller
    (See above for address)
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    (See above for address)
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    (See above for address)
    ATTORNEY TO BE NOTICED
    Plaintiff
    Robert Wilson represented by Justin Silver Brooks
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    (See above for address)
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    (See above for address)
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    (See above for address)
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    (See above for address)
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    (See above for address)
    TERMINATED: 03/28/2019
    R. Bradley Miller
    (See above for address)
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    (See above for address)
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    (See above for address)
    ATTORNEY TO BE NOTICED

    Plaintiff
    Brian Jordan
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    represented by Justin Silver Brooks
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    (See above for address)
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    (See above for address)
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    (See above for address)
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    (See above for address)
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    (See above for address)
    TERMINATED: 03/28/2019
    R. Bradley Miller
    (See above for address)
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    (See above for address)
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    (See above for address)
    ATTORNEY TO BE NOTICED

    Plaintiff
    Donald G Schaper
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    represented by Justin Silver Brooks
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    (See above for address)
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    (See above for address)
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    (See above for address)
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    (See above for address)
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    (See above for address)
    TERMINATED: 03/28/2019
    R. Bradley Miller
    (See above for address)
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    (See above for address)
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    (See above for address)
    ATTORNEY TO BE NOTICED

    Plaintiff
    William R. Seehafer
    as Trustee of The United Food &
    Commercial Workers Union & Employers
    Midwest Pension Fund
    represented by Justin Silver Brooks
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Aaron Lee Brody
    (See above for address)
    ATTORNEY TO BE NOTICED
    Christina McPhaul
    (See above for address)
    ATTORNEY TO BE NOTICED
    David Charles Harrison
    (See above for address)
    ATTORNEY TO BE NOTICED
    Elizabeth Hardeman Shofner
    (See above for address)
    ATTORNEY TO BE NOTICED
    Michael Jason Klein
    (See above for address)
    TERMINATED: 03/28/2019
    R. Bradley Miller
    (See above for address)
    ATTORNEY TO BE NOTICED
    Scott Vincent Papp
    (See above for address)
    ATTORNEY TO BE NOTICED
    Barbara J. Hart
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant Attorney

    Defendant
    Ocwen Financial Corporation represented by Aaron Michael Rubin
    Orrick, Herrington & Sutcliffe LLP
    (NYC)
    51 West 52nd Street
    New York, NY 10019
    (212)-506-3785
    Fax: (212)-506-5151
    Email: amrubin@orrick.com
    ATTORNEY TO BE NOTICED
    Claudia Wilson Frost
    Orrick, Herrington & Sutcliffe LLP
    (Houston)
    609 Main Street, 40th Floor
    Houston, TX 77002
    (713) 658-6460
    Fax: (713) 658-6401
    Email: cfrost@orrick.com
    ATTORNEY TO BE NOTICED
    John Ansbro
    Orrick, Herrington & Sutcliffe LLP
    (NYC)
    51 West 52nd Street
    New York, NY 10019
    (212) 506-5000
    Fax: (212) 506-5151
    Email: jansbro@orrick.com
    ATTORNEY TO BE NOTICED
    Kenneth Patrick Herzinge
    Orrick, Herrington & Sutcliffe LLP
    405 Howard Street
    San Francisco, CA 94105
    (415)-773-5409
    Fax: (415)-773-5759
    Email: kherzinger@orrick.com
    ATTORNEY TO BE NOTICED
    Richard Andre Jacobsen , Jr.
    Orrick, Herrington & Sutcliffe LLP
    666 Fifth Avenue
    New York, NY 10103
    (212) 506-3743
    Fax: (212) 506-5151
    Email: rjacobsen@orrick.com
    ATTORNEY TO BE NOTICED
    Thomas Nill Kidera
    Orrick, Herrington & Sutcliffe LLP
    (NYC)
    51 West 52nd Street
    New York, NY 10019
    (212)-506-5277
    Fax: (212)-506-5151
    Email: tkidera@orrick.com
    ATTORNEY TO BE NOTICED

    Defendant
    Ocwen Loan Servicing, LLC represented by Aaron Michael Rubin
    (See above for address)
    ATTORNEY TO BE NOTICED
    Claudia Wilson Frost
    (See above for address)
    ATTORNEY TO BE NOTICED
    John Ansbro
    (See above for address)
    ATTORNEY TO BE NOTICED
    Kenneth Patrick Herzinger
    (See above for address)
    ATTORNEY TO BE NOTICED
    Richard Andre Jacobsen , Jr.
    (See above for address)
    ATTORNEY TO BE NOTICED
    Thomas Nill Kidera
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Ocwen Mortgage Servicing, Inc. represented by Aaron Michael Rubin
    (See above for address)
    ATTORNEY TO BE NOTICED
    Claudia Wilson Frost
    (See above for address)
    ATTORNEY TO BE NOTICED
    John Ansbro
    (See above for address)
    ATTORNEY TO BE NOTICED
    Kenneth Patrick Herzinger
    (See above for address)
    ATTORNEY TO BE NOTICED
    Richard Andre Jacobsen , Jr.
    (See above for address)
    ATTORNEY TO BE NOTICED
    Thomas Nill Kidera
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Altisource Portfolio Solutions, S.A.

    Defendant
    Altisource Residential Corporation represented by Joseph De Simone
    Mayer Brown LLP (NY)
    1221 Avenue of the Americas, 14th Floor
    New York, NY 10020-1001
    (212) 506-2500
    Fax: (212) 262-1910
    Email: jdesimone@mayerbrown.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Kevin Charles Kelly
    Mayer Brown LLP (NY)
    1221 Avenue of the Americas, 14th Floor
    New York, NY 10020-1001
    212 506 2497
    Email: kkelly@mayerbrown.com
    ATTORNEY TO BE NOTICED
    Paul Whitfield Hughes
    McDermott Will & Emery
    500 North Capitol Street, N.W.
    Washington, DC 20001
    202-756-8981
    Email: PHughes@mwe.com
    ATTORNEY TO BE NOTICED

    Defendant
    Altisource Asset Management
    Corporation
    represented by Joseph De Simone
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Kevin Charles Kelly
    (See above for address)
    ATTORNEY TO BE NOTICED
    Paul Whitfield Hughes
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Assurant, Inc. represented by Katherine Leigh Villanueva
    Faegre Drinker Biddle & Reath LLP
    One Logan Square
    Suite 2000
    Philadelphia, PA 19103
    215-988-2700
    Fax: 215-988-2757
    Email: kate.villanueva@faegredrinker.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Brian Patrick Perryman
    Faegre Drinker Biddle & Reath LLP
    Suite 1100
    1500 K Street, N.W.
    Washington, DC 20005-1209
    202-842-8800
    Fax: 202-842-8465
    Email:
    Brian.Perryman@faegredrinker.com
    ATTORNEY TO BE NOTICED
    Frank G. Burt
    Faegre Drinker Biddle & Reath LLP
    Suite 1100
    1500 K Street, N.W.
    Washington, DC 20005-1209
    202-230-5227
    Fax: 202-842-8465
    Email: frank.burt@faegredrinker.com
    PRO HAC VICE
    ATTORNEY TO BE NOTICED
    Nora Anne Valenza-Frost
    Carlton Fields Jorden Burt, P.A.
    405 Lexington Ave., 29th Floor
    New York, NY 10174
    (212)-785-2577
    Fax: (212)-785-5203
    Email: nvalenza-frost@cfjblaw.com
    TERMINATED: 03/06/2019
    Robert Wagner Diubaldo
    Carlton Fields Jorden Burt, P.A.
    405 Lexington Ave., 36th Floor
    New York, NY 10174
    (212)-785-2577
    Fax: (212)-785-5203
    Email: rdiubaldo@carltonfields.com
    TERMINATED: 03/04/2019
    William Glenn Merten
    Faegre Drinker Biddle & Reath LLP
    Suite 1100
    1500 K Street, N.W.
    Washington, DC 20005-1209
    202-230-5235
    Fax: 202-842-8465
    Email: Glenn.Merten@dbr.com
    ATTORNEY TO BE NOTICED

    Defendant
    Standard Guaranty Insurance
    Company
    represented by Katherine Leigh Villanueva
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Brian Patrick Perryman
    (See above for address)
    ATTORNEY TO BE NOTICED
    Frank G. Burt
    (See above for address)
    PRO HAC VICE
    ATTORNEY TO BE NOTICED
    Nora Anne Valenza-Frost
    (See above for address)
    TERMINATED: 03/06/2019
    Robert Wagner Diubaldo
    (See above for address)
    TERMINATED: 03/04/2019
    William Glenn Merten
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    American Security Insurance Company represented by Katherine Leigh Villanueva
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Brian Patrick Perryman
    (See above for address)
    ATTORNEY TO BE NOTICED
    Frank G. Burt
    (See above for address)
    PRO HAC VICE
    ATTORNEY TO BE NOTICED
    Nora Anne Valenza-Frost
    (See above for address)
    TERMINATED: 03/06/2019
    Robert Wagner Diubaldo
    (See above for address)
    TERMINATED: 03/04/2019
    William Glenn Merten
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Voyager Indemnity Insurance
    Company
    represented by Katherine Leigh Villanueva
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Brian Patrick Perryman
    (See above for address)
    ATTORNEY TO BE NOTICED
    Frank G. Burt
    (See above for address)
    PRO HAC VICE
    ATTORNEY TO BE NOTICED
    Nora Anne Valenza-Frost
    (See above for address)
    TERMINATED: 03/06/2019
    Robert Wagner Diubaldo
    (See above for address)
    TERMINATED: 03/04/2019
    William Glenn Merten
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    American Bankers Insurance Company
    of Florida
    represented by Katherine Leigh Villanueva
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Brian Patrick Perryman
    (See above for address)
    ATTORNEY TO BE NOTICED
    Frank G. Burt
    (See above for address)
    PRO HAC VICE
    ATTORNEY TO BE NOTICED
    Nora Anne Valenza-Frost
    (See above for address)
    TERMINATED: 03/06/2019
    Robert Wagner Diubaldo
    (See above for address)
    TERMINATED: 03/04/2019
    William Glenn Merten
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    HomeSure Services, Inc. represented by David John Fioccola
    Morrison & Foerster LLP (NYC)
    250 West 55th Street
    New York, NY 10019
    212-468-8000
    Fax: 212-468-7900
    Email: dfioccola@mofo.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Jessica Kaufman
    Morrison & Foerster LLP (NYC)
    250 West 55th Street
    New York, NY 10019
    212-468-8000
    Fax: 212-468-7900
    Email: jkaufman@mofo.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Robert James Baehr
    Morrison & Foerster LLP (NYC)
    250 West 55th Street
    New York, NY 10019
    (212)-336-4339
    Fax: (212)-468-7900
    Email: rbaehr@mofo.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Francesca G Cocuzza
    Morrison & Foerster LLP (NYC)
    250 West 55th Street
    New York, NY 10019
    (212)-468-8000
    Fax: (212)-468-7900
    Email: fcocuzza@mofo.com
    TERMINATED: 09/14/2018

    Defendant
    Cross Country Homes Services, Inc. represented by David John Fioccola
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Jessica Kaufman
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Robert James Baehr
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Francesca G Cocuzza
    (See above for address)
    TERMINATED: 09/14/2018

    Defendant
    HomeSure of America, Inc. represented by David John Fioccola
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Jessica Kaufman
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Robert James Baehr
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Francesca G Cocuzza
    (See above for address)
    TERMINATED: 09/14/2018

    Defendant
    Homesure Protection of Virginia Inc. represented by David John Fioccola
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Jessica Kaufman
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Robert James Baehr
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Francesca G Cocuzza
    (See above for address)
    TERMINATED: 09/14/2018

    Defendant
    Wells Fargo Bank, N.A. represented by Amanda Leigh Dollinger
    Jones Day (NYC)
    250 Vesey Street
    New York, NY 10281
    212-326-3939
    Fax: 212-755-7306
    Email: adollinger@jonesday.com
    ATTORNEY TO BE NOTICED
    Benjamin Garrett Minegar
    Jones Day
    500 Grant Street, Suite 4500
    Pittsburgh, PA 15219
    412-391-3939
    Email: bminegar@jonesday.com
    ATTORNEY TO BE NOTICED
    Evan Miller
    Jones Day
    51 Louisiana Ave., Nw
    Washington, DC 20001
    (202) 879-3840
    Fax: (202) 626-1700
    Email: emiller@jonesday.com
    ATTORNEY TO BE NOTICED
    Howard Fredrick Sidman
    Jones Day (NYC)
    250 Vesey Street
    New York, NY 10281
    212-326-3939
    Fax: 212-755-7306
    Email: hfsidman@jonesday.com
    ATTORNEY TO BE NOTICED
    Rebekah B. Kcehowski
    Jones Day
    500 Grant Street, Suite 4500
    Pittsburgh, PA 15219
    (412)-394-7935
    Fax: (412)-394-7959
    Email: rbkcehowski@jonesday.com
    ATTORNEY TO BE NOTICED

    Defendant
    Altisource Solutions, Inc. represented by Joel M. Miller
    Miller & Wrubel, P.C.
    570 Lexington Avenue,25th Floor
    New York, NY 10022
    212 336 3501
    Fax: 212 336 3555
    Email: jmiller@goulstonstorrs.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Charles Richard Jacob , III
    Miller & Wrubel, P.C.
    570 Lexington Avenue,25th Floor
    New York, NY 10022
    (212) 336-3500
    Fax: (212) 336-3555
    Email: cjacob@goulstonstorrs.com
    ATTORNEY TO BE NOTICED
    Isabel Polly Sukholitsky
    Goulston & Storrs PC
    885 Third Avenue, 18th Floor
    New York, NY 10022
    212-878-6900
    Fax: 212-878-6911
    Email: isukholitsky@goulstonstorrs.com
    ATTORNEY TO BE NOTICED

    Defendant
    REALHome Services and Solutions,
    Inc.
    represented by Joel M. Miller
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Charles Richard Jacob , III
    (See above for address)
    ATTORNEY TO BE NOTICED
    Isabel Polly Sukholitsky
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Altisource Online Auctions, Inc. represented by Joel M. Miller
    (See above for address)
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED
    Charles Richard Jacob , III
    (See above for address)
    ATTORNEY TO BE NOTICED
    Isabel Polly Sukholitsky
    (See above for address)
    ATTORNEY TO BE NOTICED

    Defendant
    Southwest Business Corporation represented by Christopher Russo
    Traub Lieberman Straus & Shrewsbury
    LLP
    Seven Skyline Drive
    Hawthorne, NY 10532
    (914) 347-2600
    Fax: (914)-347-8898
    Email: crusso@traublieberman.com
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED

    Comments

    A very interesting ACTIVE case in NYC

    The Law: 29 U.S. Code § 1109.Liability for breach of fiduciary duty

    (a)Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title.

    (b)No fiduciary shall be liable with respect to a breach of fiduciary duty under this subchapter if such breach was committed before he became a fiduciary or after he ceased to be a fiduciary.

    I. INTRODUCTION

    1. This is a civil enforcement action under the Employee Retirement Income Security Act of
    1974 (“ERISA”), 29 U. S. C. § 1001 et seq.

    2. The conduct at issue here relates to the widespread securitization of residential mortgages
    that precipitated the 2008 financial crisis. The misconduct in mortgage securitization and the
    harm it caused is well-known and has been the subject of much litigation.1 Most of that litigation
    has now concluded or is in its last throes. Defendants’ misconduct came later, after the housing
    bubble burst, mortgage lending collapsed, homeowners’ equity disappeared and millions of
    homeowners went underwater, defaults on mortgages and foreclosures became rampant, and
    investments in mortgages became toxic assets.

    3. Plaintiffs are trustees of the United Food & Commercial Workers Unions & Employers
    Midwest Pension Plan (“the Plan” or “the UFCW Plan”), a benefit plan subject to the protections
    of ERISA. Like many other private benefit plans subject to the protections of ERISA (“benefit plans”), the Plan invested in residential mortgages through financial instruments known as
    mortgage-backed securities.

    4. Benefit plans invested in securitized mortgages either directly, as did the Plan here, or
    through entities whose underlying assets include plan assets by reason of one or more more
    benefit plans’ investment in the entity. 29 C.F.R. §2510.3-101(f)(2)(iii).

    5. Investments in securitized mortgages are made through either indenture trusts or trusts
    governed by pooling and servicing agreements (“PSAs”). Both types of trusts are pooled
    investment vehicles with no assets other than the pool of securitized mortgages and related
    property, such as REO and insurance. A trustee holds legal title to the assets of both indenture
    and PSA trusts for the benefit of investors.

    6. Indenture trusts establish special purpose vehicles (“SPVs”) to issue non-recourse debt
    obligations, or notes, and transfer legal ownership of the pool of mortgages and related property
    to the indenture trustee for the benefit of investors. The SPVs nominally issue the notes but hold
    no assets after these transfers are effectuated and engage in no activity to generate revenue. The
    only source of payment on the notes is revenue from the pool of mortgages. PSA trusts issue
    pass-through certificates that represent beneficial ownership interest in the pool of mortgages and
    related property for which the trustee of the PSA trust holds legal ownership for the benefit of
    investors.

    7. The UFCW Plan invested in securitized mortgages through both indenture trusts and PSA
    trusts. The Plan and other investors are the beneficial or equitable owners of the mortgages held
    in the indenture and PSA trusts. Because the Plan holds an equitable or beneficial ownership
    interest in these underlying assets and because the relevant trusts are pooled investment vehicles
    by which investors indirectly retain management services for the mortgages, the assets of the
    trusts are plan assets under ERISA.

    8. For six of the indenture and PSA trusts in which the Plan invested, Defendant Ocwen
    Financial Corporation (“Ocwen”) was either the manager or “servicer” initially or became
    servicer of all or some of the mortgages held in these trusts. Notwithstanding minor variations in
    Ocwen’s title, Ocwen’s control of the mortgages and Ocwen’s conduct as servicer is the same
    across all indenture and PSA trusts.

    9. Ocwen exercised sweeping, unchecked control of the management and disposition of
    securitized mortgages, and was a fiduciary under ERISA to the benefit plans that invested in
    those mortgages. As a fiduciary to benefit plan investors in securitized mortgages, Ocwen owed
    those benefit plan investors a duty of diligence and undivided loyalty. Instead, Ocwen
    consistently acted to increase its own profits to the detriment of investors.

    10. Ocwen’s self-enrichment was a breach of Ocwen’s fiduciary duty to benefit plan
    investors under ERISA.

    11. Ocwen’s breach of fiduciary duty caused enormous losses on securitized mortgages in
    which the Plan and other benefit plans invested. Millions of American families depend upon
    those benefit plans for health care and retirement income, and millions were harmed by Ocwen’s
    conduct.

    12. Ocwen sabotaged mortgage modifications and otherwise pushed struggling homeowners
    into needless default and foreclosure, which greatly increased the benefit plans’ losses. Ocwen
    did so because Ocwen profited more from mortgages in default or foreclosure than from
    performing mortgages.

    13. Ocwen charged excessive or otherwise illegal fees for late payments, partial payments,
    bounced checks and the like. Ocwen treated a homeowner’s next monthly payment as partial
    payment if the payment did not include those fees, a practice known as fee pyramiding.

    14. Ocwen collected excessive charges for services associated with default and foreclosure,
    such as home inspections, appraisals, and maintenance and marketing of foreclosed homes.
    Ocwen split profits with force-placed insurers, home warranty companies and other vendors, or
    took commissions or other payments from third parties, all prohibited kickbacks under ERISA,
    per se breaches of fiduciary duty.

    15. Defendant Wells Fargo Bank N.A. (“Wells”) is the “master servicer” to Ocwen’s
    servicer in three of the trusts in which the UFCW Plan invested. Under the governing documents
    of these trusts, Wells’ duties as master servicer are to supervise the performance of the servicer
    and to monitor the compliance of servicers with the duties of servicers. Wells has the power as
    master servicer to terminate servicers for breach of servicing duties. Wells serves as master
    servicer and has these same duties and responsibilities for many other trusts for which Ocwen is
    servicer.

    16. Wells’ derelections as master servicer enabled Ocwen to breach Ocwen’s fiduciary
    duties to benefit plan investors. Wells is thus jointly and severally liable for Ocwen’s breach of
    fiduciary duty under ERISA.

    17. Wells has the authority and an express contractual duty under the governing documents
    of the three trusts at issue for which Wells was master servicer, and of a significant number of all
    trusts for which Ocwen is servicer, to prosecute legal claims for servicer misconduct on behalf of
    investors. Those legal claims, or choses in action, on behalf of benefit plan investors are also
    plan assets. Because of Wells’ control of those choses in action, Wells is a fiduciary to those
    benefit plan investors with respect to those legal claims.

    18. Wells has done little or nothing to investigate legal claims against Ocwen on behalf of
    benefit plan investors for servicer misconduct, despite overwhelming evidence of pervasive
    actionable misconduct, and nothing at all to prosecute such claims.

    19. Wells’ conduct as master servicer was not born of inattention or sloth, but was
    intentional and self-interested. Wells was deeply involved in mortgage securitization and remains
    deeply involved in mortgage servicing. The financial institutions involved in mortgage
    securitization and servicing are connected by a complex network of legal and financial
    relationships. Wells, or sibling subsidiaries of the same corporate parent, is sponsor for some
    trusts, securitization trustee for other trusts, and master servicer or servicer for still more. As
    servicer, Wells engaged in much of the same self-dealing and other misconduct in which Ocwen
    engaged. Diligent enforcement of investor rights across all trusts would be in the best interest of
    investors, but would be financially damaging and perhaps ruinous for Wells and many other
    financial institutions. Willful blindness and complicit passivity by master servicers allowed
    financial institutions involved in mortgage securitization to avoid those consequences and shift
    losses to investors, the beneficial owners of the mortgages.

    20. Exculpatory provisions in the governing documents of securitization trusts have stymied
    many legal claims by investors against securitization trustees, master servicers and servicers.
    Those provisions are void as against public policy with respect to claims on behalf of benefit
    plans for breach of fiduciary duty under ERISA.

    21. Plaintiffs bring claims in this action on behalf of two classes, one a subset of the other.
    The first set of claims is on behalf of a class of trustees of benefit plans that invested, directly or
    indirectly, in securitized mortgages that Ocwen serviced. The second set of claims is on behalf of
    a class of trustees of benefit plans that invested, directly or indirectly, in securitized mortgages
    that Ocwen serviced for which Wells was the master servicer. The two sets of claims are closely
    related.

    22. On behalf of the families that depend upon those benefit plans, Plaintiffs seek to recover
    losses from Ocwen’s breach of fiduciary duties, to disgorge Ocwen’s profits from prohibited self-dealing, to hold Wells jointly and severally liable with Ocwen for Ocwen’s misconduct, and
    to enjoin Ocwen from receiving and third parties from paying kickbacks that are prohibited
    transactions under ERISA.

    23. Plaintiffs also seek to recover losses from Wells’ failure to investigate potential legal
    claims against Ocwen and others and to make an informed decision in the best interests of
    participants and beneficiaries in those benefit plans to pursue those claims. An informed decision
    in the best interests of participants and beneficiaries of benefit plan investors would have been to
    prosecute meritorious legal actions against Ocwen and others vigorously.

    II. JURISDICTION AND VENUE

    24. Plaintiffs are benefit plan trustees and, therefore, are fiduciaries of the Plan empowered
    to bring an action to (1) recoup losses and obtain other appropriate relief for breach of fiduciary
    duty under 29 U.S.C § 1132(a)(2) and 29 U.S.C § 1109 and (2) to obtain appropriate equitable
    relief pursuant to 29 U.S.C. § 1132(a)(3).

    25. This Court has federal subject matter jurisdiction over this action pursuant to 28 U.S.C. §
    1331 (federal question) and 29 U.S.C. § 1132(e)(1) (ERISA). The district courts of the United
    States have exclusive jurisdiction over claims for breach of fiduciary duty under ERISA. 29
    U.S.C. § 1132(e)(1).

    26. This Court has personal jurisdiction over each Defendant because each Defendant can be
    found in and transacts business in this District. In addition, many acts prohibited by ERISA
    occurred in this District.

    27. Venue is proper in this District because some of Defendants’ conduct for which
    Plaintiffs seek relief occurred in this district and Defendants may be found in this district. 28
    U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2).

    Document Links 1 (Scribd et. al)

    https://www.scribd.com/document/469673234/Docket-19july20-SDNY-CM-ECF-NextGen-Version-1-2

    Document Link 2

    https://www.scribd.com/document/469673228/Powell-Complaint-2nd-Amended-200%20

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