IN THE BANKRUPTCY APPELLATE PANEL

FOR THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Bankruptcy Appellate Panel Case No. CC-11-1221
Bankruptcy Adversary Case No. 6:11-01001-SC
Bankruptcy Case No. 6:10-37900-SC
BRIAN W. DAVIES,
Debtor, Plaintiff, and Appellant
vs.
DEUTSCHE BANK NATIONAL TRUST COMPANY
As Trustee of the Residential Asset Securitization Trust 2007-A5, Mortgage Pass-
Through Series 2007E, under the Pooling and Servicing Agreement Dated March
1, 2007
Defendant, and Appellee,
APPELLANT’S OPENING BRIEF
Diane Beall (SBN 86877)
John H. Bauer (SBN 91471)
Gary Harre (SBN 86938)
8700 Warner Ave., Suite 200
Fountain Valley, CA 92708
Telephone: (714) 907-4182
Facsimile: (7140 907-4175
Attorneys for Appellant
Brian W. Davies
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TABLE OF AUTHORITIES
Americana Fabrics, Inc. v. L & L Textiles, Inc.,
754 F.2d 1524, 1529 (9th Cir. 1985).............................................................28
American States Ins. Co v. Kearns, 15 F.3d 142, 143-144 (9th Cir. 1994)............14
Beaver v Beaver, 117 NY 421, 428-429.................................................................21
Biggs v. Stovin (In re Luz Int'l, Ltd.), 219 B.R. 837, 842 (9th Cir. BAP 1998)....10
Boone v. United States, 944 F.2d 1489, 1492 (9th Cir. 1991)..................................3
Brown v. Felsen, 442 U.S. 127, 131, 60 L. Ed. 2d 767, 99 S. Ct. 2205 (1979)......28
Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904)............................................23
Cen-Pen Corp. v. Hanson, 58 F.3d 89, 92 (4th Cir. 1995)......................................13
Cooter & Gell v. Hartmarx Corp., 946 U.S. 384, 405 (1990)..................................3
Dunmore v. United States, 358 F.3rd 1107, 1112 (9th Cir. 2004)..........................26
Gruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986)......................................................21
Gratiot County State Bank v. Johnson, 249 U.S. 246, 248, 63 L. Ed.
587, 588, 39 S. Ct. 263 (1919)......................................................................18
Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986)..........................................15
Hauk v. JP Morgan Chase Bank United States, 552 F.3d 1114,(9th Cir. 2009)....19
In re Agard, No. 10-77338-reg, 2011 Bankr. LEXIS 488, at *58-*59
(Bankr. E.D.N.Y. Feb. 10, 2011)..................................................................29
In re Aniel, 427 B.R. 811, 816 (Bankr. N.D. Cal. 2010).........................................10
In re: Becker, 2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004.........................21
In re Bialac, 694 F.2d 625, 627 (9th Cir. 1982)......................................................10
In re Canellas,2010 WL 571808 (Bankr. M.D.Fla. Feb 9, 2010)...........................27
In re Centre de Tricot De Gaspe, Ltee.,
10 Bankr. Rep. 148, 149 (Bankr. S.D. Fla. 1981).........................................18
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In re Conejo Enters., 96 F.3d 346, 351 (9th Cir. 1996).............................................2
In re Doble 2011 Bankr. LEXIS 1149 (S.D. Cal. April 2011)................................20
In re Fawn Ridge Partners, LP, BAP No. CC-09-1396-HPD (March 29, 2010)....27
In re Fitch, 2009 WL 1514501 (Bankr. N.D. Ohio May 28, 2009)........................27
In re Gavin, 319 B.R. 27, 32 (BAP 1st Cir. 2004)..................................................10
In re Eleazar Salazar, WL 1398478 (Bankr. S.D. Cal. 2011).................................17
In re Kang Jin Hwang, 396 B.R. 757, 768 (Bankr. C.D. Cal. 2008)......................26
In re Kemp, 391 B.R. 262, 263 (D.N.J. 2008)........................................................13
In re Lee, 179 B.R. 149, 155 (Bankr. 9th Cir. 1995)................................................3
In re Lee, 2009 WL 1917010 (Bankr. C.D. Cal, Jan. 26, 2009).............................27
In re Mansaray-Ruffin, 530 F.3d 230, 237-38 (3d Cir. 2008) ..............................13
In re Maisel, 378 B.R. 19 (Bankr.D. Mass. 2007) .................................................27
In re McCoy, No. 10-63814-fra13,
2011 Bankr. LEXIS 534, at *10 (Bankr. Or. Feb. 7, 2011)..........................29
In re Nat'l Environ. Waste Corp., 129 F.3d 1052, 1054 (9th Cir. 1997)...................2
In re Perry (1983, DC Md) 29 BR 787, 9 CBC2d 93 ...............................................5
In re Urdahl, 07-07227-PB7 (Bankr. S.D. Cal. June 9, 2008)................................27
In re Veal, 9th Circuit BAP Nos. AZ-10-1055, az 10-1056, (June 10, 2011)...13,29
In re Wesband, 427 B.R. 13, 18 (Bankr. D. Ariz 2010)..........................................10
In re Wilhelm, 407 B.R. 392, 400 (Bankr. D. Idaho. 2009)........................10, 11, 27
Katchen v. Landy, 382 U.S. 323 (1966)..................................................................28
Kaspar Wire Works, Inc. v. Leco Eng'g & Mach., Inc.,
575 F.2d 530, 535 (5th Cir. 1978).................................................................27
Kermani v. Liberty Mut. Ins. Co.,
4 A.D.2d 603 (N.Y. App. Div. 3d Dep't 1957).............................................23
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Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004) ................................................26
LaSalle Bank Nat'l Ass'n v. Lamy, No. 030049/2005
2006 NY Slip Op 51534U, slip op. 2 (N.Y. Sup. Ct. 2006).........................30
Maryland Cas. Co. V. Pacific Coal & Oil Co., 312 U.S. 270 (1941).....................15
Matter of Cohn, 187 App. Div. 392, 395.................................................................21
Matter of Szabo, 10 N.Y.2d 94, 98-99....................................................................21
McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986)...................................28
MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010)...................................................30
Montana v. United States, 440 U.S. 147.................................................................29
Parklane Hosiery Co. v. Shore,
439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979)................................28
Polhemas v. Trainer, 30 Cal. 686, 688 (1866)........................................................17
Pribus v. Bush, 118 Cal App. 3d 1003 (1981)........................................................16
Rand Corp. v. Yer Song Moua, 559 F.3d 842, 845 (8th Cir. 2009)........................19
Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586...................22, 23
Roberts v. Fleet Bank, 342 F.3d 260, 266 (3d Cir. 2003).......................................20
Robi v. Five Platters, 838 F.2d 318;
1988 U.S. App. LEXIS 970; 5 U.S.P.Q.2D (BNA) 1709.............................28
Speelman v. Pascal, 10 N.Y.2d 313, 318-320.........................................................21
United States v. Gould (In re Gould),
401 B.R. 415, 425 n.14 (9th Cir. BAP 2009)................................................10
United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en banc).........3
US Bank National Association, Trustee vs. Antonia Ibanez,
and a consolidated case for ABFC 2005-OPT1 Trust,
ABFC Asset Backed Certificates, Series 2005-OPT1.......................................26
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Valley Forge Christian Coll. V. Am. United for Separation of Church and State,
454 U.S. 464, 472 (1982)...................................................................................26
Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928)..............................................22
Vincent v. Rix, 248 N.Y. 76, 83..............................................................................22
Warth v. Seldin, 422 U.S. 490, 498 (1975)............................................................26
STATUTES
California Code § 2932.5.........................................................................................17
California Commercial Code §1201(21)(A)............................................................14
California Code of Civil Procedure §760.010 et. seq.............................................25
California Uniform Commercial Code § 3201 et. seq.............................................13
California Commercial Code § 1-201.....................................................................13
California Commercial Code §§ 3-305 to 3-309.....................................................17
California Commercial Code §§ 3-602 to 3-604.....................................................14
California Commercial Code §3817 .......................................................................25
Fed. Rules of Bankruptcy Procedures 3001............................................................29
Fed. Rules of Bankruptcy Procedures 7001....................................................5,13,14
Fed. Rules of Bankruptcy Procedures 8010..............................................vii.,viii, ix.
Fed. Rules of Bankruptcy Procedures 8013..............................................................3
Federal Rule Civil Procedure 7.1..............................................................................8
Fed. Rules of Civil Procedure 17...........................................................................26
Federal Rules of Civil Procedure 57.......................................................................14
11 U.S.C. § 362(c)(2)(C)...........................................................................................5
11 U.S.C.§ 362(d)..................................................................................................1, 4
11 U.S.C. § 362(g) ..................................................................................................12
11 U.S.C. § 506..................................................................................................13, 14
11 U.S.C. § 554(b) ....................................................................................................5
15 U.S.C. § 1601 .......................................................................................................1
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Chapter 7 of Title 11 U.S.C.......................................................................................4
28 U.S.C. § 158..........................................................................................................2
28 U.S.C. §2201(a) .................................................................................................14
AUTHORITIES
Black's Law Dictionary 264 (8th ed. 2004) ............................................................10
Collier on Bankruptcy, supra, at para. 3.03[7][d][iii] n.213...................................18
L. King, 2 Collier on Bankruptcy, para. 301.07-.08 (15th ed. 1983)......................18
R. Levin, Bankruptcy Appeals, N.C.L. Rev. 967, 985 & n.140 (1980)..................18
Restatement (Third) of Property (Mortgage) § 5.4 cmt. a (1997).....................11, 18
Richard R. Powell, Powell on Real Property, § 37.27[2] (2000). ..........................12
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CERTIFICATION REQUIRED BY BAP RULE 8010(a)-1(b)
CERTIFICATION AS TO INTERESTED PARTIES
The undersigned certifies that the following parties have an interest in the
outcome of this appeal. These representations are made to enable judges of the
Panel to evaluate possible disqualification or recusal:
BRIAN WILLIAM DAVIES
(Plaintiff-Appellant)
DEUTSCHE BANK NATIONAL TRUST COMPANY AS
TRUSTEE OF THE INDYMAC RESIDENTIAL ASSET
SECURITIZATION TRUST 2007-A-5, MORTGAGE PASS THROUGH
SERIES 2007-E, UNDER THE POOLING AND SERVICING AGREEMENT
DATED MARCH 1, 2007
(Defendant-Appellee)
Onewest Bank, FSB
(Agent of Appellee)
Submitted on June 16, 2011
___________________________
Gary Harre, Esq.
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STATEMENT REGARDING FORM OF BRIEF
I certify that this brief complies with the form requirements as set forth in 9
th
Cir. BAP R. 8010(a)-1 because this brief has been prepared in proportional spaced
typeface using Microsoft Word in 14 point Times New Roman, with one-inch
margins and clearly printed on white paper, 8 ½ inches by 11 inches.
STATEMENT REGARDING LENGTH OF BRIEF
I certify that this brief complies with limitation set forth in 9
th
Cir. BAP R.
8010(c)-1 because it does not exceed thirty pages.
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests oral argument.
APPLICABLE STATUTES AND RULES
Pursuant to Rule 8010(b) of the Federal Rules of Bankruptcy Procedure, the
following statutes and rules are at issue in this appeal and are provided in pertinent
part as follows:
1) 11 U.S.C. § 362 Automatic Stay:
2) Fed. Rules of Civil Procedure 17(a)(1)8 (made applicable by Rule 7017) for
purposes of obtaining relief from stay under 11 U.S.C.§ 362(d).
3) Federal Rules of Bankruptcy Procedure 7001: (2) to determine the validity,
priority, or extent of a lien or other interest in property,. under Rule 4003(d),
(6). (7) to obtain an.equitable relief,(9) to obtain a declaratory judgment of the
....
4) 28 U.S.C. §2201(a) provides: ( Declaratory Judgment Act ) In a case of actual
controversy within its jurisdiction ..interested party seeking such
declaration, whether or not further relief is or could be sought
5) NewYork Trust Laws: a common lawtrust created pursuant to the laws of the
State of New York.
6) California Civil Code Section 2932.5: where a power to sell real property is
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given to a mortgagee, or ..an instrument intended to secure the payment ...The
power of sale ...if the assignment is duly acknowledged and recorded.
7) California Code of Civil Procedure 1060 et. seq. as follows:"The
remedies..chapter are cumulative, and shall not be construed as restricting any
remedy, provisional ..., provided by law for the benefit of any party to such
action, and no judgment under this chapter shall preclude any party from
..additional relief based upon the same facts."
8) Federal Rules of Civil Procedure (hereinafter "FRCP") 57. The request for
declaratory relief is, among other things, a safeguard in the event that only a
judicial declaration will accomplish the intent to give the law full force and
affect to establish the rights and legal relationships between the parties and the
various issues raised in the Complaint.
9) 15 U.S.C. §1641 (G): Notification of Sale or Transfer of Mortgage
Loans. (G) Notice of New Creditor.- (1) in General. ...this title, not later
than 30 days after the date on which a mortgage loan is sold or otherwise
transferred ......including (A) the identity...new creditor; (B) the date of
transfer; (C) how to reach a... on behalf of the new creditor; (D) ..transfer of
ownership of the debt is recorded; and (E) any other relevant information..
the new creditor.
10) Uniform Commercial Code §§ 1-201, §§3-201-3-204, §§3-305-3-309, §§3-
602-3-604, §9-102, §9-109, §9-203
CERTIFICATE REQUIRED BY 9
th
CIRCUIT BAP R. 8010(a)-1-(c)
The undersigned certifies that there are no known relates cases and appeals.
June 16, 2011
_________________________________
Gary Harre, Esq.
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ISSUES PRESENTED FOR REVIEW
1. Whether the Bankruptcy Court in Granting Deutsche Bank s Motion
for Judgment on the Pleadings abused its discretion.
2. Whether the BankruptcyCourt committed clear error in Denying Davies'
Motion for Judgment on the Pleadings with prejudice following prior judicial
determination that Deutsche Bank had no constitutional or prudential standings to
seek relief sought in the prior Motions under 11 U.S.C. §362(d).
3. Whether the Bankruptcy Court committed clear error in finding that the
doctrines of Res Judicata, Collateral Estoppel and Laches were not applicable.
4. Whether the Bankruptcy Court committed clear error in finding that
Davies' Declaratory Relief requests to determine validity of liens under Bankruptcy
Codes is duplicative of Quiet Title claim.
5. Whether the Bankruptcy Court committed clear error in finding that
violation of the Truth and Lending Act found at 15 U.S.C. §1601 et. seq. requires
Davies to plead actual general damages or whether statutory damages are sufficient
to sustain statutory claims.
6. Whether the Bankruptcy Court committed clear error in dismissing
Davies Quiet Title claim with prejudice when prior ruling has determined that
Deutsche Bank has no legal standing to assert claims as a secured party under the
Deed of Trust.
STATEMENT OF JURISDICTION
Brian W. Davies (hereinafter Debtor, Plaintiff or Appellant ) is the
Debtor in the Bankruptcy Case designated as In re Brian W. Davies, Case No. 6:10-
bk-3700-SC(Bankr. C.D. Cal.), and Plaintiff in the Adversary Case Brian W. Davies
V. Deutsche Bank National Trust Company (hereinafter Deutsche Bank or
1
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DBNTC ) et. al. Case No. 6:11-ap-01001 (Bankr. C.D. Cal.). (Exhibit Tab 12,
(hereinafter Ex 12), Excerpts of Record (hereinafter ER ) ER 0146 to ER 0167)
Appellant s final amended schedules designate that the loan on his primaryresidence
property, is disputed and unsecured.
Appellant Petitions the Bankruptcy Appellate Panel of the United States Court
of Appeals for the Ninth Circuit to review the Bankruptcy Court s ruling on his
Adversary Complaint dismissal with prejudice. Final Orders were entered with
prejudice on May 10, 2011 Granting the Defendant DBNTC Motion for Judgment
on the Pleadings (hereinafter MJOP ) (Ex 36, ER 0870 to ER 0872) and Denying
Plaintiff's Motion for MJOPor Alternatively, SummaryAdjudicationagainst DBNTC
with prejudice.
1
(Ex 38, ER 0886 to ER 0888) (the Orders ) Appellant Brian W.
Davies timely filed his Notice of Appeal on May 6, 2011. (Ex 35, Excerpt of Records
(hereinafter ER ) ER 0866 to ER 0868).
This Court has jurisdiction to hear appeals fromthe bankruptcy court pursuant to
28 U.S.C. § 158(a)(1), because this appeal is taken from final orders issued by the
bankruptcyjudge granting Defendants MJOP and denying the Appellant s MJOPwith
prejudicewhicheffectivelydismissed Appellant s AdversaryComplaint withprejudice.
See In re Nat’l Environ. Waste Corp., 129 F.3d 1052, 1054 (9th Cir. 1997) (citing In re
Conejo Enters., 96 F.3d 346, 351 (9th Cir. 1996).
This Appeal arises from the following Bankruptcy Court:
United States Bankruptcy Court-Central District of California (Riverside)
Honorable Thomas B. Donovan (presiding Until January 2011)
Honorable Scott C. Clarkson Federal Courthouse
3420 Twelfth Street
Riverside California 92501
1
in the United States Bankruptcy Court for the Central District of California Riverside
Division ("the "Bankruptcy Court")
2
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STANDARD OF APPELLATE REVIEW
The Appellate Court may reviewfor abuse of discretion pursuant to Federal
Rule of Bankruptcy Procedure 8013. In the 9
th
Circuit, where there are mixed
questions of fact and law, the appellate court may conduct a de novo review.
Boone v. United States, 944 F.2d 1489, 1492 (9
th
Cir. 1991); In re Lee, 179 B.R. 149,
155 (Bankr. 9
th
Cir. 1995) The abuse of a discretion test involves two distinct
determinations: first, whether the court applied the correct legal standard; and second,
whether the factual findings supporting the legal analysis were clearly erroneous.
United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir. 2009) (en banc). If the
court failed to apply the correct legal standard, then it has "necessarily abused its
discretion." Cooter & Gell v. Hartmarx Corp., 946 U.S. 384, 405 (1990)
This Appellant hereby first asks the court to address whether the Bankruptcy
Court abused its discretion in dismissing the complaint without leave to amend.
Second, the Appellant requests that the Bankruptcy Appellate Panel review whether
Onewest Bank, FSB (hereinafter Onewest ) acted as the agent for Deutsche Bank
and whether Deutsche Bank was in privity with both of Onewest s Denied Motions
for Relief from Stay (hereinafter MFRS ). Third, the Appellant advances the
proposition that the evidence provided to the bankruptcy court was conclusive as
a matter of law to determine that the Appellee was "not the proper holder" or
"beneficiary entitled to payment of the promissory note" and did not "hold the
properly assigned Security Instrument.
STATEMENT OF THE CASE
A. THE COURTDENIEDONEWEST AS AGENTFORDBNTC“MFRS”
The Appellant challenges Deutsche Bank National Trust Company s
3
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(hereinafter DBNTC )
2
status as a secured creditor. DBNTCfailed to convince the
Bankruptcy Court of any legal standing in two Denied MFRS under 11 U.S.C. §362.
(Ex 9, ER 0124 to ER 0129) By way of history, shortly after Plaintiff filed for
Chapter 7 pursuant to the Code, Onewest Bank FSB (hereinafter Onewest ) filed
a MFRS ( Ex 1, ER 0002 to ER 0038) and Debtor Objected ( First Objection ). (Ex
2, ER 0040 to ER 0062) Prior to the hearing on the initial Onewest Motion (after
reviewing Appellant s objection thereto), Onewest reconfigured itself as Onewest
as servicing agent for DBNTC. This newly transformed Movant filed a Second
MFRS, (Ex 3,4, ER 0064 to ER 0097) and Debtor filed an Objection ( Second
Objection ) to include the New Movant DBNTC. (Ex 4, ER 0098 to ER 0108) No
reply papers were filed by Movants to either of the Appellant s Objections.
The Hearing on these contested Motions was held concurrently. The
consolidated MFRS were Denied.
3
The Second Objection included as exhibits
a first proffered Assignment dated August 10, 2009 (Ex 2, ER 0057) and a second
alleged Assignment of the DOT dated September 20, 2010. (Ex 2, ER0058). These
were part of the consolidated record reviewed bythe Honorable Thomas B. Donovan.
The Court s Order Denying the MFRSwas served on DBNTC s Trust Administrator.
(Ex 9, ER 0127 and ER 0129) Onewest and DBNTC failed to file any amended
MFRS and the bar date for filing a Proof of Claim has expired. DBNTC did not
appeal. DBNTC failed on the record to demonstrate there was a proper conveyance
2
as Trustee of the Indymac Residential Asset Securitization Trust 2007-A5 (hereinafter
"RAST 2007-A5"), Mortgage Pass-Through Series 2007-E, under the Pooling and Servicing
Agreement dated March 1, 2007 (Ex 13, ER 0169 to ER 0386)
3
The Court made changes on the proposed order to include a finding of fact that
"Onewest" and "Onewest as Agent of DBNTC" lacked evidence of Standing, and that the
declarations and the proffered documents described as "Assignment of the Deed of Trust"
(hereinafter "DOT") lack credibility. (Ex 9, ER 0124 to ER 0129)
4
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of the Promissory Note (and DOT) as outline in the RAST 2007-A5 Pooling &
Servicing Agreement ( PSA ).
4
No newsupportive documents were presented in the
interim to suggest that DBNTC is a creditor at all or had any standing whatsoever.
B. THE APPELLANT FILED AN ADVERSARY AGAINST DBNTC TO
DETERMINE THE VALIDITY OF ANY LIEN OR CLAIMS
Appellant's Adversary Procedure was filed in part to determine the status and
validity of DBNTC's purported secured claim under Federal Rules of Bankruptcy
Procedure 7001. (Ex 12, ER 0146 to ER 0168) The Appellant has obtained an order
for abandonment 11 U.S.C. § 554(b) and no discharge of debt has occurred (Ex 11,
ER 0142 to ER 0144) it appears that the Automatic stay remains in effect in
accordance with 11 U.S.C. § 362(c)(2)(C). In re Perry (1983, DC Md) 29 BR 787,
9 CBC2d 93 ( abandonment of property did not terminate an automatic stay.).
C. THECOURTERREDINGRANTINGDEUTSCHEBANK'SMJOPAND
DENYINGAPPELLANTS MJOPWITHPREJUDICEANDERRORIN
LAW IN DENYING CLAIMS
The Panel should find that the Bankruptcy Court abused its discretion in
granting DBNTC s Judgment onthe Pleadings and dismissing Plaintiff s MJOP with
prejudice, and made numerous errors set forth in The Statement of Issues Presented
For Review. This panel should reverse the Bankruptcy Courts Orders, since the
record of evidence (including the Securities and Exchange filings, MERS
subpoenas, and DBNTC subpoenas) does not support a finding that DBNTC was a
properly perfected secured creditor holding a legitimately conveyed promissory note
or entitled to a Judgment on the Pleadings.
4
Section 2 Conveyance of the Mortgage Loans for RAST 2007-A5. (Ex 13, ER 0227 to
ER 0235)
5
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STATEMENT OF FACTS
A. THE CHAPTER 7 BANKRUPTCY CASE
The Appellant is an individual, and debtor of the within captioned bankruptcy
case, by voluntary petition.
5
On November 16, 2006, Plaintiff obtained a loan of
$441,350 from an undisclosed and unrepresented source. However, Universal
American Mortgage Companyof California (hereinafter UAMCC ) was represented
to be the creditor secured by a first deed of trust (hereinafter DOT ).
6
On July 14,
2009, a Notice of Default was recorded by an agent of an unknown beneficiary. (Ex
14, ER0418 to ER0420) Subsequently on August 20, 2009, a purported Assignment
of DOT to DBNTC was recorded. (Ex 14, ER 0421) Then on October 16, 2009, a
Substitution of Trustee was recorded. (Ex 14, ER 0422) On September 20, 2010 a
Second Assignment of the DOT was proffered as part of the Motions for Relief from
Automatic Stay(hereinafter MFRS ). ( Ex 14, ER0424) On August 2, 2010 a Notice
of Trustee Sale was filed. (Ex 21, ER 0651 to ER0652) Plaintiff filed his Chapter 7
petition on August 31, 2010 listing the loan on the subject property as unsecured and
disputed on the amended schedules.
B. “ONEWEST”&“ONEWESTAGENTDBNTC”DENIED“MFRS”.
On September 23, 2010, Onewest Bank (hereinafter Onewest ) filed an MFRS
with respect to the Subject Property in the main Case No. 6:10-bk-37900. (Ex one,
ER 0002 to ER 0039) Debtor filed an Objection ( First Objection ) on October 6,
2010. (Ex 2, ER 0039 to ER 0063) Onewest filed a second Motion on October 19,
5
For relief under Chapter 7 of the Bankruptcy Code Central District of California,
Riverside Division Case No. 6:10-bk-37900.
.
6
43277 Sentiero Drive, Indio, California. (hereinafter "Subject Property") ( Ex 14, ER
0400 to ER 0417).
6
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2010 indicating that it was the servicing agent for Deutsche Bank. (Ex 3, ER 0063
to ER 0086 and ER 0086 to ER 0098) Debtor filed an objection ( Second
Objection ) on November 5, 2010 to address the filing of the new Movant Deutsche
Bank. (Ex 4, ER 0098 to ER 0108) On January 7, 2011, the Court entered an order
denying the concurrently contested MFRS in which the Court noted that:
1) Onewest Bank, and OneWest Bank as Agent for Deutsche Bank lack standing.
2) Movant's Declaration Lacks Credibility, having signed both as an employee of
Movant and as an agent for Mortgage Electronic Registration Systems, Inc.
(hereinafter MERS") (Ex 9, ER 0124 to ER 0129)
C. APPELLANT FILED AN ADVERSARY AGAINST DBNTC.
On January 2, 2011, Appellant filed an Adversary Complaint to determine
the status of any adverse interest held by DBNTCand to determine the validity of any
lien or claims of DBNTC. (Ex 12, ER0146 to ER0168) Appellant concurrently filed
Request for Judicial Notice (hereinafter RJN) #1, of the Securities and Exchange
Commission ( SEC ) public filings associated with RAST 2007-A5.
7
RJN #2
requested judicial notice of the land title records. (Ex 14, ER 0427 to ER 0441)
On February4, 2011, DBNTCanswered the complaint. (Ex 15, ER0426 to ER
0443) The Scheduling and Case Management Order was filed on March 14, 2011.
8
(Ex 17, ER 0461 to ER 0467) On April 5, 2011 DBNTC filed a Motion for
Judgment on the Pleadings (hereinafter MJOP ) (Ex 20, ER 0580 to ER 0593) with
7
These documents included the investor offering documents or "Prospectus" as well as
the formation documents creating RAST 2007-A5, including the Pooling and Servicing
Agreement (hereinafter "PSA"). (Ex 13, ER 0170 to ER 0385)
8
On February 2, 2011 reassignment was done by administrative order from the
Honorable Thomas B. Donovan to the Honorable Scott C. Clarkson.
7
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 17 of 42
RJN #6.
9
(Ex 21, ER 0595 to ER 0654) Plaintiff filed a MJOP or alternatively for
Summary Adjudication and Judgment against DBNTC.
10
(Ex 22, ER 0656 to ER
0670) Plaintiff filed Opposition to the MJOP (Ex 23, ER 0671 to ER 0674) and
Objection to DBNTC RJN #6. (Ex 24, ER 0677 to ER 0680) DBNTC filed
Opposition to the MJOP. (Ex 25, ER 0682 to ER 0703) Plaintiff filed Reply to the
Opposition to Plaintiff s MJOP. (Ex 27, ER 0737 to ER 0754)
Plaintiffs filed a Request to Strike for Failure to Comply with Federal Rule
Civil Procedure 7.1 and Local Rule 7.1-1. (Ex 29, ER 0761 to ER 0766) Initial
Disclosures of Defendant DBNTC was served on Plaintiff. (Ex 30, ER 0766 to ER
0771) DBNTC replied in Supported of the MJOP. (Ex 31, ER 0773 to ER 0779)
DBNTC filed an Objection to Plaintiff RJN #four. (Ex 32, ER 0781 to ER 0786)
Plaintiff replied to DBNTC Objection to RJN #four (Ex 33, ER 0787 to ER 0849),
and then filed a Supplemented a reply to the Opposition to Plaintiff s MJOP. (Ex 34,
ER 0850 to ER 0865)
D. DISPOSITION OF THE ADVERSARY COMPLAINT.
The combined MJOP was heard May 3, 2011 and Orders entered on May 10,
2011. DBNTC s motion was granted (Ex 36, ER 0870 to ER0873) Memorandumof
Opinion. (Ex 37, ER 0873 to ER 0884) Plaintiff's Motion was Denied with
prejudice (Ex 38, ER0885 to ER0889) Memorandumof Opinion. (Ex 39, ER 0890
to ER 0901) Plaintiff timely filed a Notice of Appeal on May 6, 2011 to the
Bankruptcy Appellate Court (hereinafter "BAP") as BAP Case No. CC-11-1221. (Ex
9
These land title records are identical (RJN #6 and RJN #7), and include the same
records as RJN #2 excepting the Second Assignment of the Deed of Trust, and adding a Notice
of Sale.
10
The filing by Plaintiff was Motion for Judgment on the Pleadings or alternatively
Summary Adjudication and Judgment against Deutsche Bank (hereinafter MJOP )
8
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 18 of 42
35, ER 0866 to ER 0868) Plaintiff filed an Emergency Motion to Stay pending
Appeal. (Ex 40, ER 0902 to ER 0922) On May 17, 2001 the Motion was denied. (Ex
45, ER 0950 to ER 956)
E. THEPSA, DBNTCBANKRUPTCYSUBPOENARESPONSE, MERS
SUBPOENA, THEMERS' AUDITTRAILANDTHELANDTITLERECORDS
WERE JUDICIALLY NOTICED AS PART OF THE EVIDENCE RECORD.
The Plaintiff s 1) RJN #1
11
(Ex 13, ER 0169 to ER 0386); 2) RJN #2, Land
Title Records (Ex 14, ER0387 to ER0425); 3) RJN#3, BankruptcySubpoena MERS
12
(Ex 16, ER0444 to ER 0461); 4) RJN # 4, Bankruptcy Subpoena DBNTC
13
(Ex
18, ER 0468 to ER 0528); 5) RJN #5
14
(Ex 19, ER 0528 to ER 579); DBNTC s RJN
#6, #7.
15
(Ex 26, ER 0704 to ER 0736) The Subject Property was Abandoned 11
U.S.C. §544 (b) (Order).
16
11
Pooling and Servicing Agreement (hereinafter "PSA") for RAST 2007-A5 from SEC.
12
"Audit Trail" by Mortgage Electronic Registrations Systems, Inc. (hereinafter
"MERS") of the purported 1st and 2
nd
promissory notes including the Transfer of Servicing
( TOS ) and Transfer of Beneficiary ( TOB ). Document is listed from current to past for
reference.
13
Deutsche National Bank as Trustee of the Indymac Residential Asset Securitization
Trust 2007-A5, Mortgage Pass-Through Series 2007-E, under the Pooling and Servicing
Agreement dated March 1, 2007 subpoena of records prior to adversary filing.
14
Central District of California Riverside Bankruptcy Case No. 6:10-bk-37900
15
The land title records are identical for each notice
16
Additionally it should be noted that to pursue the Davies Adversary, Appellant Davies
with the consent of the Trustee filed for abandonment of his property pursuant to 11 U.S.C. §544
(b) (Ex 10, ER 0130 to ER 0141), and on April 7, 2011 the Order Granting Debtor's Motion to
Compel Abandonment of the Property by the Trustee was granted and entered. (Ex 11, ER 0141
to ER 0145)
9
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ARGUMENT
Appellant s AdversaryMJOPwas Denied with prejudice, and DBNTC s MJOP
was granted. The Record indicates that Onewest acted as the agent of DBNTCin the
denied MFRS, therefore the granting of DBNTC s MJOP was not supported by the
law or the record. (Ex 46, ER 0960, Line 13 to ER 0964, Line 19) DBNTC s by its
agent Onewest clearly filed the MFRS against the debtor and the Honorable Judge
Thomas B. Donovan s court held that it did not have standing.
A. ONEWEST AND DEUTSCHE BANK POSSESS “NO COLORABLE
CLAIM.”
17
In order to seek relief fromthe stay, a Movant must have a "Colorable Claim"
in the property protected by the automatic stay. In re Wesband, 427 B.R. 13, 18
(Bankr. D. Ariz 2010) (Citing In re Wilhelm, 407 B.R. 392, 400 (Bankr. D. Idaho.
2009). All that a bankruptcy court must do before granting relief from the stay is
determine whether the moving creditor has presented a colorable claim that stay
relief is warranted. Biggs v. Stovin (In re Luz Int'l, Ltd.), 219 B.R. 837, 842 (9th Cir.
BAP 1998); United States v. Gould (In re Gould), 401 B.R. 415, 425 n.14 (9th Cir.
BAP 2009) Even so, the moving party must establish a prima facie case of its claim
or rights against a debtor or its estate to seek relief from stay. In re Bialac, 694 F.2d
625, 627 (9th Cir. 1982); In re Aniel, 427 B.R. 811, 816 (Bankr. N.D. Cal. 2010).
A prima facie case of standing requires the moving party demonstrate an
undisputed interest in the bankruptcy case that is hindered by the automatic stay.
Standing is lacking where a secured creditor cannot present the rudimentaryelements
of its claim. In re Gavin, 319 B.R. 27, 32 (BAP 1st Cir. 2004) (holding the moving
17
Black's Law Dictionary 264 (8th ed. 2004) defines a colorable claim as "a claim that is
legitimate and that may reasonably be asserted given the facts presented and the current law (or a
reasonable and logical extension thereof).
10
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party could not trace the chain of title through valid endorsements). There are two
threshold questions for establishing standing: (1) Has the Movant established an
interest in the promissory note? And (2) Is the Movant entitled to enforce the note?
In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009) ("each Movant must show
that it has an interest in the relevant note, and that it has been injured by debtor's
conduct"). The evidence which was presented to the court was sufficient to
determine the issue of standing, chain of title or have an evidentiary hearing and
dismissal with prejudice is an abuse and contrary to the law and facts.
DBNTC through its agent Onewest brought contested MFRS and the
Honorable Thomas B. Donovan s Court, in denying DBNTC s Motion essentially
determined fromthe court s record that DBNTChas No Colorable Claim based on
the assignments of the DOT
18
or the submitted endorsed promissory note.
19
In
essence, the Donovan Court determined that DBNTC was not entitled to enforce the
rights provided to the purported original lender in the Note and/or in the DOT.
20
(Ex
9, ER 0124 to ER 0129)
B. DBNTC DID NOT FILE A THIRD MFRS DESPITE NOTICE,
NORSUPPLYANYADDITIONALDISCOVERYDOCUMENTS.
DBNTC did not submit a third MFRS and as such sat on their rights. On the
record the Court passively questioned DBNTC with regards to Onewest s agency
18
There were two assignments considered on the record for MFRS one dated August 20,
2009. (Ex 2, ER 0057) and one dated September 20, 2010 (Ex 2, ER 0058)
19
The promissory note was entered for the MRFS (Ex 1, ER 0031 to ER 0035) and
submitted by DBNTC in their Bankruptcy Subpoena Response (Ex 18, ER 0476 to ER 0480)
20
When a note is split from a deed of trust "the note becomes, as a practical matter,
unsecured." Restatement (Third) of Property (Mortgage) § 5.4 cmt. a (1997). Additionally, if the
deed of trust was assigned without the note, then the assignee, "having no interest in the
underlying debt or obligation, has a worthless piece of paper."
11
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 21 of 42
status.
21
It is clear from the record that Deutsche Bank responded to a Subpoena.
22
It is also clear from the record that RAST 2007-A5" Trust Administrator Jennifer
Van Dyne received the Subpoena. (Ex 6, ER 0112) DBNTC s denied MFRS order
was served on the Trust Administrator all prior to the Adversary Complaint.
23
C. THEDONOVANCOURTDETERMINEDTHEASSIGNEDDOT
TO BE INEFFECTIVE.
Since the assignment of the DOTwas ineffective as determine by the Donovan
Court in its rulings on the MFRS then DBNTC's standing would depend on the
validity of the Endorsements.
24
DBNTC represented itself to be the holder of the
Note by virtue of a blank endorsement. (Ex 18, ER 0476 to ER 0480) Appellant
previously discussed this promissory note and the purported endorsements in detail
in his Objections to the MFRS and refers this court to those discussions and
incorporates them herein by reference.
25
An Adversary is properly done by the
21
(Ex 46, ER 0972, line 17 to ER 097, line 3) Transcript of May 3, 2011 Hearing
whereby The Honorable Scott C. Clarkson attempts to Question Deutsche Banks agency
Relationship with Onewest.
22
(Ex 32, ER 0780 to ER 0786) Deutsche Bank Bankruptcy Subpoena responses.
23
(Ex 9, ER 0124 to ER 0129) Deutsche Bank was served the Denied Order by proof of
Service document sent by The Honorable Thomas B. Donovan Court Clerk.
24
The denial of movant's proof of claim suggests , the doctrine that security depends on
the debt it secures controls, and with the debt disallowed, the movant normally cannot pursue the
real property security outside of bankruptcy. See 4 Richard R. Powell, Powell on Real Property, §
37.27[2] (2000).
25
In the first Objection to the MFRS the note was discussed in detail and according the
UCC (also in the second Objection to the newly added Movant Deutsche Bank) and is
incorporated here. (Ex 2, ER 0044, Line 10 to ER 0046, line 23) and (Ex 5, ER 0103, Line 1, to
ER 0108, Line 2).
12
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 22 of 42
debtor or trustee who is challenging the lien's validity, not the creditor.
26
Cen-Pen
Corp. v. Hanson, 58 F.3d 89, 92 (4th Cir. 1995). Indeed, 11 U.S.C. § 362(g)
expressly places the burden of proof on the party opposing the MFRS on all issues
except proving debtors' equity in the property.
D. UNDER FEDERAL BANKRUPTCY RULE 7001, AN
ADVERSARY PROCEEDINGMAYBE INITIATEDTODETERMINETHE
VALIDITY, PRIORITY, OREXTENTOFALIENOROTHERINTERESTIN
PROPERTY. THE COURT ERRED AS A MATTER OF LAW IN
DISMISSING THE FIRST AND SECOND CLAIMS.
When a debtor is seeking to invalidate a creditor's lien, the proper procedure
is for the debtor to file an adversary proceeding. See In re Kemp, 391 B.R. 262, 263
(D.N.J. 2008). Because the debtor is the party seeking to invalidate the lien, the
debtor is the party who has the burden of filing an adversary complaint. See In re
Mansaray-Ruffin, 530 F.3d 230, 237-38 (3d Cir. 2008); In re Kinion, 207 F.3d 751,
757 (5th Cir. 2000) (Debtor needed to file adversary); Cen-Pen Corp., 58 F.3d at 93
(finding debtors should have taken the "affirmative step" of filing an adversary
proceeding to challenge the validity of a lien). The Appellant was compliant with
F.R.B.P. 7001.
DBNTC seeks to have it both ways in Court. How can DBNTC point to
Onewest as though they do not know what is being filed in the courts? Other
bankruptcycases involving RAST2007-A5 suggest that Onewest is DBNTC s Agent.
26
Plaintiff filed his Adversary for Declaratory Relief and to Determine the Validity of
the Secured Claims proffered by Onewest individually and Onewest as Agent for DBNTC under
F.R.C.P. 7001and 11 U.S.C. § 506.
13
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27
Plaintiff filed this Appeal (Ex 35, ER 0866 to ER 0869) to reverse the bankruptcy
court s findings and to obtain a finding that Onewest is the Agent in privity with
DBNTC as an unsecured purported creditor and to grant Plaintiff s MJOP or remand
to amend the complaint and for further adjudication.
LEGAL ARGUMENTS
A. THE COURT ERRED IN DISMISSING THE CLAIMS FOR
“DECLARATORYRELIEF”AND“TODETERMINETHEVALIDITY,
PRIORITY, OR EXTENT OF A LIEN OR OTHER INTERESTS.”
28
The Appellant has a right to a "Declaratory Judgment" as is necessary to
effectuate the rights and legal status of Plaintiff as pertains to the Subject Property,
regardless of whether or not other remedy exists to accomplish the ends that Plaintiff
is seeking. The validity of the holdership and ownership of the Note, is determined
by following Uniform Commercial Code ("UCC") statutes.
29
The existence of
another adequate remedy does not preclude a declaratory judgment that is otherwise
appropriate.
30
The Declaratory Judgment Act 28 U.S.C. §2201(a) provides for
such.
31
American States Ins. Co v. Kearns, 15 F.3d 142, 143-144 (9
th
Cir. 1994) As
to a controversy to invoke declaratory relief, the question is whether there is a
27
See Appellant s RJN #1 filed with BAP collecting bankruptcy cases involving Onewest
Bank working and filing MFRS as agent for DBNTC including 3 cases with RAST 2007-A5.
28
F.R.B.P. 7001 AND 11 U.S.C. § 506
29
California Commercial Code §§ 1201, §§3201-3207, §§3301-3311, §3602, § 9-109.
See also: In re Veal, 9th Circuit BAP Nos. AZ-10-1055, AZ-10-1056, (June 10, 2011).
30
Federal Rules of Civil Procedure (hereinafter "FRCP") 57.
31
In a case of actual controversy within its jurisdiction any court of the United States,
upon the filing of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought.
14
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substantial controversy, between parties having adverse legal rights, or sufficient
immediacy and reality to warrant the issuance of a declaratory judgment. Maryland
Cas. Co. V. Pacific Coal & Oil Co., 312 U.S. 270 (1941).
Moreover, declaratory relief is only appropriate (1) when the judgment will
serve a useful purpose in clarifying and settling the legal relations in issue, and (2)
when it will terminate and afford relief from the uncertainty, insecurity, and
controversy giving rise to the proceeding. Guerra v. Sutton, 783 F.2d 1371, 1376 (9
th
Cir. 1986) Plaintiff has a right to declaratory rulings, under the facts of this case,
and supported by prior rulings and evidence that: 1) the assignment of the DOT to
DBNTC did not confer Colorable claim; 2) the assignments of the DOT are not
credible, 3) DBNTC does not have legal standing and, 4) DBNTC s position in other
Bankruptcy Cases would need to be consistent.
32
Evidentiary Irregularities are apparent in the two Assignments of the DOT
First on September 20, 2010, a purported Assignment of DOTalong with the note
to DBNTCwas done by MERS as Nominee of Universal American Mortgage Company
of California, a California Corporation (hereinafter UAMCC ) and submitted for the
MFRS.(Ex 2, ER 0057) This assignment included the wording Brian W. Davies, a
single man, as Trustor; to Universal American Mortgage Company, LLC as Trustee
( UAM ). UAM does not appear on the note or any endorsements but shows as the
beneficiary in the MERS Audit Trail. (Ex 16, ER 0450)
ASecond Assignment of the DOT along with the note dated on August 10, 2009
and referenced in Plaintiff s Objection to Movant Onewest s MFRS (Ex 2, ER 0058)
32
The Limited power of Attorney between Onewest and DBNTC was attached to
Plaintiff's reply DBNTC's Opposition MJOP. (Ex 27, ER 0744 to ER 0754)
15
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 25 of 42
uses a different wording Brian W. Davies, a single man, as Trustor; to Universal
American Mortgage Company, LLC as Trustee ( UAM ).
The Appellant s MERS Subpoena result demonstrates that UAM was listed on
the MERS Audit Trail as the Old Investor ( Beneficiary ) who assigned beneficial
ownership to the New Investor Orchid Island TRS, LLC. , on the January 4, 2007
entries entitled Transfer of Flow TOS/TOB ( Transfer of Servicing/Transfer of
Beneficiary ). (Ex 16, ER 0450)
The purported endorsed note submitted by DBNTCrepresents that by an undated
allonge UAMCC (Not UAM) endorsed without recourse to OpteumFinancial Services
an entity which went out of business in June 2007. Such documents would appear to
violate the holdings of Pribus v. Bush, 118 Cal App. 3d 1003 (1981). See (Ex 2,
ER0044 to ER0048) See also: (Ex 5, ER0105, Line 3 to ER0108, Line 2). The MERS
Audit Trail indicates that UAM, but not UAMCC would be the endorsing party.
B. MERS ACTING AS A NOMINEE FOR A NON MEMBER UAMCC
33
The original endorsed note was submitted with the MFRS and in DBNTC s
Subpoena response. The undated apparent allonge
34
to the endorsed note (Ex 18, ER
0480) makes clear that the purported Original Lender UAMCC represents to assign its
interests in the Note (the endorsee Opteum Financial ceased to exist by July 2007).
35
33
(Ex 16, ER 0443 to ER 0461) (Ex 34, ER 0852, Line 5 to ER 0854, Line 16)
34
This would include checking to see if any purported allonge was sufficiently affixed as
required by UCC § 3-204(a).See In re Weisband, 427 B.R. 13, 19-20 (Bankr. D. Ariz. 2010); In
re Shapoval, 441 B.R. 392, 394 (Bankr. D. Mass. 2010). Pribus v. Bush, 118 Cal App. 3d 1003
(1981)
35
Bonfire Of The Builders - By rushing into the mortgage business big-time,
homebuilders helped fuel the housing crisis. Mara Der Hovanesian. Business Week, Aug 13,
2007 edition.
Homebuilders really started to push these more aggressive mortgages down the throats
of potential buyers to boost sales," says G. Hunter Haas IV, who as head of mortgage research
16
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 26 of 42
However, MERS never held UAMCC as a member as documented by MERS.
36
Furthermore at the time of the purported assignments UAMCC (nor UAM) had any
interest in the note for MERS to assign. Polhemas v. Trainer, 30 Cal. 686, 688 (1866).
Thus, MERS' purported assignment of the DOT and the related note as nominee for the
Original Lender (UAMCC) and without a reference to either IndyMac Bank, FSB,
Indymac Federal Bank FSB or Onewest appears designed to disguise rather than to
illuminate the facts and lead to the conclusion that the proper assignment of the DOT
was not done. See Cal. Civil Code §2932.5 See also In re Eleazar Salazar WL
1398478 (Bankr. S.D. Cal. 2011)
37
As judicially determined, DBNTCis not a holder in due course if it does not have
possession of the original Note or is not the endorsee. DBNTC would need to
demonstrate the transactions which would support the purchase and sales of the Note
from origination until the purported assignment of the DOT along with the note. This
Appellant would not be required to make payment on this basis alone, pursuant to Cal.
Comm. Code §3305, which states that an obligor is not obliged to pay the instrument
if the person seeking enforcement of the instrument does not have the rights of a holder
in due course. If Plaintiff is not obligated to pay any underlying debt, then there is no
and trading for Opteum Financial Services (OPX ) had an insider's perspective on the
proceedings. Opteum has served as a middleman between Wall Street and builders. Opteum's
home-loan business was going sour. The investment banks and their clients were rejecting
builder-originated loans as too shaky and likely "Homebuilders were getting sloppy, and Wall
Street was giving more scrutiny," Haas says. In June, 2007 Opteum decided to get out of
home-loan brokering business and closed.
36
http://www.mersinc.org/ (Ex, ER 0458 to ER 0460) and in the MERS audit trail. (Ex
16, ER 0450)
37
valid foreclosure under California law requires both that the foreclosing party be
entitled to "payment of the secured debt" and that its "status as foreclosing beneficiary appear
before the sale in the public record title for the [p]roperty.").
17
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 27 of 42
debt for the DOT to secure, which establishes the DOT to be worthless and without
legal effect.
38
Plaintiff is entitled to declaratory relief that 1) Plaintiff is not required to pay
DBNTC because it did not have legal standing to assert a Colorable claim; 2) Plaintiff
is not required to pay DBNTC because the Note has not been produced to support
MFRS. Cal. Comm. Code §§3308-3309; and 3) the DOT in this case is of no force and
effect because DBNTC failed to produce evidence that it was entitled to payment.
MFRS involving RAST 2007-A5 are prevalent and DBNTC would need to keep a
consistent position in all MFRS.
39
An order for MFRS, is a judgment in rem, a conclusive determination of the
debtor's status in bankruptcy, and res judicata between the actual parties and the
proceeding to all the facts and subsidiary questions of lawon which it is based. Gratiot
County State Bank v. Johnson, 249 U.S. 246, 248, 63 L. Ed. 587, 588, 39 S. Ct. 263
(1919); In re Centre de Tricot De Gaspe, Ltee., 10 Bankr. Rep. 148, 149 (Bankr. S.D.
Fla. 1981); L. King, 2 Collier on Bankruptcy, para. 301.07-.08 (15th ed. 1983). Orders
for relief and other final decisions in "proceedings in bankruptcy" should be treated as
final and appealable as of right.
40
Plaintiff's position is supported by the filing of the
promissory notes as unsecured on his amended schedule F.
38
Restatement (Third) of Property (Mortgages) § 5.4 cmt. E (1997) ( in general a
mortgage is unenforceable if it is held by one who has no right to enforce the secured
obligation ). When a note is split from a deed of trust the note becomes, as a practical matter,
unsecured. Additionally, if the deed of trust was assigned without the note then the assignee,
having no interest in the underlying debt or obligation, has a worthless piece of paper.
39
Appellant RJN #1, sets forth California Bankruptcy Cases involving Onewest acting as
agent for DBNTC in MFRS involving RAST 2007-A5 and where relief was given.
40
MFRS orders have a finality that may be appealed. Collier on Bankruptcy, supra, at
para. 3.03[7][d][iii] n.213; R. Levin, Bankruptcy Appeals, N.C.L. Rev. 967, 985 & n.140 (1980).
18
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 28 of 42
C. STATUTORY DAMAGES ARE SUFFICIENT EVEN IN THE
ABSENCE OF ACTUAL DAMAGES
The Court erred in requiring Plaintiff to showthat actual damages in order to have
a claim for relief 15 U.S.C. §1641 (G). (Ex 46, ER 0983, Line 9 to ER 0984, Line 8)
This is an error in that 15 U.S.C. §1641 allows for Statutory Damages which are
designed to be punitive to the party who violates the Statute. Statutory damages are
$4,000 plus attorney fees.
Plaintiff alleged and DBNTC admitted that DBNTC received an assignment of
the DOT by MERS as a nominee for UAMCC on September 20, 2010, and the Deed of
Trust was assigned and recordedinthe Riverside CountyLand Title Records. Complaint
(Ex 12, ER 0163, ¶ 94) Answer (Ex 15, ER 0437, ¶ 94) Plaintiff alleges that transfer of
the DOT as proffered on September 20, 2010 is subject to 15 U.S.C. §1641. DBNTC
lacked sufficient knowledge or belief to know what documents have been sent to
Plaintiff. Complaint (Ex 12, ER 0163, ¶ 95) Answer (Ex 15, ER 0437, ¶ 95) See also
(Ex 46, ER0983, Line 3 to ER 0984, Line 8)
But § 1641(g)(1) does not merely require action from a creditor only upon a
request by the obligor. Rather, § 1641(g)(1) puts an affirmative obligation on the creditor
to act, regardless of the obligor's conduct. By doing so, it does far more than arguably
expand the list of parties who may be liable under § 1641(f)(2); it changes the
substantive obligations of creditors. TILA designed to protect consumers should be
liberally construed. See, e.g., Hauk v. JP Morgan Chase Bank United States, 552 F.3d
1114,(9th Cir. 2009) ("To effectuate TILA's purpose, a court must construe 'the Act's
provisions liberally in favor of the consumer' and require absolute compliance by
creditors."); Rand Corp. v. Yer Song Moua, 559 F.3d 842, 845 (8th Cir. 2009)("TILA
. . . by Congress as a consumer protection act, and its provisions, as well as Regulation
19
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 29 of 42
Z, to be construed broadly in favor of consumers."); Roberts v. Fleet Bank, 342 F.3d 260,
266 (3d Cir. 2003)("As the TILA is a remedial consumer protection statute, . . .
construed liberally in favor of the consumer.") The civil liability provision of TILA was
amended to afford borrowers such as Appellant a private right of action against the
assignee for non compliance with this disclosure obligation.
D. TRANSFERINTO A CLOSED MORTGAGE BACKED SECURITY
TRUST AFTER IT IS CLOSE IS A LEGAL IMPOSSIBILITY AND
IS VOID PURSUANT TO “NEW YORK TRUST LAWS”
Transfer by MERS on behalf of a Non Member into a closed RAST 2007-A5 was
legally impossible. To dismiss the Court must decide whether the facts alleged if true,
would entitle Plaintiff to some formof legal remedy against the Defendant DBNTC. De
La Crux v. Tormey, 582F.2d 45, 48 (1978). To dismiss with prejudice is an abuse by the
Court. The misleading representations: 1) that there was a valid transfer into the Trust
three years after closing dates of the trust; and 2) the inability for MERS to be a nominee
of UAMCC. This would suggest that there are claims for fraudulent transfer which
would be suitable for an amended complaint.
The Court In re Doble 2011 Bankr. LEXIS 1149 (S.D. Cal. April 2011) looked
at this issue of New York Trust Laws and suggested that even though Plaintiff is not a
party to the PSA and does not have standing to interfere with trust administration, he
does have standing to challenge DBNTC s and in determining if the assignment is valid
under New York Trust Laws (Trust Governing Documents). The difference in Doble
compared to Appellant s case was inadequate legal support dealing with the details of
NewYork Trust Laws, and supportive case law. Appellant delivered details to the Court
which was missing in Doble, and overlooked by the Bankruptcy Court.
20
Case: 11-1221 Document: 009187122 Filed: 06/24/2011 Page: 30 of 42
"RAST 2007-A5
41
was formed by Agreement under New York Trust Laws any
Assignment into the Trust over 720 days after Closing would result in an Internal
Revenue Service ( IRS ) prohibited tax transaction for the Real Estate Mortgage
Investment Conduit ( REMIC ). (Ex 13, ER 0229 ) (Ex 13, ER 0278 to ER 0279)
The PSAwas constructed using NewYork Trust Laws. (Ex 13, ER0292) "RAST
2007-A5" was formed on March 1, 2007 by the execution of the Trust Agreements
including the PSA. The Trust's closing date was March 29, 2007. (Ex. 13, ER 0195)
RAST 2007-A5 is a common lawtrust created pursuant to the laws of the State of
NewYork, and its existence and actions are governed and controlled by NewYork Law.
New York Trust Law is ancient and well-settled with respect to the determination of
whether an asset is trust property.
42
In order to have a valid inter vivos gift, there must
be a delivery of the gift (either by a physical delivery of the subject of the gift) or a
constructive or symbolic delivery (such as by an instrument of gift) sufficient to divest
the donor of dominion and control over the property
43
and "what is sufficient to
constitute delivery must be tailored to suit the circumstances of the case.
41
DBNTC is the Trustee of RAST 2007-A5 as admitted in Complaint at ¶43 (Ex 12, ER
0155). The Securities and Exchange documents for RAST 2007-A5 demonstrate that Indymac
Bank FSB (succeeded in interest by Indymac Federal Bank FSB; and Onewest Bank FSB)
served as the Sponsor, Seller, and Servicing Agent of "RAST 2007-A5". (Ex 13, ER 0176)
Certified copies from the Securities and Exchange Commission ("SEC") of the PSA were filed
with Plaintiff's Adversary Complaint and Judicially Noticed. (Ex 13, ER 0169 to ER 0385)
42
Under New York Law, the analysis of whether an asset is trust property is determined
under the law of gifts (See, e.g., In re: Becker, 2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct.
2004) ("In the case of a trust where there is a trustee other than the grantor, transfer will be
governed by the existing rules as to intent and delivery (the elements of a gift).").
43
(Matter of Szabo, 10 N.Y.2d 94, 98-99; Speelman v. Pascal, 10 N.Y.2d 313, 318-320;
Beaver v Beaver, 117 NY 421, 428-429; Matter of Cohn, 187 App. Div. 392, 395) as cited in
Gruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986)
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The deliveryrule requires that "'[the] deliverynecessaryto consummate a gift must
be as perfect as the nature of the property and the circumstances and surroundings of the
parties will reasonably permit. Vincent v. Rix, 248 N.Y. 76, 83; Matter of Van Alstyne,
supra, at p 309; see, Beaver v. Beaver, supra, at p 428) as cited in Gruen v. Gruen, 68
N.Y.2d 48, 56-57 (N.Y. 1986).
44
New York law is also settled that Until the delivery to the trustee is performed
by the settlor, or until the securities are definitely ascertained by the declaration of the
settlor, when he himself is the trustee, no rights of the beneficiary in a trust created
without consideration arise.
45
The delivery necessary to consummate a gift must be as perfect as the nature of the
property and the circumstances and surroundings of the parties will reasonably permit;
there must be a change of dominion and ownership; intention or mere words cannot
supply the place of an actual surrender of control and authority over the thing intended
to be given, Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928)
Lastly, under New York Law there are four essential elements of a valid trust of
personal property: (1) a designated beneficiary; (2) a designated trustee, who must not
be the beneficiary; (3) a fund or other property sufficiently designated or identified to
enable title thereto to pass to the trustee; and (4) the actual delivery of the fund or other
44
New York law is also settled that (1) "Until the delivery to the trustee is performed by
the settlor, or until the securities are definitely ascertained by the declaration of the settlor, when
he himself is the trustee, no rights of the beneficiary in a trust created without consideration
arise", Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz
[Lynde], 105 Misc. 30, aff'd 190 App. Div. 907, supra; Marx v. Marx, 5 Misc. 2d 42) as cited in
Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978) (2).
45
Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz
[Lynde], 105 Misc. 30, aff'd 190 App. Div. 907; Marx v. Marx, 5 Misc. 2d 42) as cited in
Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978) (2).
22
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property, or of a legal assignment thereof to the trustee, with the intention of passing
legal title thereto to himas trustee, Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).
There is no trust under the common law until there is a valid delivery of the asset
in question to the trust. Until the delivery to the trustee is performed by the settlor, or
until the securities are definitely ascertained by the declaration of the settlor, when he
himself is the trustee no rights of the beneficiary in a trust created without consideration
arise.
46
Furthermore, when the trust fails to acquire the property, then there is no trust over
that property that may be enforced. In an action against the individual defendant as
trustee, based on the theory of breach of fiduciary obligation, the complaint was properly
dismissed on the ground that he had acquired no title or separate control of the goods
and, hence, there was no actual trust over the property to breach. Kermani v. Liberty
Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dep't 1957)
According to the terms of the PSA
47
all promissory notes transferred to RAST
2007-A5 are required to have a complete chain of endorsements fromthe original payee
thereof to either Blank or to DBNTC as Trustee for RAST 2007-A5. (Ex 13, ER 0227
to ER0234) Each promissory note is required to have a complete chain of endorsements
and to fully comply within the authorization of the Trust's activities.
Under New York Trust Law, there is no effective transfer of the Plaintiff's DOT
along with the Promissory Note to the RAST 2007-A5, so the Trust would not be able
enforce the note. There is no effective conveyance of Plaintiff's Promissory Note to the
46
( Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz
[Lynde], 105 Misc 30, affd 190 App Div 907, supra; Marx v Marx, 5 Misc 2d 42) as cited in
Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978).
47
PSA refers to the Indymac Residential Asset Securitization Trust 2007-A5 documents
filed with the SEC, and are the governing documents by which Indymac Bank FSB and its
successor servicers and Deutsche Bank are to operate and such is governed by New York Laws.
23
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Defendant Trust, which has claimed ownership in the MFRS. The PSA, Section 2.01
outlines the proper conveyance of the Mortgage Loans. (Ex 13, ER 0227 to ER 0230)
The PSA, Section 2.02 outlines the Trustee's responsibility to confirm that the
proper assignments, endorsements to showa complete chain of title is to be included and
confirmed in writing.
48
(Ex 13, ER 0230 to ER 0230) It is clear that any assignment
done in on either August 10, 2009 (Ex 14, ER 0421) or September 20, 2010 (Ex 14, ER
0424) would not be compliant. Further, PSA Section 2.02 states that if there is any
substitution of the mortgage loan within the first 90 days it would require an "Opinion
of Counsel" indicating that the loan would not create any unfavorable tax implications
due to this Trust being a REMIC. (Ex 13, ER 0229)
No substitution is allowed under any circumstances after 720 days of closing
( March 29, 2007") or in the case at bar after March 29, 2009.
49
The two Assignments
of the purported DOT by MERS would be in contravention to the governing documents.
It appears that there is no trust to enforce over the Subject Property when viewed using
48
Exhibit G-1 (Ex 13, ER 0346 to ER 0347); Form of Initial Certification of Trustee,
Exhibit G-2 (Ex 13, ER 0348 to Er 0349) Form of Delay Delivery Certification; and Exhibit H
(ER 13, ER 0350 to ER 0351) Form of Final Certification of Trustee which specifically states
that the Trustee certifies that it has received all the documents required to convey a complete
chain of title and in accordance with Section 2.02 it has received: (I) The original Mortgage
Note, endorsed in the form provided in Section 2.01(c) of the Pooling and Servicing Agreement,
with all intervening endorsements showing a complete chain of endorsement from the originator
to the Seller.(ii) The original recorded Mortgage. (iii) An executed assignment of the Mortgage in
the form provided in Section 2.01(c) of the Pooling and Servicing Agreement; provided....
showing a complete chain of assignment from the originator to the Seller.
49
The PSA requires this complete chain of endorsements to be in place by the Trust's
closing date or under no circumstances later than 720 days after the Trust's closing date.
Therefore the last possible day to transfer to the Trust within the terms of the Trust agreement
was March 29, 2009. (Ex 13, ER 0229 ) See also: (Ex 13, ER 0278 to ER 0279)
24
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the chosen New York Law. The record would be supportive at least of amendment to
present more details from the present record and ongoing discovery.
E. THE COURT ERRED IN DISMISSING QUIET TITLE.
The DOT shows the original lien holder as Universal American Mortgage
Company of California (hereinafter "UMACC"), and the two assignments of the DOT
have not changed this because of their inconsistency. The beneficiary has an implied
duty to correct the public record, personally or by directing the DOT trustee to act. The
meaning of the rule is not that the security interest follows holder status of the note. It
follows ownership of the note or the loan, of which the note is evidence. Cal. Comm.
Code §3817 (Transfer of secured contract). This means that the security interest follows
ownership of the loan of which the Note is merely evidence.
The security interest does not extend to the "holder" of the Note, unless the holder
is also the owner and as discussed fully in the recent BAP opinion.
50
California provides
a means by statute to obtain Quiet Title by action against any party including any
purported mortgagees, whereby one can have title decreed to be partially or completely
free and clear of liens and to obtain a permanent injunction against parties claiming to
hold a borrower's mortgage obligation. See Cal. Civ. P. 760.010 et. seq.
A DOT that secures nothing is a cloud on title that Plaintiff seeks to be removed
by quiet title. If there is a cloud on title, a party does not have to wait until harmed to
protect their interest. The quiet title action challenges the rights alleged to be possessed
by DBNTC, the party claiming to be the owner of the Note and loan secured by the DOT
that has judicially been determined to be unenforceable or at least does not provide a
colorable interest.
50
In re Veal, 9th Circuit BAP Nos. AZ-10-1055, az 10-1056, (June 10, 2011)
25
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The issue of quiet title to the Subject Property involves the security interest that
would only be held by DBNTC if it owns the loan. Such proof of a proper chain of
endorsements and moneytransfers related to the Note would be required bylawful rights.
The same would be true as to proof of whether Plaintiff is at all indebted to DBNTC,
which likely involves the same inquiries, and Debtor seeks a declaration not only that
Deutsche Bank has no security interest, and that nothing is owed when the proper chain
of title does not exist as determined by the Massachusetts Supreme Court when
presented with similar issues.
51
A Movant must have both constitutional and prudential standing and be the real
party in interest under Fed. R. Civ. P. 17, in order to be entitled to lift-stay relief [citing:
Kowalski v. Tesmer, 543 U.S. 125, 128-29 (2004) (quoting Warth v. Seldin, 422 U.S.
490, 498 (1975)]. Constitutional standing under Article III requires, at a minimum, that
a party must have suffered some actual or threatened injury as a result of the defendant's
conduct, that the injury be traced to the challenged action, and that it is likely to be
redressed by a favorable decision. Valley Forge Christian Coll. V. Am. United for
Separation of Church and State, 454 U.S. 464, 472 (1982).
Beyond the Article III requirements of injuryin fact, causation, and redress ability,
Movant must also have prudential standing, which is a judicially-created set of
principles that places limits on the class of persons who may invoke the courts' powers.
See Warth v. Seldin, 422 U.S. 490, 499 (1975). As a prudential matter, a plaintiff must
assert "his own legal interest as the real party in interest," Dunmore v. United States, 358
F.3rd 1107, 1112 (9th Cir. 2004), as found in Fed. R. Civ. P. 17, which provides "an
action must be prosecuted in the name of the real party in interest."
51
US Bank National Association, Trustee vs. Antonia Ibanez, and a consolidated case for
ABFC 2005-OPT1 Trust, ABFC Asset Backed Certificates, Series 2005-OPT1; In re Kang Jin
Hwang, 396 B.R. 757, 768 (Bankr. C.D. Cal. 2008)
26
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In the case at bar Onewest as purported servicer did join in the purported real party in
interest DBNTC after Appellant s Objection to the First MFRS.
The Court made findings of facts that DBNTC was not the real party in interest
and they lack standing. Other Courts have ruled on these issues. See In re Canellas,
2010 WL 571808 (Bankr. M.D. Fla. Feb 9, 2010) (Motion for Relief from stay denied
after movant produced no evidence of ownership of note); See also In re Lee, 2009 WL
1917010 (Bankr. C.D. Cal, Jan. 26, 2009)(sanctioning attorney who pursued stay relief
motion knowing named party lacked ownership interest in note); See also In re Fitch,
2009 WL 1514501 (Bankr. N.D. Ohio May 28, 2009)(movant never in chain of title for
mortgage and note; had no standing); See also: In re Maisel, 378 B.R. 19 (Bankr. D.
Mass. 2007) (servicer bringing stay relief motion failed to document standing as of time
motion filed); See also In re Urdahl, 07-07227-PB7 (Bankr. S.D. Cal. June 9,
2008)(finding Deutsche Bank failed to provide evidence that it has a security interest in
the property; motion for stay relief denied). The Court is referred to an Unpublished
Memorandum Opinion issued by the BAP of the 9th Circuit, reflecting its Decision
regarding MFRS standing issues in the Central District of California.
52
F. “THE DOCTRINES OF RES JUDICATA,
COLLATERAL ESTOPPEL, AND LACHES.”
The doc-trine of res judicata includes two distinct types of preclusion, claim
preclusion and issue preclusion . Claimpreclusion "treats a judgment, once rendered,
as the full measure of relief to be accorded between the same parties on the same 'claim'.
Kaspar Wire Works, Inc. v. Leco Eng'g & Mach., Inc., 575 F.2d 530, 535 (5th Cir.
52
In re Fawn Ridge Partners, LP, BAP No. CC-09-1396-HPD (March 29, 2010), a case
wherein the Movant bank had failed to demonstrate any standing to seek stay relief. Therein, the
Panel observed that "Movant is not the payee on the Note securing the Deed of Trust nor a
beneficiary under the Deed of Trust." [See: at 10]. Citing In re Wilhelm, supra, the Panel again
noted that a "party seeking stay relief must establish standing and be a party in interest." Ibid at 8.
27
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1978); see also McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986). Claim
preclusion "prevents litigation of all grounds for, or defenses to, recovery that were
previously available to the parties, regardless of whether they were asserted or
determined in the prior proceeding." Brown v. Felsen, 442 U.S. 127, 131, 60 L. Ed. 2d
767, 99 S. Ct. 2205 (1979), quoted in Americana Fabrics, Inc. v. L & L Textiles, Inc.,
754 F.2d 1524, 1529 (9th Cir. 1985), and as stated in Katchen v. Landy, 382 U.S. 323
(1966).
53
The doctrine of issue preclusion prevents relitigation of all issues of fact or law
that were actually litigated and necessarily decided in a prior proceeding. In both the
offensive and defensive use situations the partyagainst whomestoppel (issue preclusion)
is asserted has litigated and lost in an earlier action. The issue must have been actually
decided after a full and fair opportunity for litigation.
54
The Court observed that
offensive issue preclusion allows potential plaintiffs to benefit by waiting on the
sidelines rather than joining in the first litigation. This is true because an interested
observer will be able to rely on a judgment favorable to his interests against the
defendant and yet not be bound by that judgment if the defendant wins. The potential
for this abuse exists in a case such as the present one.
Under the doctrine of res judicata a final judgment on the merits bars further
claims by parties or privities based on the same cause of action. Montana v. United
53
The normal rules of res judicata and collateral estoppel apply to the decisions of
bankruptcy courts. More specifically, a creditor who offers a proof of claim and demands its
allowance is bound by what is judicially determined; and if his claim is rejected, its validity may
not be re-litigated in another proceeding on the claim
54
Robi v. Five Platters, 838 F.2d 318; 1988 U.S. App. LEXIS 970; 5 U.S.P.Q.2D (BNA)
1709 In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979),
the Supreme Court outlined some potential hazards that could arise if offensive issue preclusion
were applied under inappropriate circumstances.
28
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States, 440 U.S. 147. Collateral Estoppel and laches also apply as the parties and the
issues are the same. The determination made with findings of fact as an appealable
decision, and Deutsche Bank sat complacently while watching from the sidelines.
G. THIS CASE IS ABOUT A DEFECT IN TITLE AND STANDING,
AND THE EVIDENCE WAS IGNORED.
The issue is not whether the Plaintiff is in default. (Ex 46, ER0974, Line 4 to ER
0981, Line 6) The issue is whether DBNTC who is not the original lender has the legal
right to seek the remedy of foreclosure by holding the proper chain of title of the
Assignment of the DOT along with the properly held and endorsed Note.
55
See In re
Veal, 9th Circuit BAP Nos. AZ-10-1055, AZ 10-1056, (June 10, 2011)
DBNTC bases their ability to foreclose the Trust Deed exclusively on two
different alleged Assignments of DOT along with the Note by the authority of "MERS"
as a Nominee of a non member UAMCC. MERS may not be the agent of many
principles at the same time and certainly not the non member UAMCC. DBNTC is
attempting to use purported grant of authority to MERS under the DOTalone to have the
authority to transfer the Note. There is absolutely no language in the Note transferring
the Note to MERS; no assignment from the original lender transferring the Note to
MERS; and where MERS cannot as a matter of law, be either the "beneficiary" under the
DOT or undertake any action to further a foreclosure.
56
55
the Court discusses the issues of Constitutional Standing, Prudential Standing, the real
party in interest issue, the relationship of both Articles 3 and 9 of the Uniform Commercial Code
to the sale and transfer of mortgage notes, and then brings all of these theories together under the
central concept of who is the "person entitled to enforce the note."
56
Other states that have rejected MERS' offer of an alternative to the public recording
system. See: In re Agard, No. 10-77338-reg, 2011 Bankr. LEXIS 488, at *58-*59 (Bankr.
E.D.N.Y. Feb. 10, 2011); See also: In re McCoy, No. 10-63814-fra13, 2011 Bankr. LEXIS 534,
at *10 (Bankr. Or. Feb. 7, 2011); See also: MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010); See
29
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CONCLUSION
This Appeal is about the Judge s abuse of discretion and clear error in findings of
facts that were contrary to the evidence on the record and conclusions of law based on
facts not in evidence. Clearly Onewest and Onewest agent for DBNTCfailed to provide
any admissible evidence in their MFRS establishing that it had even a "Colorable"
interest in the underlying promissory note or the two Assignments of the DOT including
the rights to seek relief from the automatic stay thereunder. Furthermore there was no
different documents produced to enhance their position in the Adversary Procedure.
There was no proof of claim or appeal of the final Judgment denying their motion for
relief from the automatic stay. Appellant requests this court to find that DBNTC acted
in privity with agent Onewest, reverse the Denial of Plaintiff s MJOP, with prejudice,
and find in Appellant s favor or remand to the bankruptcy court for further discovery and
amendment.
Submitted on June 23, 2011
______________________________
John Bauer, Esq.( Bar No. 91471)
Diane Beall, Esq.(Bar No. 86877)
Gary Harre, Esq. (Bar No. 86938)
also: LaSalle Bank Nat'l Ass'n v. Lamy, No. 030049/2005, 2006 NY Slip Op 51534U, slip op. 2
(N.Y. Sup. Ct. 2006).
30
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Gary Harre, ESQ. (Bar No. 86938)
Diane Beall, ESQ. (Bar No. 86877)
John H. Bauer ESQ. (Bar No. 91471)
8700 Warner Avenue, Suite 200
Fountain Valley, CA 92708
Phone: (714) 907-4182
Fax: (714) 907-4175
Email: ghcmecf@gmail.com
Attorney for Appellant,
Brian W Davies
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re:
BRIAN W DAVIES,
Debtor.
_______________________________
BRIAN W DAVIES,
Plaintiff,
vs.
DEUTSCHE BANK NATIONAL
TRUST COMPANY AS TRUSTEE
OF THE RESIDENTIAL ASSET
SECUITIZATION TRUST 2007-A5,
MORTGAGE PASS THROUGH
SERIES 2007-E, UNDER THE
POOLING AND SERVICING
AGREEMENT DATED MARCH 1,
2007, ITS ASSIGNS AND/OR
SUCCESSORS IN INTEREST; et. al.;
Defendants.
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Chapter 7
Bk Case No. 6:10-bk-37900
Ap Case No. 6:11-ap-01001
Bap Case No. CC-11-1221
APPELLANT’S
OPENINGBRIEF
[CERTIFICATE OF SERVICE]
Attorneys for the Appellant, Brian W Davies
John H. Bauer (Bar No. 91471)
Diane Beall (Bar No. 86877)
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Gary Harre (Bar No. 86938)
8700 Warner Avenue, Suite 200
Fountain Valley, CA 92708
Phone: (714) 907-4182
Attorneys for the Appellee
DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee of the
Residential Asset Securitization Trust 2007-A5, Mortgage Pass Through Series
2007-E, under the Pooling and Servicing Agreement Dated March 1, 2007.
Andrew E. Miller (Bar No. 213504)
Loraine L Pedowitz (Bar No. 120614)
Sarina Saluja (Bar No. 253781)
515 South Figueroa Street, Ninth Floor
Los Angeles, California 90071-3309
I, Gary Harre, declare as follows:
I am a citizen of the United States of America, over the age of 18 years and not a
party to the within action. My business address is 8700 Warner Avenue Fountain
Valley, California 92708. On this date, I caused to be served the following:
APPELLANT'S OPENING BRIEF
by mailing a true and correct copy of the above-mentioned documents with postage
fully pre-paid, addressed to:
Executed this 24th day of June 2011, at Fountain Valley, California 92708.
Dated: June 24, 2011
_________________________
DIANE BEALL, ESQ.
GARY HARRE, ESQ.
JOHN H. BAUER
Attorneys for BRIAN W DAVIES
Appellant
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Appellant Brian W. Davies Request For Judicial Notice #1
GLOBAL CAPITAL LAW, PC
GARRY HARRE, ESQ. (86938)
DIANE BEALL (86877)
8700 WARNER AVE., STE #200
FOUNTAIN VALLEY, CA 92708
PHONE: (714)-907-4182
FAX (714)-907-4175
ghcmecf@gmail.com
Attorney for Appellant, Brian W. Davies
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
Chapter 7
Bk Case No. 6:10-37900-SC
Ap Case No. 6:11-01001-SC
Bap Case No. CC-11-1221
In re:
BRIAN W. DAVIES,
Debtor,
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BRIAN W. DAVIES, an Individual.
Plaintiff and Appellant,
-vs.-
DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE OF
THE RESIDENTIAL ASSET
SECURITIZATION TRUST 2007-A5,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-E,
UNDER THE POOLING AND
SERVICING AGREEMENT DATED
March 1, 2007, ITS ASSIGNS AND/OR
SUCCESSORS IN INTEREST; et. al.;
Defendants.
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APPELLANT BRIAN W. DAVIES’
REQUEST FORJUDICIAL NOTICE
#1 (RJN #1)
11 U.S.C. § 107(a)
Fed. Rules of Evidence, Rule 201
//
//
1
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Appellant Brian W. Davies Request For Judicial Notice #1
Appellant, Brian W. Davies, through his Attorney requests the Appellate Court
to take Judicial Notice of four Bankruptcy Cases filed in the Ninth Circuit and
pursuant Federal Rules of Evidence, Rule 201. The Appellate Court may take
Judicial Notice of Bankruptcy Cases pursuant to 11 U.S.C.S. § 107(a) which states
that a paper filed in a case under the bankruptcy code and the dockets of a
Bankruptcy Court are public record.
These four Ninth Circuit Bankruptcy Cases involve Movant Onewest Bank
FSB, as servicing agent for DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee Of The Residential Asset Securitization Trust 2007-A5, Mortgage Pass-
Through Certificates, Series 2007-E, Under The Pooling And Servicing Agreement
Dated March 1, 2007(hereinafter “RAST 2007-A5”).
This is important in the case at bar whereby the question of agency
relationship with Onewest Bank and Deutsche Bank National Trust Company are at
issue.
Importantly these sample cases are selected only for the Specific Trust
(“RAST 2007-A5”) from which Appellant’s Promissory Note along with the Deed of
Trust were purported to be transferred pursuant to the Pooling and Servicing
Agreement which has been attached to the “Appellant’s Appendix” as Appendix
Exhibit #13.
The various cases are collected from random sampling on Pacer, and are only
the tip of the “Iceberg”.
Appellant submits:
A true and correct copy of Central District of California Case Number 6:09-
bk-27875-MJ, of the Motion for Relief from Automatic Stay filed on 02/12/2010
and the Order Denying the Motion for Relief from Automatic Stay entered on May
17, 2010 attached as Exhibit #1.
A true and correct copy of Central District of California Case Number 2:09-
bk-27875-ER, of the Motion for Relief from Automatic Stay filed on 12/01/2009
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Appellant Brian W. Davies Request For Judicial Notice #1
and the Order Denying the Motion for Relief from Automatic Stay entered on
1/19/2010 attached as Exhibit #2.
A true and correct copy of Southern District of California Case Number 09-
15455-LA7, of the Motion for Relief from Automatic Stay filed on 12/03/2009
attached as Exhibit #3.
A true and correct copy of Northern District of California Case Number 09-
58807 W, of the Motion for Relief from Automatic Stay filed on 11/12/2009
attached as Exhibit #4.
The Cases are selected as a sampling, and to illustrate the relationships of the
parties Onewest Bank FSB, and Appellee Deutsche Bank National Trust Company
which occur throughout the Bankruptcy Courts in this Country.
Wherefore the Plaintiff Debtor respectfully requests the aforementioned
Documents to be Judicially Noticed.
Respectfully Submitted,
June 3, 2011
_____________________________________
GARRY HARRE, ESQ.
Attorney for Appellant, BRIAN W. DAVIES
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PROOF OF SERVICE OF DOCUMENT
I am over the age of 18 and not a party to this bankruptcy case or adversary
proceeding. My business address is: 8700 Warner Avenue, Fountain Valley,
California 92708
A true and correct copy of the foregoing document described as Appellant Brian
W. Davies’ Request for Judicial Notice #1 will be served or was served in the
form and manner required by LBR 5005-2(d); and (b) in the manner indicated
below:
I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC
FILING ("NEF") - Pursuant to controlling General Order(s) and Local
Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court
via NEF and hyperlink to the document. Appellant Brian W. Davies’ Request
for Judicial Notice #1 I checked the CM/ECF docket for this bankruptcy case or
adversary proceeding and determined that the following person(s) are on the
Electronic Mail Notice List to receive NEF transmission at the email address(es)
indicated below:
Gary L Harre ghcmecf@gmail.com
Andrew E Milleramiller@allenmatkins.com
Loraine L Pedowitz lpedowitz@allenmatkins.com
United States Trustee (RS) ustpregion16.rs.ecf@usdoj.gov
OR EMAIL (indicate method for each person or entity served): Pursuant to
F.R.Civ.P. 5 and/or controlling LBR, on June 3, 2011, I served the following
person(s) and/or entity(ies) by personal delivery, or (for those who consented in
writing to such service method), by facsimile transmission and/or email as
follows. Listing the judge here constitutes a declaration that personal delivery on
the judge will be completed no later than 24 hours after the document is filed.
Bankruptcy Appellate Court
I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
June 3, 2011 Emily Khem /s/ Emily Khem
Date Type Name Signature
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I herebv certiIv that I eIectronicaIIv IiIed the Ioregoing with the CIerk oI the Court Ior the
United States Court oI AppeaIs Ior the Ninth Circuit bv using the appeIIate CM/ECF svstem
on (date) .
I certiIv that aII participants in the case are registered CM/ECF users and that service wiII be
accompIished bv the appeIIate CM/ECF svstem.
CERTIFICATE OF SERVICE
When AII Case Participants are Registered Ior the AppeIIate CM/ECF Svstem
I herebv certiIv that I eIectronicaIIv IiIed the Ioregoing with the CIerk oI the Court Ior the
United States Court oI AppeaIs Ior the Ninth Circuit bv using the appeIIate CM/ECF svstem
on (date) .
Participants in the case who are registered CM/ECF users wiII be served bv the appeIIate
CM/ECF svstem.
I Iurther certiIv that some oI the participants in the case are not registered CM/ECF users. I
have maiIed the Ioregoing document bv First-CIass MaiI, postage prepaid, or have dispatched it
to a third partv commerciaI carrier Ior deIiverv within 3 caIendar davs to the IoIIowing
non-CM/ECF participants:
Signature (use "s/" Iormat)
CERTIFICATE OF SERVICE
When Not AII Case Participants are Registered Ior the AppeIIate CM/ECF Svstem
9th Circuit Case Number(s)
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Signature (use "s/" Iormat)
To secure vour input, vou shouId print the IiIIed-in Iorm to PDF (FiIe > Print > PDF PrinterCreator#'
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Andrew E. Miller (Bar No. 213504)
Loraine L Pedowitz (Bar No. 120614)
Sarina Saluja (Bar No. 253781)
Allen Matkins Leck Gamble Mallory & Natsis LLP
515 South Figueroa Street, Ninth Floor
Los Angeles, California 90071-3309
CC-11-1221 Davies v. Deutsche Bank National Trust Co.
June 3, 2011
June 3, 2011
/s/ Emily Khem
Case: 11-1221 Document: 009184275 Filed: 06/03/2011 Page: 59 of 59

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