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Fred W. Schwinn (SBN 225575)
Raeon R. Roulston (SBN 255622)
Matthew C. Salmonsen (SBN 302854)
CONSUMER LAW CENTER, INC.
38 West Santa Clara Street
San Jose, California 95113-1806
Telephone Number: (408) 294-6100
Facsimile Number: (408) 294-6190
Email Address: fred.schwinn@sjconsumerlaw.com
Attorneys for Defendant/Cross-Complainant
MARIA ANTONIA CANUL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
VELOCITY INVESTMENTS, LLC Case No. 16CV300096
(Unlimited Civil Case)
Plaintiff,
Assigned for All Purposes to the
Honorable Theodore C. Zayner (Dept. 19)
MARIA CANUL
Defendant. DECLARATION OF FRED W. SCHWINN IN
SUPPORT OFCROSS-COMPLAINANT ’S
MOTION FOR SUMMARY JUDGMENT, OR
IN THE ALTERNATIVE, MOTION FOR
SUMMARY ADJUDICATION
[C.C.P § 437c and Cal. Rules of Court 3.1350]
MARIA ANTONIA CANULon behalf of
herself and all others similarly situated Hearing Date: October 25, 2023
Hearing Time: 1:30 p.m.
Cross-Complainant, Hearing Dept.:
Hearing Judge: Theodore C. Zayner
Hearing Location: 161 North First Street
VELOCITY INVESTMENTS, LLC, a New San Jose, California
Jersey limited liability company;
VELOCITY PORTFOLIO GROUP, INC.,
a Delaware corporation; and ROES 2
through 10, inclusive, Complaint Filed: September 20, 2016
Cross-Complaint Filed: February 19, 2019
Cross-Defendants. Trial Date: Not Set
I, Fred W. Schwinn, declare as follows:
I am an attorney at law duly licensed to practice before all the courts of the State of
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
California and am a shareholder in the law firm Consumer Law Center, Inc., attorneys of record for
Defendant/Cross-Complainant and Class Representative, MARIA ANTONIA CANUL (“CANUL”)
I have personal knowledge of the following facts, and if called as a witness, I could
and would competently testify thereto.
On May 15, 2021, I served a Deposition Subpoena for Production of Business
Records on LendingClub Corporation A true and correct copy of the deposition subpoena is filed
herewith and marked as Exhibit “H.”
Thereafter, LendingClub Corporation served its response to the Deposition
Subpoena for Production of Business Records (Exhibit “H”) that included a 799-page document
production and an Affidavit of Custodian of Records dated February 23, 2023. A true and correct copy
of the Affidavit of Custodian of Records is filed herewith and marked as Exhibit “I.” The following
documents were included in LendingClub Corporation’s 799-page document production:
a. A 7-page document entitled Loan Agreement, Bates Stamped as
“LendingClub 0000019-0000025.” A true and correct copy of that 7-page Loan Agreement is
filed herewith and marked as Exhibit “J.”
A 5-page document entitled Loan Search, Bates Stamped as “LendingClub
0000026-0000030.” This Loan Search document provides information about CANUL’s loan,
including the note holders of the 144 promissory notes issued. A true and correct copy of that 5-
page Loan Search document is filed herewith and marked as Exhibit “K.”
c. A 3-page document entitled Promissory Note for $25 dated June 6, 2012,
Bates Stamped as “LendingClub 0000111-0000113.” This Promissory Note for $25 document is
the first in the series of 144 promissory notes produced by LendingClub Corporation in response
to CANUL’s Deposition Subpoena for Production of Business Records. A true and correct copy
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
of this first Promissory Note for $25 document is filed herewith and marked as Exhibit “L.”
A 3-page document entitled Promissory Note for $25 dated June 6, 2012,
Bates Stamped as “LendingClub 0000540-0000542.” This Promissory Note for $25 document is
the last in the series of 144 promissory notes produced by LendingClub Corporation in response
to CANUL’s Deposition Subpoena for Production of Business Records. A true and correct copy
of the second Promissory Note for $25 document is filed herewith and marked as Exhibit “M.”
e. A 2-page document entitled Truth in Lending Disclosure Statement, Bates
Stamped as “LendingClub 0000049-0000050.” A true and correct copy of the Truth in Lending
Disclosure Statement document is filed herewith and marked as Exhibit “N.”
As stated above, the document Bates Stamped “LendingClub 0000111-0000113”
(Exhibit “L”) is the first in the series of 144 Promissory Notes that LendingClub Corporation produced
in response to CANUL’s Deposition Subpoena for Production of Business Records. The document
Bates Stamped as “LendingClub 0000540-0000542” (Exhibit “M”) is the last of series of the 144
Promissory Notes LendingClub produced. The documents LendingClub Corporation produced that are
Bates Stamped “LendingClub 0000114-0000539” consist of the other 142 Promissory Notes that,
together, comprise CANUL’s alleged loan. I retain the entire 799-page production which will be made
available to the Court upon request.
On February 19, 2019, I served Requests for Admission (Set One) by first-class
mail on Cross-Defendant VELOCITY INVESTMENTS, LLC (“VELOCITY”). VELOCITY did not
timely respond to the Requests for Admission (Set One), nor did counsel respond to meet and confer
efforts. Because VELOCITY failed to respond, object, and meet and confer to the Requests for
Admission (Set One), on May 7, 2019, I filed a Motion for Order Deeming Unanswered Requests for
Admission as Admitted and for Monetary Sanctions Against Velocity Investments, LLC. A true and
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
correct copy of Declaration of Fred W. Schwinn in Support of Motion for Order Deeming Unanswered
Requests for Admission as Admitted and for Monetary Sanctions Against Velocity Investments, LLC is
filed herewith and marked as Exhibit “O.” Attached Exhibit “O” contains the Requests for Admission
(Set One), including 28 requests served on VELOCITY by CANUL at pages 5 through 7.
On July 11, 2019, the Court heard CANUL’s unopposed Motion for Order
Deeming Unanswered Request for Admissions as Admitted and for Monetary Sanctions Against
Velocity Investments, LLC. The Court granted the motion and request for sanctions, ordering all 28
Requests for Admission (Set One) deemed admitted. The signed Order was filed on July 23, 2019. A
true and correct copy of Order Deeming Unanswered Requests for Admission as Admitted and for
Monetary Sanctions Against Velocity Investments, LLC is filed herewith and marked as Exhibit “P.”
On February 17, 2021, the Court denied VELOCITY’s Motion to Set-Aside
Deemed Admissions, stating “the Court cannot determine that the deemed admissions were actually
caused by the neglect and mistake on the part of [VELOCITY’s] former or current counsel. Nor can the
Court consider excusing neglect and mistake that is not adequately described in any of [VELOCITY’s]
submissions in support of its motion.” A true and correct copy of Orders on Motion of Cross-Defendant
Velocity Investments, LLC to Set Aside Deemed Admissions, filed on February 17, 2021, is filed
herewith and marked as Exhibit “Q.”
On February 19, 2019, I served Special Interrogatories (Set One) VELOCITY. A
true and correct copy of Special Interrogatories (Set One) is filed herewith and marked as Exhibit “R.”
On March 19, 2021, VELOCITY served Velocity Investments, LLC’s Further
Responses to Special Interrogatories, Set One on CANUL. A true and correct copy of the relevant
pages of Velocity Investments, LLC’s Further Responses to Special Interrogatories, Set One is filed
herewith and marked as Exhibit “S.”
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
On February 19, 2019, I served Request for Production of Documents and
Electronically Stored Information (Set One) on VELOCITY. A true and correct copy of Request for
Production of Documents and Electronically Stored Information (Set One) is filed herewith and marked
as Exhibit “T.”
On March 19, 2021, VELOCITY served Velocity Investments, LLC’s
Supplemental Responses to Requests for Production of Documents, Set One on CANUL. A true and
correct copy of the relevant pages of Velocity Investments, LLC’s Supplemental Responses to Requests
for Production of Documents, Set One is filed herewith and marked as Exhibit “U.”
As part of VELOCITY’s further production of documents in response to
CANUL’s Request for Production of Documents and Electronically Stored Information (Set One)
VELOCITY produced a 36-page document entitled File Opening, Pre-Suit Review & Initial Demands
Bates Stamped as “VELOCITY-CANUL000072–VELOCITY-CANUL000107.” A true and correct
copy of File Opening, Pre-Suit Review & Initial Demands served by VELOCITY is filed herewith and
marked as Exhibit “V.”
As part of VELOCITY’s further production of documents in response to
CANUL’s Request for Production of Documents and Electronically Stored Information (Set One)
VELOCITY produced a 34-page cluster of documents Bates Stamped as “CONFIDENTIAL
VELOCITY-CANUL000388 – CONFIDENTIAL VELOCITY-CANUL000421.” A true and correct
copy of the documents served by VELOCITY and Bates Stamped CONFIDENTIAL VELOCITY-
CANUL000388 – CONFIDENTIAL VELOCITY-CANUL000421 is filed herewith and marked as
Exhibit “W.”
As part of VELOCITY’s further production of documents in response to
CANUL’s Request for Production of Documents and Electronically Stored Information (Set One)
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
VELOCITY produced a significantly redacted 40-page document cluster Bates Stamped
“CONFIDENTIAL-VELOCITY-CANUL000423–CONFIDENTIAL-VELOCITY-CANUL000462.”
true and correct copy of Bates Stamped “CONFIDENTIAL-VELOCITY-CANUL000423–
CONFIDENTIAL-VELOCITY-CANUL000462” served by VELOCITY is filed herewith and marked
as Exhibit “X.”
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed this 21st day of July, 2023 at San Jose, California.
Fred W. Schwinn
DECLARATION OF FRED W. SCHWINN Case No. 16CV300096
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Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 38 West Santa Clara Street San Jose, California 95113-1806 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Defendant/Cross-Complainant MARIA ANTONIA CANUL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VELOCITY INVESTMENTS, LLC Case No. 16CV300096 (Unlimited Civil Case) Plaintiff, Assigned for All Purposes to the Honorable Theodore C. Zayner (Dept. 19) MARIA CANUL Defendant. DECLARATION OF FRED W. SCHWINN IN SUPPORT OFCROSS-COMPLAINANT ’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION [C.C.P § 437c and Cal. Rules of Court 3.1350] MARIA ANTONIA CANULon behalf of herself and all others similarly situated Hearing Date: October 25, 2023 Hearing Time: 1:30 p.m. Cross-Complainant, Hearing Dept.: Hearing Judge: Theodore C. Zayner Hearing Location: 161 North First Street VELOCITY INVESTMENTS, LLC, a New San Jose, California Jersey limited liability company; VELOCITY PORTFOLIO GROUP, INC., a Delaware corporation; and ROES 2 through 10, inclusive, Complaint Filed: September 20, 2016 Cross-Complaint Filed: February 19, 2019 Cross-Defendants. Trial Date: Not Set I, Fred W. Schwinn, declare as follows: I am an attorney at law duly licensed to practice before all the courts of the State of DECLARATION OF FRED W. SCHWINN Case No. 16CV300096 California and am a shareholder in the law firm Consumer Law Center, Inc., attorneys of record for Defendant/Cross-Complainant and Class Representative, MARIA ANTONIA CANUL (“CANUL”) I have personal knowledge of the following facts, and if called as a witness, I could and would competently testify thereto. On May 15, 2021, I served a Deposition Subpoena for Production of Business Records on LendingClub Corporation A true and correct copy of the deposition subpoena is filed herewith and marked as Exhibit “H.” Thereafter, LendingClub Corporation served its response to the Deposition Subpoena for Production of Business Records (Exhibit “H”) that included a 799-page document production and an Affidavit of Custodian of Records dated February 23, 2023. A true and correct copy of the Affidavit of Custodian of Records is filed herewith and marked as Exhibit “I.” The following documents were included in LendingClub Corporation’s 799-page document production: a. A 7-page document entitled Loan Agreement, Bates Stamped as “LendingClub 0000019-0000025.” A true and correct copy of that 7-page Loan Agreement is filed herewith and marked as Exhibit “J.” A 5-page document entitled Loan Search, Bates Stamped as “LendingClub 0000026-0000030.” This Loan Search document provides information about CANUL’s loan, including the note holders of the 144 promissory notes issued. A true and correct copy of that 5- page Loan Search document is filed herewith and marked as Exhibit “K.” c. A 3-page document entitled Promissory Note for $25 dated June 6, 2012, Bates Stamped as “LendingClub 0000111-0000113.” This Promissory Note for $25 document is the first in the series of 144 promissory notes produced by LendingClub Corporation in response to CANUL’s Deposition Subpoena for Production of Business Records. A true and correct copy DECLARATION OF FRED W. SCHWINN Case No. 16CV300096 of this first Promissory Note for $25 document is filed herewith and marked as Exhibit “L.” A 3-page document entitled Promissory Note for $25 dated June 6, 2012, Bates Stamped as “LendingClub 0000540-0000542.” This Promissory Note for $25 document is the last in the series of 144 promissory notes produced by LendingClub Corporation in response to CANUL’s Deposition Subpoena for Production of Business Records. A true and correct copy of the second Promissory Note for $25 document is filed herewith and marked as Exhibit “M.” e. A 2-page document entitled Truth in Lending Disclosure Statement, Bates Stamped as “LendingClub 0000049-0000050.” A true and correct copy of the Truth in Lending Disclosure Statement document is filed herewith and marked as Exhibit “N.” As stated above, the document Bates Stamped “LendingClub 0000111-0000113” (Exhibit “L”) is the first in the series of 144 Promissory Notes that LendingClub Corporation produced in response to CANUL’s Deposition Subpoena for Production of Business Records. The document Bates Stamped as “LendingClub 0000540-0000542” (Exhibit “M”) is the last of series of the 144 Promissory Notes LendingClub produced. The documents LendingClub Corporation produced that are Bates Stamped “LendingClub 0000114-0000539” consist of the other 142 Promissory Notes that, together, comprise CANUL’s alleged loan. I retain the entire 799-page production which will be made available to the Court upon request. On February 19, 2019, I served Requests for Admission (Set One) by first-class mail on Cross-Defendant VELOCITY INVESTMENTS, LLC (“VELOCITY”). VELOCITY did not timely respond to the Requests for Admission (Set One), nor did counsel respond to meet and confer efforts. Because VELOCITY failed to respond, object, and meet and confer to the Requests for Admission (Set One), on May 7, 2019, I filed a Motion for Order Deeming Unanswered Requests for Admission as Admitted and for Monetary Sanctions Against Velocity Investments, LLC. A true and DECLARATION OF FRED W. SCHWINN Case No. 16CV300096 correct copy of Declaration of Fred W. Schwinn in Support of Motion for Order Deeming Unanswered Requests for Admission as Admitted and for Monetary Sanctions Against Velocity Investments, LLC is filed herewith and marked as Exhibit “O.” Attached Exhibit “O” contains the Requests for Admission (Set One), including 28 requests served on VELOCITY by CANUL at pages 5 through 7. On July 11, 2019, the Court heard CANUL’s unopposed Motion for Order Deeming Unanswered Request for Admissions as Admitted and for Monetary Sanctions Against Velocity Investments, LLC. The Court granted the motion and request for sanctions, ordering all 28 Requests for Admission (Set One) deemed admitted. The signed Order was filed on July 23, 2019. A true and correct copy of Order Deeming Unanswered Requests for Admission as Admitted and for Monetary Sanctions Against Velocity Investments, LLC is filed herewith and marked as Exhibit “P.” On February 17, 2021, the Court denied VELOCITY’s Motion to Set-Aside Deemed Admissions, stating “the Court cannot determine that the deemed admissions were actually caused by the neglect and mistake on the part of [VELOCITY’s] former or current counsel. Nor can the Court consider excusing neglect and mistake that is not adequately described in any of [VELOCITY’s] submissions in support of its motion.” A true and correct copy of Orders on Motion of Cross-Defendant Velocity Investments, LLC to Set Aside Deemed Admissions, filed on February 17, 2021, is filed herewith and marked as Exhibit “Q.” On February 19, 2019, I served Special Interrogatories (Set One) VELOCITY. A true and correct copy of Special Interrogatories (Set One) is filed herewith and marked as Exhibit “R.” On March 19, 2021, VELOCITY served Velocity Investments, LLC’s Further Responses to Special Interrogatories, Set One on CANUL. A true and correct copy of the relevant pages of Velocity Investments, LLC’s Further Responses to Special Interrogatories, Set One is filed herewith and marked as Exhibit “S.” DECLARATION OF FRED W. SCHWINN Case No. 16CV300096 On February 19, 2019, I served Request for Production of Documents and Electronically Stored Information (Set One) on VELOCITY. A true and correct copy of Request for Production of Documents and Electronically Stored Information (Set One) is filed herewith and marked as Exhibit “T.” On March 19, 2021, VELOCITY served Velocity Investments, LLC’s Supplemental Responses to Requests for Production of Documents, Set One on CANUL. A true and correct copy of the relevant pages of Velocity Investments, LLC’s Supplemental Responses to Requests for Production of Documents, Set One is filed herewith and marked as Exhibit “U.” As part of VELOCITY’s further production of documents in response to CANUL’s Request for Production of Documents and Electronically Stored Information (Set One) VELOCITY produced a 36-page document entitled File Opening, Pre-Suit Review & Initial Demands Bates Stamped as “VELOCITY-CANUL000072–VELOCITY-CANUL000107.” A true and correct copy of File Opening, Pre-Suit Review & Initial Demands served by VELOCITY is filed herewith and marked as Exhibit “V.” As part of VELOCITY’s further production of documents in response to CANUL’s Request for Production of Documents and Electronically Stored Information (Set One) VELOCITY produced a 34-page cluster of documents Bates Stamped as “CONFIDENTIAL VELOCITY-CANUL000388 – CONFIDENTIAL VELOCITY-CANUL000421.” A true and correct copy of the documents served by VELOCITY and Bates Stamped CONFIDENTIAL VELOCITY- CANUL000388 – CONFIDENTIAL VELOCITY-CANUL000421 is filed herewith and marked as Exhibit “W.” As part of VELOCITY’s further production of documents in response to CANUL’s Request for Production of Documents and Electronically Stored Information (Set One) DECLARATION OF FRED W. SCHWINN Case No. 16CV300096 VELOCITY produced a significantly redacted 40-page document cluster Bates Stamped “CONFIDENTIAL-VELOCITY-CANUL000423–CONFIDENTIAL-VELOCITY-CANUL000462.” true and correct copy of Bates Stamped “CONFIDENTIAL-VELOCITY-CANUL000423– CONFIDENTIAL-VELOCITY-CANUL000462” served by VELOCITY is filed herewith and marked as Exhibit “X.” I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 21st day of July, 2023 at San Jose, California. Fred W. Schwinn DECLARATION OF FRED W. SCHWINN Case No. 16CV300096