DAVIES OPENING APPEAL BRIEF - CALIFORNIA BANKRUPTCY COURT - NINTH -JUNE 2011

8/6/2019 DAVIES OPENING APPEAL BRIEF - CALIFORNIA BANKRUPTCY COURT - NINTH -JUNE 2011

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IN THE BANKRUPTCY APPELLATE PANEL

FOR THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Bankruptcy Appellate Panel Case No. CC-11-1221Bankruptcy 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,

APPELLANTS OPENING BRIEF

Diane Beall (SBN 86877)John H. Bauer (SBN 91471)

Gary Harre (SBN 86938)8700 Warner Ave., Suite 200Fountain Valley, CA 92708Telephone: (714) 907-4182Facsimile: (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).............................27In 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 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) forpurposes 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 actualcontroversy within its jurisdiction ..interested party seeking such

declaration, whether or not further relief is or could be sought

5) New York Trust Laws: a common law trust created pursuant to the laws of theState 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 anyremedy, provisional ..., provided by law for the benefit of any party to suchaction, 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 fordeclaratory 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 andaffect 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 laterthan 30 days after the date on which a mortgage loan is sold or otherwise

transferred ......including (A) the identity...new creditor; (B) the date oftransfer; (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 9th 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 Bankruptcy Court 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 thatDavies' 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

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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 designatethat the loan on his primary residence

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 MJOP or Alternatively, Summary Adjudication against DBNTCwith 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 from the bankruptcy court pursuant to

28 U.S.C. 158(a)(1), because this appeal is taken from final orders issued by the

bankruptcy judge granting Defendants MJOP and denying the Appellant s MJOP with

prejudicewhich effectivelydismissed Appellant s AdversaryComplaint with prejudice.

See In re Natl Environ. Waste Corp., 129 F.3d 1052, 1054 (9th Cir. 1997) (citingIn 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 Courthouse3420 Twelfth Street

Riverside California 92501

1in the United States Bankruptcy Court for the Central District of California RiversideDivision ("the "Bankruptcy Court")

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STANDARD OF APPELLATE REVIEW

The Appellate Court may review for abuse of discretion pursuant to Federal

Rule of Bankruptcy Procedure 8013. In the 9th 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 (9th Cir. 1991); In re Lee, 179 B.R. 149,

155 (Bankr. 9th Cir. 1995) The abuse of a discretion test involves two distinct

determinations: first, whether thecourt applied thecorrect 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 itsdiscretion." 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 COURT DENIED ONEWEST AS AGENT FOR DBNTC MFRS

The Appellant challenges Deutsche Bank National Trust Company s

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(hereinafter DBNTC ) 2 status as a secured creditor. DBNTC failed 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 ) fileda 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, ER 0058). These

were part of the consolidated record reviewed by the Honorable Thomas B. Donovan.

The Court s Order Denying the MFRS was 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 ServicingAgreement 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 thedeclarations and the proffered documents described as "Assignment of the Deed of Trust"(hereinafter "DOT") lack credibility. (Ex 9, ER 0124 to ER 0129)

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of the Promissory Note (and DOT) as outline in the RAST 2007-A5 Pooling &

Servicing Agreement ( PSA ). 4 No new supportive 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. THE COURT ERRED IN GRANTING DEUTSCHEBANK'S MJOP AND

DENYING APPELLANTS MJOP WITH PREJUDICE AND ERROR IN

LAW IN DENYING CLAIMS

The Panel should find that the Bankruptcy Court abused its discretion ingranting DBNTC s Judgment on the 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 toER 0235)

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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 Company of 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, ER 0418 to ER 0420) Subsequently on August 20, 2009, a purported Assignment

of DOT to DBNTC was recorded. (Ex 14, ER 0421) Then on October 16, 2009, aSubstitution 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, ER 0424) 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&ONEWEST AGENT DBNTCDENIEDMFRS.

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, ER0400 to ER 0417).

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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 DBNTC and to determine the validity of any

lien or claims of DBNTC. (Ex 12, ER 0146 to ER 0168) 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 February 4, 2011, DBNTC answered 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 asthe formation documents creating RAST 2007-A5, including the Pooling and ServicingAgreement (hereinafter "PSA"). (Ex 13, ER 0170 to ER 0385)

8 On February 2, 2011 reassignment was done by administrative order from theHonorable Thomas B. Donovan to the Honorable Scott C. Clarkson.

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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 ER 0873) Memorandum of

Opinion. (Ex 37, ER 0873 to ER 0884) Plaintiff's Motion was Denied with

prejudice (Ex 38, ER 0885 to ER 0889) Memorandum of 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 samerecords as RJN #2 excepting the Second Assignment of the Deed of Trust, and adding a Noticeof Sale.

10 The filing by Plaintiff was Motion for Judgment on the Pleadings or alternativelySummary Adjudication and Judgment against Deutsche Bank (hereinafter MJOP )

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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. THE PSA, DBNTC BANKRUPTCY SUBPOENA RESPONSE, MERS

SUBPOENA, THE MERS' AUDIT TRAIL AND THE LAND TITLE RECORDS

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, ER 0387 to ER 0425); 3) RJN #3, Bankruptcy Subpoena MERS

12 (Ex 16, ER0444 to ER 0461); 4) RJN # 4, Bankruptcy Subpoena DBNTC 13 (Ex

18, ER 0468 to ER 0528); 5) RJN #514

(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 2nd promissory notes including the Transfer of Servicing

( TOS ) and Transfer of Beneficiary ( TOB ). Document is listed from current to past forreference.

13 Deutsche National Bank as Trustee of the Indymac Residential Asset SecuritizationTrust 2007-A5, Mortgage Pass-Through Series 2007-E, under the Pooling and ServicingAgreement 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

16Additionally it should be noted that to pursue the Davies Adversary, Appellant Davieswith 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 0141to ER 0145)

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ARGUMENT

Appellant s Adversary MJOP was Denied with prejudice, and DBNTC s MJOP

was granted. The Record indicates that Onewest acted as the agent of DBNTC in 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 from the 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 rudimentary elements

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 islegitimate and that may reasonably be asserted given the facts presented and the current law (or areasonable and logical extension thereof).

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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 essentiallydetermined from the court s record that DBNTC has 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,

NOR SUPPLY ANY ADDITIONAL DISCOVERY DOCUMENTS.

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) andsubmitted 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 thedeed of trust was assigned without the note, then the assignee, "having no interest in theunderlying debt or obligation, has a worthless piece of paper."

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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. THE DONOVAN COURT DETERMINED THE ASSIGNED DOT

TO BE INEFFECTIVE.

Since the assignment of the DOT was 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 agencyRelationship 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 onthe 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 isincorporated here. (Ex 2, ER 0044, Line 10 to ER 0046, line 23) and (Ex 5, ER 0103, Line 1, toER 0108, Line 2).

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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 PROCEEDING MAY BE INITIATED TO DETERMINE THE

VALIDITY, PRIORITY, OR EXTENT OF A LIEN OR OTHER INTEREST IN

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 adversaryproceeding 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

bankruptcy cases involving RAST 2007-A5 suggest that Onewest is DBNTC s Agent.

26 Plaintiff filed his Adversary for Declaratory Relief and to Determine the Validity ofthe Secured Claims proffered by Onewest individually and Onewest as Agent for DBNTC underF.R.C.P. 7001and 11 U.S.C. 506.

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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

DECLARATORY RELIEFANDTO DETERMINE THE VALIDITY,

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) Asto 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 OnewestBank 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 anyinterested party seeking such declaration, whether or not further relief is or could be sought.

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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 (9th

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 notcredible, 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 DOT along with the note

to DBNTC was done by MERS as Nominee of Universal American Mortgage Company

of California, a California Corporation (hereinafter UAMCC ) and submitted for theMFRS.(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)

A Second 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 toPlaintiff's reply DBNTC's Opposition MJOP. (Ex 27, ER 0744 to ER 0754)

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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 DBNTC represents that by an undated

allonge UAMCC (Not UAM) endorsed without recourse to Opteum Financial Services

an entity which went out of business in June 2007. Such documents would appear toviolate the holdings of Pribus v. Bush, 118 Cal App. 3d 1003 (1981). See (Ex 2,

ER0044 to ER 0048) See also: (Ex 5, ER 0105, Line 3 to ER 0108, 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, ER0480) 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); Inre 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

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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, DBNTC is not a holder in due course if it does not havepossession 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 theproceedings. 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 rejectingbuilder-originated loans as too shaky and likely "Homebuilders were getting sloppy, and WallStreet 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. (Ex16, ER 0450)

37 valid foreclosure under California law requires both that the foreclosing party beentitled to "payment of the secured debt" and that its "status as foreclosing beneficiary appearbefore the sale in the public record title for the [p]roperty.").

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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 thedebtor's status in bankruptcy, and res judicata between the actual parties and the

proceeding to all the facts and subsidiary questions of law on 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 securedobligation ). 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 asagent 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, atpara. 3.03[7][d][iii] n.213; R. Levin, Bankruptcy Appeals, N.C.L. Rev. 967, 985 & n.140 (1980).

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C. STATUTORY DAMAGES ARE SUFFICIENT EVEN IN THE

ABSENCE OF ACTUAL DAMAGES

The Court erred in requiring Plaintiff to show that 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 recorded in the Riverside County Land 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

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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. TRANSFER INTO 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 form of 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

New York Trust Laws, and supportive case law. Appellant delivered details to the Court

which was missing in Doble, and overlooked by the Bankruptcy Court.

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"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 PSA was constructed using New York Trust Laws. (Ex 13, ER 0292) "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 law trust created pursuant to the laws of the State of

New York, and its existence and actions are governed and controlled by New York Law.

New York Trust Law is ancient and well-settled with respect to the determination ofwhether 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 IndymacBank 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 filedwith 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 begoverned 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 inGruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986)

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Thedelivery rule requires that "'[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. 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 theproperty 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, whenhe 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 inSussman 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 inSussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978) (2).

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property, or of a legal assignment thereof to the trustee, with the intention of passing

legal title thereto to him as 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 properlydismissed 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 from the original payee

thereof to either Blank or to DBNTC as Trustee for RAST 2007-A5. (Ex 13, ER 0227

to ER 0234) 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 inSussman 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 documentsfiled with the SEC, and are the governing documents by which Indymac Bank FSB and itssuccessor servicers and Deutsche Bank are to operate and such is governed by New York Laws.

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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 show a 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 statesthat 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 MortgageNote, 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 inthe 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'sclosing 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 agreementwas March 29, 2009. (Ex 13, ER 0229 ) See also: (Ex 13, ER 0278 to ER 0279)

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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 followsownership 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 tohold 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)

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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 money transfers related to the Note would be required by lawful 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 injury in 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 JinHwang, 396 B.R. 757, 768 (Bankr. C.D. Cal. 2008)

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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 . Claim preclusion "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 casewherein 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 abeneficiary under the Deed of Trust." [See: at 10]. Citing In re Wilhelm, supra, the Panel againnoted that a "party seeking stay relief must establish standing and be a party in interest." Ibid at 8.

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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 party against whom estoppel (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 itsallowance 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 preclusionwere applied under inappropriate circumstances.

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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, ER 0974, 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 DOT alone to have the

authority to transfer the Note. There is absolutely no language in the Note transferringthe 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 Codeto 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

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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 DBNTC failed 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 actedin 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).

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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 200Fountain Valley, CA 92708Phone: (714) 907-4182

Fax: (714) 907-4175Email: [email protected]

Attorney for Appellant,Brian W Davies

UNITED STATES BANKRUPTCY APPELLATE PANELOF THE NINTH CIRCUIT

In re:BRIAN W DAVIES,

Debtor._______________________________

BRIAN W DAVIES,Plaintiff,

vs.DEUTSCHE BANK NATIONAL

TRUST COMPANY AS TRUSTEEOF THE RESIDENTIAL ASSETSECUITIZATION TRUST 2007-A5,MORTGAGE PASS THROUGHSERIES 2007-E, UNDER THEPOOLING AND SERVICINGAGREEMENT DATED MARCH 1,2007, ITS ASSIGNS AND/ORSUCCESSORS IN INTEREST; et. al.;

Defendants.

)))))))))

)))))))))))))

)

Chapter 7

Bk Case No. 6:10-bk-37900

Ap Case No. 6:11-ap-01001

Bap Case No. CC-11-1221

APPELLANTS

OPENING BRIEF

[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 200Fountain Valley, CA 92708

Phone: (714) 907-4182

Attorneys for the Appellee

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee of theResidential 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 FloorLos 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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