Bank of America, N.A. v. BDO Seidman, LLP

In a letter to the Court dated December 6, 2007, from Daniel P. Stipano, Deputy Chief Counsel to the Office of the Comptroller of the Currency (the “OCC letter”), sent in apparent response to this Court’s Memorandum and Order of November 26, 2007, this Court was asked to “amend its November 26th Order to allow the OCC until February 4, 2008 to obtain the return of the document or otherwise assure compliance with the OCC’s regulations.”

Letters to Judges about matters in litigation before them are not a preferred method of communication. Indeed, for the Judge a Memorandum such as this is just about the only way to respond. See, e.g., Supreme Judicial Court Rule 3:09 — Code of Judicial Conduct, Canon 3(B)(7) (“Ajudge shall not initiate, permit, or consider any ex parte communication concerning a pending or impending proceeding [except for certain matters not here relevant]”).

Further — while the Court will consider the request for additional time in the OCC letter — it is regretful that the parties are unable to work this matter out short of, quite literally, making a Federal case out of it. After all, this Court’s ruling was not without legal support in the form of citation to a Federal District Court decision2 and a Federal Circuit Court of Appeals decision,3 each having ruled in a manner wholly consistent to that by this Court. In that circumstance can it be that the OCC now must insist on seeking a Federal court order for the return of an over four-year-old, two-page memorandum concerning a single bank loan, which loan has been in default for more than two years, before the OCC can decide whether it will permit the use of that document as possible evidence, under carefully controlled circumstances, before this Court? Can the OCC only make that momentous determination after first bringing a proceeding for the recovery of the OCC Report in some Federal court? Is it really too hard or too complex for the OCC’s legal staff to perform that task by reading its own file copy of the OCC Report in issue? Perhaps Dickens’s Mr. Bumble was right — "If the law supposes that, the law is a ass, a idiot."4

ORDER

The time for the Office of the Comptroller of the Currency to act in response to this Court’s Memorandum and Order On Motions Regarding OCC Report, is extended to February 4, 2008, at 4:00 p.m. to permit the OCC to take whatever action it considers appropriate.