GRANTED IN PART: March 19, 2009 
CBCA 1073 
OCWEN LOAN SERVICING, LLC, 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Gregory S. Jacobs, James P. Gallatin, Jr., and Lawrence S. Sher of Reed Smith LLP, 
Washington, DC, counsel for Appellant. 
Dennis Foley, William Korth, Phil Kauffman, and Phillipa L. Anderson, Office of 
General Counsel, Department of Veterans Affairs, Washington, DC, counsel for 
Respondent. 
Before Board Judges DANIELS (Chairman), HYATT, and DRUMMOND . 
DANIELS , Board Judge. 
The Board grants this appeal in part due to the failure of the respondent, the 
Department of Veterans Affairs (VA), to produce evidence critical to its ability to prove that 
most of its claim is reasonably premised. 

  
    
 
 
 
      
      
 
  
 
 
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Background 
On August 27, 2003, VA awarded to Ocwen Loan Servicing, LLC 1  (Ocwen) a 
contract to perform real estate owned services for the agency.  Appeal File, Exhibit 1; 
Complaint ¶ 4, Answer ¶ 4.  When a VA-guaranteed loan proceeds to foreclosure, and the 
property is conveyed to the VA, Ocwen assumes duties under the contract.  Ocwen takes 
possession of the property, makes improvements and/or repairs to it, prepares it for listing 
to be sold to the public, coordinates the sale of the property and closing, and provides the sale 
proceeds to VA.  Appeal File, Exhibit 1 at ¶ 2.1.2; Complaint ¶ 5, Answer ¶ 5. 
Ocwen is paid for its services a percentage of the total sales price for each property 
sold.  Appeal File, Exhibit 1 at ¶ 2.6.1.1; Complaint ¶ 6, Answer ¶ 6.  The payment 
provisions of the contract also include the following paragraph: 
Quarterly Performance Incentive Fee/Penalty.  The Service Provider shall 
earn or be penalized a fee (calculated and paid/charged on a quarterly basis) 
based on its performance in obtaining the highest possible ROS. . . .  If the 
return for a given quarter is higher than 100% [of the ROS], the Service 
Provider shall be entitled to be paid 20 percent of the difference.  If the return 
for a given quarter is lower than 97%, VA shall deduct 20 percent of the 
difference between the 100% and the actual return from the Service Provider’s 
invoice.  The Service Provider may petition the Contracting Officer to 
temporarily adjust the Quarterly Performance Incentive Fee/Penalty if there 
is adequate evidence that the 97% penalty threshold cannot be met due to 
circumstances beyond the Service Provider’s control . . . . 
Appeal File, Exhibit 1 at ¶ 2.6.1.3; see also id.  at ¶ J-8.4. 
The term “ROS,” as used in the preceding paragraph, is an acronym for Return on 
Sale.  Appeal File, Exhibit 1 at J-1-5.  The contract defines this term as follows: 
A key performance measure of VA’s success in recovering its costs for 
disposing of VA-acquired properties.  ROS is based on all the properties that 
were sold, and for which final closings and invoices were submitted and 
1 The contract was actually awarded to Ocwen Federal Bank FSB.  Appeal File, 
Exhibit 1 at 1.  The appeal was filed by Ocwen Loan Servicing, LLC, however, and the VA 
does not deny that Ocwen Loan Servicing, LLC is the contractor under this contract.  See 
Complaint ¶ 3; Answer ¶ 3. 

    
 
 
  
 
    
          
    
 
3 CBCA 1073 
processed, during the specified time period.  ROS is calculated as VA’s total 
income received from the properties that sold during a particular period of time 
divided by the sum of VA’s total initial capital value (ICV) and VA’s total 
expenses for the same set of properties. 
Id.  “Initial Capital Value/ICV,” in turn, is defined as: 
The foreclosure appraisal value of the property discounted by (minus) VA’s 
average historical cost of acquiring and disposing of the property. 
Id. at J-1-3.  “Foreclosure Appraisal” is: 
The assessment of value conducted in connection with the foreclosure used by 
VA to establish the initial Capital Value of a property. 
Id. at J-1-2. 
By decision dated December 6, 2007, a VA contracting officer claimed for the agency 
a penalty of $567,995 for the period ending June 30, 2005, and $427,511.47 for the period 
ending September 30, 2005.  Appeal File, Exhibit 32.  The total amount of this claim is 
$995,506.47 . 
Ocwen appealed the contracting officer’s decision to the Board on February 11, 2008. 
In pursuing this appeal, Ocwen has contended that VA has made “arbitrary and unreasonable 
distinctions in calculating the penalties it has claimed under the Contract” and has 
“unreasonably refus[ed] to provide Ocwen with pre-foreclosure appraisal documents.” 
Complaint ¶ 8.  Ocwen has also maintained that pre-foreclosure appraisals value property in 
excess of post-foreclosure values and that the contractor requires pre-foreclosure appraisals 
to ascertain the condition of the properties prior to foreclosure, so that an assessment of the 
usefulness of those appraisals may be made.  Id.  ¶¶ 27, 32.  In particular, Ocwen has asserted 
that without access to the pre-foreclosure appraisals, it cannot “provide adequate evidence, 
in accordance with Contract Section C, 2.6.1.3, to demonstrate that the Contract’s ROS 
threshold could not be met because of circumstances beyond its control.”  Id. ¶ 32; see also 
id. ¶ 69. 
As the contract makes clear, a critical factor in establishing the base from which 
penalties are calculated -- the ROS -- is the foreclosure appraisal values of the properties 
assigned to the “service provider,” Ocwen.  Despite numerous entreaties, however, VA has 
not provided to the Board or Ocwen copies of the appraisals which establish those values. 

   
     
  
 
         
 
  
   
 
   
 
 
      
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In accordance with a discovery plan proposed jointly by the parties and adopted by the 
Board, written discovery requests could be made after July 7, 2008, and responses were due 
within forty-five days following service.  On July 15, 2008, Ocwen sent to VA requests for 
the production of documents, seeking, among other items, “All pre-foreclosure appraisals 
commissioned by the VA for properties listed for sale by Ocwen under the Contract during 
2005.”  Under Board Rule 13(f)(2) (to be codified at 48 CFR 6101.13(f)(2) (2008)), 
objections to the requests for production were due within fifteen days after receipt of the 
requests (by July 30, 2008), and under the terms of the Board’s discovery order, the 
documents should have been produced within forty-five days after receipt (by August 29, 
2008).  VA did not file an objection to this request (or to any of Ocwen’s other written 
discovery requests) by July 30 and did not produce these documents (or respond to any of 
Ocwen’s other written discovery requests) by August 29. VA later asked that the deadline 
for responses to the requests be extended to September 19.  Ocwen agreed to extend the 
deadline, but nothing was forthcoming by September 19, either. 
On October 16, 2008, Ocwen filed a motion to compel discovery, addressing both the 
pre-foreclosure appraisals and all other outstanding matters.  The Board afforded VA an 
opportunity to respond to the motion.  After reviewing the agency’s excuses for its inaction 
and Ocwen’s reply to that response, the presiding judge convened the attorneys for both 
parties for an in-person conference -- an extraordinary measure at this Board.  At this 
conference, he counseled VA’s attorneys regarding the importance of complying fully, and 
in a timely way, with discovery requests and orders.  The Board also issued an order on 
November 12 which provided, in part: 
Respondent shall, no later than Friday, November 21, 2008, produce all 
documents responsive to appellant’s requests for the production of documents. 
Respondent is cautioned that if it does not comply with this order, it may 
present no documentary evidence other than the exhibits contained in the 
appeal file. 
On December 9, 2008, Ocwen filed a supplemental motion to compel discovery and 
for sanctions.  The contractor asserted that the agency had complied with only nineteen of 
its sixty-two requests for document production.  Ocwen specifically pointed to VA’s 
continued failure to produce any pre-foreclosure appraisals.  In response, VA asserted that 
it had fully complied with the Board’s order.  The agency noted that the production request 
for pre-foreclosure appraisals asked for “[a]ll pre-foreclosure appraisals commissioned by 
the VA for properties listed for sale by Ocwen under the Contract during 2005,” and said that 
the agency does not commission appraisals and that “[t]here are no such documents in the 
possession of VA.”  The agency maintained that a request for “all pre-foreclosure documents 
in the possession of VA for properties listed for sale in 2005” would be “unreasonable, 

 
    
 
  
 
  
 
  
  
  
   
 
 
        
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unduly burdensome, and unduly expensive for VA.”  The agency asserted that many of the 
properties “listed for sale in 2005” were not included in the ROS penalty calculations that 
are the subject of this appeal. 
Ocwen replied that VA had known “since at least June 2006” which pre-foreclosure 
appraisals the contractor was seeking and that if the agency had communicated any 
uncertainty about the request, the contractor “would have certainly agreed to narrow the 
scope of its request to only those properties included in the ROS calculation.”  
Taking the parties’ positions into consideration, the Board issued an order on 
December 18, 2008, which contains this paragraph: 
Respondent shall produce to appellant, on or before Wednesday, December 31, 
2008, all pre-foreclosure appraisals in its possession which pertain to 
properties sold by appellant and for which penalties which are the subject of 
this appeal were imposed.  If respondent does not possess a pre-foreclosure 
appraisal for any of these properties but knows of an entity which does possess 
such an appraisal, it shall inform appellant on or before Wednesday, 
December 31, 2008, of the name, address, and telephone number of such 
entity. This information shall include, for each entity, a list of all such 
appraisals which respondent believes to be in the possession of the entity. 
VA then filed a motion for a protective order.  In the motion, VA asserted that it 
“would require several months to respond to Appellant’s request for pre-foreclosure 
appraisals” and requested “a sufficient amount of time to produce the requested appraisals.” 
Appended to the motion was a declaration from Lance P. Kornicker, a VA realty specialist 
who was the contracting officer’s technical representative for the Ocwen contract.  Mr. 
Kornicker stated in his declaration that “VA is aware of 4,363 acquired properties at issue 
for the disputed period of the last two quarters of FY [fiscal year] 2005.”  He said that the 
agency’s Austin, Texas data center could “run a computer script to retrieve and to produce 
the records for the aforesaid properties” which were in the center’s computer system, and that 
“[t]his radically simplifies and summarizes the process.” Records for appraisals which were 
performed before that system came on line, however, would have to be obtained from the 
agency’s nine regional loan centers, where they were stored. According to Mr. Kornicker, 
collection of the records from the regional centers, and creation of paper records from 
computer-readable records, would be very time-consuming.  Ocwen opposed the motion, 
urging the Board not to afford VA more time to produce documents which it had previously 
said did not exist. 

    
  
   
      
        
  
  
 
      
   
  
  
  
           
 
 
6 CBCA 1073 
On December 23, 2008, the Board granted the motion in part, directing: 
Respondent shall produce to appellant, on or before Wednesday, December 31, 
2008, all pre-foreclosure appraisals in its possession which (a) pertain to 
properties sold by appellant and for which penalties which are the subject of 
this appeal were imposed and (b) can be identified by running a computer 
script at respondent’s Austin, Texas data center.  If respondent also provides 
to appellant by December 31, 2008, a computer program (and instructions for 
its use) which will enable appellant to view these appraisals in electronic form, 
and print out hard copies of the appraisals, respondent may satisfy this order 
by producing these appraisals in electronic form. 
After appellant reviews the pre-foreclosure appraisals which meet both 
qualification (a) and qualification (b) . . . , it shall determine its need for all 
pre-foreclosure appraisals which meet qualification (a) but not qualification 
(b).  Appellant shall then inform respondent of its need, if any, for the 
additional appraisals. 
On December 24, 2008, VA filed a supplemental motion for a protective order.  The 
motion misconstrued Mr. Kornicker’s declaration to read that production of each appraisal 
in electronic form would take one hour. Again, the agency asked for more time to produce 
the appraisals.  The Board denied the motion, noting that Mr. Kornicker’s estimate had been 
for the production of hard copies and that he had stated that production of electronic versions 
would be relatively simple.  Evidently, Mr. Kornicker’s assessment of the situation was far 
more accurate than agency counsel’s, for on December 30, VA produced a computer disk 
which allegedly contained 636 pre-foreclosure appraisals. 
By motion filed on January 12, 2009, Ocwen asked the Board to compel VA to 
produce all remaining pre-foreclosure appraisals which pertain to properties sold by the 
contractor and for which penalties that are the subject of this appeal were imposed -- as well 
as all other documents responsive to the contractor’s requests for production which had not 
yet been produced. With regard to the pre-foreclosure appraisals, Ocwen called to our 
attention a January 9 electronic mail message from agency counsel.  The contractor’s counsel 
had asked agency counsel, “Are there additional responsive files located outside of the 
Austin, TX data center?”  The response had been, “There may be additional files in third-
party appraisers’ hands.  However, those appraisers do not work for the VA and are under 
no contractual obligation to the VA. . . .  VA has no control or obligation to control those 
entities.”  

  
   
 
 
 
     
   
      
  
 
      
   
  
            
 
  
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In addition to noting the inconsistency between this response and Mr. Kornicker’s 
declaration that the additional appraisals were located at VA regional loan centers, Ocwen 
maintained: 
Because a property’s pre-foreclosure appraisal value forms the basis for the 
initial capital value (the amount used to calculate Return on Sale (“ROS”) for 
a property), the VA’s purported failure to retain or produce the documents 
demonstrating the pre-foreclosure appraisal value severely undermines 
Appellant’s ability to verify, challenge, and/or understand the basis for that 
value.  Further, it calls into question how the VA could have imposed penalties 
on Ocwen regarding properties for which it had no basis to verify the pre-
foreclosure property value. 
Ocwen asked -­
that Rule 33 sanctions and/or other remedies, including but not limited to a 
specific sanction which would preclude Respondent from imposing any ROS 
penalties under the contract for any property for which Respondent refuses or 
has failed to provide a pre-foreclosure appraisal, be imposed against the VA, 
as previously requested, to address Respondent’s repeated discovery violations 
and to overcome this serious prejudice to Appellant’s ability to prove its case. 
With regard to documents other than pre-foreclosure appraisals, Ocwen doubted that 
none of the requested documents were in VA’s possession.  It asked the Board to “require 
Respondent to submit a sworn declaration from an authorized VA representative that the VA 
has, to the best of his or her knowledge, produced all documents in its possession or control 
that are responsive to each of Ocwen’s Requests for Production.” 
In response to this motion, VA said that it was canvassing its regional loan centers to 
find requested documents there and was assembling a list of appraisers used during the 
disputed period.  The agency promised to provide to the contractor all appraisals at the 
centers and the list of appraisers.  VA disputed the appropriateness of imposition of 
sanctions. 
On January 27, 2009, the Board issued an order addressing Ocwen’s January 12 
motion.  The order provided as follows: 
Respondent has resisted, for various reasons, providing to appellant, in 
discovery, copies of the pre-foreclosure appraisals which pertain to properties 
sold by appellant and for which penalties that are the subject of this appeal 

 
 
 
 
 
    
          
   
 
 
 
     
 
  
 
 
 
    
   
8 CBCA 1073 
were imposed.  As the Board understands the contract between the parties, 
penalties may be imposed on appellant by respondent when sales returns for 
a given period fall below a specified percentage of a pre-determined Return on 
Sale (ROS) amount, and a key factor in determining the ROS amount is 
foreclosure appraisal values.  The claim before the Board is a government 
claim for penalties, so respondent bears the burden of proving the validity of 
the claim.  If respondent does not provide an appraisal, for inspection and 
analysis by appellant, the Board will have no basis on which to conclude that 
the ROS amount for the property in question was reasonable.  Without a 
rationally-premised ROS amount, the Board will have no basis on which to 
conclude that a penalty calculated with reference to that ROS amount is 
reasonable. Consequently, it is and has always been incumbent on respondent 
to produce the appraisals in order to prevail in the case. 
The Board is mystified as to why respondent has resisted for so long 
producing in discovery documents which are critical to its success in the case. 
These documents should have been produced, under the Board’s [order], by 
August [29], 2008 (in response to appellant’s July 15, 2008, request).  The 
Board will afford respondent one last chance to produce the documents. 
Respondent is ordered to produce to appellant, by Friday, February 27, 2009, 
each and every foreclosure appraisal on which it intends to rely in maintaining 
that the penalties it is claiming are reasonable.  Respondent has now been 
afforded [nearly] six months in addition to the time provided by our [order] to 
produce the documents in question.  The Board will preclude respondent from 
introducing, or relying on, any foreclosure appraisal it has not produced to 
appellant by February 27. 
Respondent remains obligated to produce to appellant, in discovery, all 
documents other than the pre-foreclosure appraisals which are responsive to 
appellant’s requests for production.  If respondent is confused by any of the 
requests, it should long ago have asked appellant for clarification; in any event, 
much clarification is provided in appellant’s second supplemental motion to 
compel.  To the extent that respondent has documents which are responsive to 
appellant’s requests for production but have not yet been produced (other than 
the pre-foreclosure appraisals), respondent is ordered to supplement its 
response to appellant’s requests, so as to make its response complete, by 
Friday, February 13, 2009. Respondent shall also file with the Board (with a 
copy to appellant), by Friday, February 13, a sworn declaration from a 
knowledgeable, authorized representative of respondent. That sworn 
declaration shall (a) explain all of respondent’s efforts to find documents 

 
 
 
 
 
 
   
  
 
 
  
      
9 CBCA 1073 
which are responsive to the requests and (b) state that to the best of the 
declarant’s knowledge, respondent has produced all documents in its 
possession or control that are responsive to each of appellant’s requests for 
production. 
VA did not comply with this order.  It did not produce to Ocwen any foreclosure 
appraisals by February 27.  It did not supplement its response to Ocwen’s requests for the 
production of documents other than appraisals by February 13.  It did not file with the Board 
a sworn declaration from any VA employee by February 13. 
On March 3, 2009, Ocwen filed another motion for sanctions.  In this motion, the 
contractor maintained: 
Respondent’s complete disregard and contempt of the Board’s January 27, 
2009 Order, considered in conjunction with Respondent’s numerous and 
flagrant violations of Board Rules and Orders throughout this Appeal, should 
be sanctioned by the Board with entry of judgment in favor of Appellant. 
Given Respondent’s patent unwillingness to meaningfully participate any 
further in this Appeal, judgment in Appellant’s favor is the only relief that is 
appropriate. 
The Board issued an order on March 3, authorizing VA to file a response to this 
motion on or before March 10.  We also asked VA to respond to the following questions: 
Should the Board grant summary relief to appellant as to all penalties assessed 
with respect to properties for which respondent has not provided pre-
foreclosure appraisals? Appellant notes that “a property’s pre-foreclosure 
appraisal value forms the basis for the initial capital value (the amount used to 
calculate Return on Sale (‘ROS’) for a property.”  Motion at 5.  A penalty is 
assessed with respect to the ROS.  Contract at C-9.  If a pre-foreclosure 
appraisal value for a property is not included in the evidence on which the 
Board will decide the case, how can a penalty be justified as to that property? 
On March 5, VA filed an “initial response” to the order.  This filing stated in full, 
“The Respondent intends to respond to said Order by close of business on 11 March 2009.” 
By order issued later on March 5, the Board said that it -­
appreciates respondent’s attentiveness to the order and assumes that the 
reference to “11 March” is a typographic error, since respondent must realize 
that it is not the province of a party to determine when it will respond to a 

  
   
  
 
     
 
  
 
    
      
  
  
 
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Board order.  The last date for filing a response was established as, and 
remains, March 10, 2009.  The Board will accept filings on that date, as on 
other dates, as late as 4:30 p.m., Eastern Time.  Rule 1(b)(5), (10). 
We also advised VA that a party wishing an enlargement of time for a filing may request one, 
following the provisions of Rule 3(b). 
VA did not request an enlargement of time in which to file its response to Ocwen’s 
March 3 motion for sanctions.  The agency did not respond to the motion by March 10, which 
the Board had identified as “[t]he last date for filing a response.” VA did file a response, 
with numerous attachments, on March 11.  Ocwen moved to strike this untimely response. 
The Board cautioned the parties early in the proceedings, in an order issued on 
June 26, 2008, “The Board is not required to accept untimely filings.” We amplified this 
warning, with specific reference to a response to Ocwen’s March 3, 2009, motion for 
sanctions, on March 5, 2009.  In light of these express cautions, the motion to strike is 
granted.  We treat VA’s March 11 filings as not having been made. 
Discussion 
Board Rule 33(c), “Sanctions,” provides: 
When a party or its representative or attorney or any expert/consultant fails to 
comply with any direction or order issued by the Board (including an order to 
provide or permit discovery), or engages in misconduct affecting the Board, 
its process, or its proceedings, the Board may make such orders as are just, 
including the imposition of appropriate sanctions. The sanctions may include: 
(1) Taking the facts pertaining to the matter in dispute to be 
established for the purpose of the case in accordance with the contention of the 
party submitting the discovery request; 
. . . . 
(4) Prohibiting the disobedient party from introducing in evidence 
designated documents or items of testimony; 
. . . . 
(6) Dismissing the case or any part thereof; 

 
  
 
 
  
 
 
           
 
  
   
 
  
  
    
   
 
 
   
      
  
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. . . . or 
(8) Imposing such other sanctions as the Board deems appropriate. 
As the General Services Board of Contract Appeals stated in Writing Co. v. 
Department of the Treasury, GSBCA 15634-TD, 03-1 BCA ¶ 32,107, at 158,760: 
This rule is much like Federal Rule of Civil Procedure 37(b). The Supreme 
Court has explained, “Rule 37(b)(2) contains two standards -- one general and 
one specific -- that limit a [trial court or board’s] discretion.  First, any 
sanction must be ‘just’; second, the sanction must be specifically related to the 
particular ‘claim’ which was at issue in the order to provide discovery.” 
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 
U.S. 694, 707 (1982); see generally 2 James Wm. Moore, et al.,  Moore’s 
Manual Federal Practice & Procedure § 15.13 (1995). 
Throughout the discovery process in this appeal, VA has failed to produce pre-
foreclosure appraisals which are of critical importance to the agency’s claim.  The 
whereabouts of those appraisals is uncertain, for it seems to change with each passing filing 
by the agency.  Wherever they may be, however, they have not been produced, despite a lack 
of objection to their production, repeated requests and motions by the contractor, and 
repeated orders by the Board.  
In its order of January 27, 2009, the Board pointed out to VA the vital importance of 
these documents to its claim and made clear that it would “preclude respondent from 
introducing, or relying on, any foreclosure appraisal it has not produced to appellant by 
February 27.”  Precluding VA from introducing in evidence any of the pre-foreclosure 
appraisals it has failed to produce simply enforces an order which we have already made in 
this case.  This is the least we can do in fairness to Ocwen, which has been trying for many 
months, if not years, to examine the appraisals in order to test their reasonableness.  The 
sanction is just, and it is specifically related to VA’s claim, which is at issue in the case.  See 
Writing Co. , 03-1 BCA at 158,760 (citing Transclean Corp. v. Bridgewood Services, Inc. , 
290 F.3d 1364, 1373-74 (Fed. Cir. 2002)).  We now impose that sanction. 
Under the contract involved here, VA may impose penalties on Ocwen for its 
performance only when the proceeds obtained by the contractor in selling properties is less 
than a pre-determined Return on Sale.  The ROS is dependent in large part on the Initial 
Capital Value of properties, and that ICV is in turn dependent in large part on Foreclosure 
Appraisals -- “assessment[s] of value conducted in connection with . . . foreclosure[s].”  In 
the absence of an appraisal, an ICV cannot be determined.  In the absence of an ICV, an ROS 

       
 
         
     
   
  
  
  
    
 
  
   
    
   
 
   
  
 
  
   
        
    
 
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12 CBCA 1073 
cannot be determined. In the absence of an ROS, no penalty can be imposed.  Thus, for the 
properties for which VA is not permitted to introduce into evidence a foreclosure appraisal, 
there is no basis for imposing a penalty on Ocwen. We consequently grant the appeal as to 
the penalties imposed with respect to those properties. 
In taking this action, we recognize that VA has a figure for the appraised value of each 
of the properties in question.  Without access to the appraisal itself, however, there is no way 
of knowing whether this figure is reasonably-premised or not.  Ocwen has for years been 
unable to obtain the basis for taking advantage of a right granted to it by the contract -­
formulating a well-grounded petition for a temporary adjustment in the penalty on the theory 
that the 97% threshold used in the assessment of penalties could not be met due to 
circumstances beyond Ocwen’s control. More important at the moment, Ocwen has no way 
of evaluating whether the appraisal figure is reasonably-premised and, if Ocwen concludes 
that it is not, explaining to the Board why this is so.  Most important of all, the Board has no 
basis for accepting the appraisal figure as reasonable. 
We are reluctant to grant Ocwen’s motion for sanctions more extensively at this time. 
VA has responded to some of the contractor’s discovery requests, and it has not fully 
abandoned its responsibilities to prosecute the case. We are not certain, however, whether 
the agency can, without reference to the great bulk of appraisals, establish that any penalties 
may fairly be imposed on the contractor.  The contract requires that an ROS be based on all 
properties sold during a particular period, and it is not clear whether, by eliminating 
properties from the universe from which an ROS might be calculated, it is possible to 
calculate an ROS. We therefore hold in abeyance a ruling on the remainder of Ocwen’s 
motion.  VA is directed to provide to the Board and the contractor, within two weeks from 
the date of this decision -- by Thursday, April 2, 2009, a proffer of the portion of the claim 
(if any) it believes survives the decision.  If the proffer is that some of the claim survives, the 
proffer shall include a detailed explanation of how that amount is calculated and a complete 
list of the evidence which may be relied upon to support the amount.  After reviewing this 
proffer, and considering Ocwen’s comments on it, we will rule on the part of the motion as 
to which we have now held in abeyance. 
STEPHEN M. DANIELS 
Board Judge 

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We concur: 
CATHERINE B. HYATT JEROME M. DRUMMOND 
Board Judge Board Judge