Dr Dr Z
Joseph Zernik, PhD
PO Box 526, La Verne, CA 91750;
Fax: 801 998-0917; Email: jz12345@earthlink.net
Blog: http://inproperinla.blogspot.com/
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10-01-31 (1) Request for clarification of conduct of SEC regarding previous complaint against BAC
(2) Request for clarification conduct of SEC through release of public record in SEC v BAC (1:09-cv-06829)
(3) New complaint against BAC, dated January 31, 2010.
Timely response requested within 10 business days.
Mary Schapiro, Chair
US Securities and Exchange Commission
By email
Dear Ms Schapiro:
Please accept this notice as a request for clarification of conduct of SEC regarding previous complaint by Shareholder Joseph Zernik against Bank of America Corporation (BAC), receipt acknowledged by Ms Mary Schapiro on January 11, 2010, as a request for clarification of enforcement conduct of SEC through release of public record in SEC v BAC (1:09-cv-06829), and as a new complaint against BAC, dated January 31, 2010. Response on these matters is kindly requested within 10 business days, to allow a meaningful shareholders meeting, scheduled for February 23, 2010.
1) Request for clarification of conduct of SEC regarding complaints by Shareholder Joseph Zernik of alleged criminal conduct at BAC, receipt acknowledged by SEC Chair on January 11, 2010.
a) Nature of previous complaints – allegations of fraud and other criminal conduct in at BAC.
Previous complaints alleged that Countrywide Financial Corporation (CFC), and later BAC engaged in various criminalities since 2004 and to this date, including, but not limited to:
i. Conduct that amounted to racketeering by individual affiliated or associated with Countrywide Financial Corporation (CFC), and later with BAC, at the Superior Court of California, County of Los Angeles.
ii. Money laundering transactions between Attorney David Pasternak and Bryan Cave, LLP - acting as purported Outside Counsel of CFC, and later BAC.
iii. Tampering with a witness - Diane Frazier - former senior underwriter at CFC.
iv. Harassment, retaliation, intimidation of a witness, informant and victim - Joseph Zernik.
v. Employment and court appearances by false Outside Counsel - one of the largest law firms in the US - Bryan Cave, LLP.
vi. Conduct amounting to obstruction and perversion of justice by such false Outside Counsel.
vii. Direct involved in alleged criminalities by Sandor Samuels - former Chief Legal Officer of CFC, and today - Associate General Counsel of Bank of America Corporation - past and present holder of direct reporting duties to SEC.
viii. Refusal of the Audit Committee of BAC to address complaints filed pursuant to Sarbanes Oxley Act (2002)
The nature of the allegations in complaints filed by Shareholder Joseph Zernik against BAC was such that would make their investigation by SEC essential for safeguarding the interests of shareholders in general.
b) Nature of previous responses by SEC – refusal to address complaints against BAC as such.
The refusal of SEC to address any complaint against BAC as a complaint, was documented in the most recent exchanges in January 2010:
i. Complaints by BAC shareholder, Joseph Zernik, against Bank of America Corporation were forwarded to Mary Shapiro, SEC Chair’s personal attention, and explicitly identified as “Complaint” of alleged violations of the law pursuant to Sarbanes Oxley Act (2002), and of conduct amounting to racketeering pursuant to RICO – Racketeering Influenced and Corrupt Organization Act 18 USC §1961-1968.
ii. January 11, 2010 Email Notice, by Mary Schapiro, SEC Chair, acknowledged receipt of such complaints, albeit, referred to them only as “message”. SEC Chair’s response stated:
“I have received your message and provided it to the appropriate staff. Thank you for contacting me.”
iii. January 22, 2010 Letter by Michele Wein Layne, SEC Associate Regional Director, was received by Complainant and BAC shareholder, Joseph Zernik, which had no plausible explanation, unless as a response to the complaints filed with Mary Schapiro, SEC Chair, receipt of which was acknowledged on January 11, 2010. However, the January 22, 2010 Letter’s subject line read:
Securities and Exchange Commission v. Allgelo Mozilo, David Sambol, and Eric Sieracki, (C.D. Cal.), Civil Action No. CV 09-03994 (JFW)
Otherwise stated - in response to complaints against BAC which alleged violations of the US Penal Code, complainant received a response from SEC, which informed him of a civil litigation, where Defendants were individuals, none of whom was affiliated with Bank of America Corporation. Such response by SEC was irrelevant to the complaints.
Mary Schapiro, SEC Chair, is therefore requested to provide Shareholder Joseph Zernik, response regarding the disposition of his complaints against BAC, receipt acknowledged by Ms Schapiro on January 11, 2010.
2) Request for clarification by Mary Schapiro, SEC Chair, of the nature of SEC conduct in SEC v BAC (1:09-cv-06829), through release of public records.
Shareholder Joseph Zernik further brought to the attention of SEC Chair, Mary Schapiro, the questionable nature of enforcement under SEC v BAC (1-09-cv-06829), and the denial of access to public records:
a) Both the US Court and counsel for SEC and BAC refused to provide access to public records, which were the summons, as issued by the Clerk of the US Court, and the NEFs (Notices of Electronic Filings) of the US Court orders under such caption.
b) Request for copies of such public records was therefore directly addressed to Mr Brian Moynihan, President of Bank of America Corporation and former General Counsel. However, Mr Moynihan failed to respond on such request.
c) Therefore, Shareholder Joseph Zernik, filed Freedom of Information Act (FOIA) request with SEC – for copies of such public records, which were the summons, as issued by the clerk, and the NEFs of court orders under the caption of SEC v BAC (1:09-cv-06829). However, it was unlikely that response to FOIA request would be obtained prior to the February 23, 2010 shareholders meeting.
Such papers are essential for shareholders to assess the integrity of operations of BAC. Specifically, since such papers pertained to court action, and since Mr Brian Moynihan previously served as a General Counsel, such papers are essential for assessing the integrity of operations of Bank of America Corporation and its highest level management.
Mary Schapiro, SEC Chair, is therefore requested to provide Shareholder Joseph Zernik copies of such public records in a timely fashion.
3) New complaint against Bank of America Corporation, filed herein with Mary Schapiro, Chair, SEC alleges:
3) New complaint against Bank of America Corporation, filed herein with Mary Schapiro, Chair, SEC alleges:
a) Bank of America Corporation periodic reports in the past year and a half included false statements, under certifications pursuant to Sarbanes Oxley Act (2002): Upon investigation it would be confirmed that complaints of fraud involving management or other employees who have a significant role in the registrant’s internal control over financial reporting, were NOT disclosed to the Audit Committee, as required by law. Furthermore, material deficiencies in operation of the Audit Committee are alleged, based on correspondence with General Tommy Franks, former member of the BAC Audit Committee.
Periodic reports by Bank of America Corporation in the past year and a half routinely included false and deliberately misleading certifications pursuant to Sarbanes Oxley Act (2002). The language of such certifications stated:
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
…
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
However, correspondence of Shareholder Joseph Zernik with General Tommy Franks, former Member, Bank of America Audit Committee, would lead a reasonable person to conclude that complaints by Shareholder Joseph Zernik of fraud involving management and other employees who have significant role in internal control over financial reporting, which were addressed to the Audit Committee, and filed pursuant to the Sarbanes Oxley Act (2002), were never disclosed to the Audit Committee.
Furthermore, in such correspondence, General Tommy Franks wrote that he refused in general to make any statement on the record regarding integrity of operations of BAC during his tenure as Member of the Audit Committee. Such statement by a former Member of the Audit Committee, in and of itself raised concerns regarding the nature of internal controls at BAC, and the conduct of the Audit Committee, and requires investigation by SEC, in order to protect the interests of Shareholders.
b) On December 10, 2008, Brian Moynihan, was promoted to General Counsel, and former General Counsel Timothy Mayopoulos, was ousted. Such changes took place in close correlation with resumption of conduct in violation of the penal code by BAC, which were opposed by the office of General Counsel under Mr Mayopoulos.
Both Bank of America shareholders and the United States Congress were left in the dark regarding the true nature of events related to replacement of the Bank of America General Counsel on December 10, 2009. Following is description of events from Law.com:
…general counsel Tim Mayopoulos was called out of a meeting with a Merrill executive and
into the office of then-chief risk officer Amy Brinkley on Dec. 10. At the time Mayopoulos had been the bank's general counsel for five years and reported to Brinkley, who retired in June.
Brinkley fired Mayopoulos on the spot and had him escorted from the building, according to sources, without giving a reason. Mayopoulos, who became general counsel at Fannie Mae in Washington D.C. in April, didn't return phone calls for comment. Edward Hinson of Charlotte, N.C.-based James McElroy & Diehl, says he can't comment because Mayopoulos signed a severance agreement that
pledged confidentiality.
…
In a terse press release on Dec. 10, bank chief executive Ken Lewis announced that another bank executive, Brian Moynihan, had been named general counsel. While a lawyer, most of Moynihan's experience was on the bank's business side as head of the global wealth management unit. "In these tumultuous times, the role of general counsel requires broad business and legal expertise," Lewis said in the press release.
Shareholder Joseph Zernik alleges that evidence in his possession documented the following facts, which were closely correlated with the change of the General Counsel at Bank of America Corporation:
i) Under General Counsel Timothy Mayopoulos, attempts were at least made by the General Counsel office to stop fraudulent conduct by the former Countrywide Financial Corporation Legal Department, headed by Sandor Samuels.
ii) Within days after appointment of Brian Moynihan as General Counsel of BAC, the former Countrywide Financial Corporation Legal Department, headed by Sandor Samuels, proceeded with its fraudulent conduct with full force and with full cooperation by the office of BAC.
Such allegations pertain directly to the person who is today the President of Bank of America Corporation, and to integrity of operations under his leadership. BAC is also the recipient of some $200 billions in bailout funds. Therefore, it is unreasonable for SEC to continue its refusal to acknowledge any complaint of alleged criminality at BAC and it top management.
Mary Schapiro, SEC Chair, is therefore requested to acknowledge receipt of Complaint dated January 31, 2010 by Shareholder Joseph Zernik.
In sum: Conditions were created whereby shareholders of BAC, and likewise, the international financial community are denied the ability to make any informed decisions regarding the integrity of operations at BAC, and also regarding allegations of criminality by senior management at BAC. SEC is therefore kindly requested to perform its duties, in a manner that would allow valid risk assessment and/or risk reduction, and likewise, would allow the conduct of a meaningful shareholders meeting on February 23, 2010.
Timely response requested within 10 business days.
Respectfully,
Dated: January 31, 2010
La Verne, County of Los Angeles, California Joseph H Zernik
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By: ______________
JOSEPH H ZERNIK
Dated: January 31, 2010
La Verne, County of Los Angeles, California Joseph H Zernik
By: ______________
JOSEPH H ZERNIK
PO Box 526, La Verne, CA 91750
Fax: 801.998.0917
Email
Scribd: http://www.scribd.com/Free_the_Rampart_FIPs
Fax: 801.998.0917
Scribd: http://www.scribd.com/Free_the_Rampart_FIPs
CC:
1) Basel Accords Committee
2) International Central Banks, analysis departments
3) US Congress, NGOs
4) David Kotz, SEC Office of SEC Inspector General
5) Office of Comptroller of the Currency
6) Analysts
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