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Case 6:11-ap-01001-SC Doc 25 Filed 04/19/11 Entered 04/19/11 12:34:30 Desc

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GLOBAL CAPITAL LAW, PC


1 Gary Harre, Esq. (Bar No. 86938)
2 Diane Beall, Esq. (Bar No. 86877)
8700 Warner Ave., Suite 200
3 Fountain Valley, CA 92708
4 Phone: (714) 907-4182
Fax: (714) 907-4175
5 Email: ghcmecf@gmail.com
6 Attorneys for Plaintiff, Brian W Davies
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8 UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
9
RIVERSIDE DIVISION
10
11 In re: ) Chapter 7
)
12 BRIAN W DAVIES, ) BK No. 6:10-bk-37900-SC
13 )
Debtor. ) AP No. 6:11-ap-01001-SC
14 _______________________________ )
BRIAN W DAVIES, )
15 ) PLAINTIFF’S OPPOSITION TO
16 Plaintiff, ) MOTION FOR JUDGMENT ON THE
) PLEADINGS FROM DEFENDANT
17 vs. ) DEUTSCHE BANK NATIONAL TRUST
) COMPANY.
18
DEUTSCHE BANK NATIONAL TRUST )
19 COMPANY AS TRUSTEE OF THE ) [ Filed concurrently with Plaintiff’s
RESIDENTIAL ASSET ) objection to Defendant’s RJN #6]
20 SECUITIZATION TRUST 2007-A5, )
21 MORTGAGE PASS THROUGH ) Date: May 3, 2011
SERIES 2007-E, UNDER THE ) Time: 1:30 pm
22 POOLING AND SERVICING ) Dept: ROOM 5C (Santa Ana)
AGREEMENT DATED MARCH 1, ) Judge: Hon. Scott C. Clarkson
23 2007; et.al. )
24 )
Defendants. )
25 )
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_________________________________________________________________________________________
PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT
DEUTSCHE BANK NATIONAL TRUST COMPANY.
Case 6:11-ap-01001-SC Doc 25 Filed 04/19/11 Entered 04/19/11 12:34:30 Desc
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1 Plaintiff Brian W. Davies, by and through his attorneys of record, respectfully objects to
2 Deutsche Bank National Trust Company’s Motion for Judgment on the Pleadings. This motion is
3 just a re-litigation of previous judicial findings that Deutsche Bank National Trust Company
4 (hereinafter “DBNTC”) has no legal standing in the subject mortgage. Furthermore, DBNTC is
5 introducing evidence in support of this motion that it did not produced in prior judicial proceeding
6 and withheld such evidence under discovery order and subpoena duces tecum.
7 I.
8 DBNTC’S ARGUMENT IN ITS MOTION FOR JUDGMENT ON THE PLEADINGS
9 IS NO MORE THAN AN ATTEMPT TO RE-LITIGATE PRIOR PROCEEDING.
10 DBNTC, in its unsupported rambling, conclusory and false representation, never once
11 mentioned the prior proceeding brought by its agent, Onewest Bank, as its corporate alter ego.
12 Plaintiff’s complaint clearly placed the outcome of such judicial proceeding at issue that operates
13 as both judicial and collateral estoppels in support of his causes of action.
14 DBNTC, though its agent, essentially relied on same the evidence and argument in this
15 proceeding to support its Motion for Relief from the Automatic Stay. DBNTC’s interest in the
16 property has been adjudicated before the Hon. Thomas Donovan and has been determined that

17 DBNTC has no interest. In an attempt to circumvent and misuse of legal process, DBNTC styled

18 its motion as “Motion for Judgment on the Pleadings”, when in fact, it is a motion to dismiss.

19 A. First and Second Cause of Action Reliefs are Based on Finding of Facts

20 In Prior Proceeding.

21 As part of Plaintiff’s Bankruptcy Case No. 6:10-bk-37900-TD, DBNTC status as a secured

22 creditor has been determined in that DBNTC has no legal standing based on the chain of title

23 evidence submitted and considered by this Court. Plaintiff’s adversary proceeding first and second

24 cause of action essentially seeks a judicial judgment confirming such previous findings. There was

25 more than ample finding of facts by previous court to support Plaintiff’s request for relief in the

26 first and second cause of action without re-pleading facts that has been adjudicated.

27 /././

28 /././

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_________________________________________________________________________________________
PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT
DEUTSCHE BANK NATIONAL TRUST COMPANY.
Case 6:11-ap-01001-SC Doc 25 Filed 04/19/11 Entered 04/19/11 12:34:30 Desc
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1 Using Defendant’s own authorities, facts in support of Plaintiff’s first and second cause of
2 action need not to be proven because they have been adjudicated and determined based on find of
3 facts that DBNTC has no legal standing based on the chain of assignment before the Court.
4 B. DBNTC’S Argument in Support of 3rd Cause of Action Essentially
5 Confirming Prior Judicial Findings That It Is Not A Secured Creditor.
6 DBNTC’s own motion confirmed that Plaintiff alleged in his complaint that, on
7 09/20/2010, MERS assigned its beneficial interest in the Deed of Trust and the Note to DBNTC.
8 Statutory damage and attorney fee applied when a new creditor, DBNTC, failed to notify debtor of
9 such change in creditor. It is not MERS, as assignor, responsible to notify debtor of such change.
10 Rather it DBNTC’s responsibility. The assignment as judicially determined in prior proceeding
11 occurred on or about 09/20/2010 and Plaintiff filed this adversary proceeding on or about 01/2011.
12 DBNTC concealed the purported assignment of Deed of Trust on or around 08/20/2009 in
13 the prior proceeding. Worst yet, DBNTC intentionally withhold such critical evidence in its
14 response to Subpoena. See Subpoena on Deutsche Bank National Trust Company in Bankruptcy
15 Pacer Doc 54 and DBNTC responded with documents including Bates 00001-000052. See also,
16 Plaintiff’s RJN #4.
17 DBNTC’s total disregard of such subpoena is apparent and the purported assignment of
18 deed of trust must be disregarded in this proceeding. See Estate of Daily v. Lipipuna Assocs., 940
19 F.2d 1306 (9th Cir. 1991). Furthermore, DBNTC is collaterally estopped from taking different
20 position in this proceeding.
21 Therefore, Plaintiff’s third cause of action is fully supported by adjudicated fact.
22 C. Plaintiff’s Quiet Title Against DBNTC is Based on Adverse Claims
23 and Required Judgment Based on Prior Judicial Findings.
24 Plaintiff’s Complaint clearly brought the finding of fact and conclusion of law that DBNTC
25 has no legal standing based on chain of title before this Court and the Honorable Thomas B.
26 Donovan previously. This adversary proceeding accompanied the case in chief, which is the
27 bankruptcy case. DBNTC’s status as a secured creditor within the bankruptcy code is at issue.
28 Plaintiff’s asset was part of the bankruptcy estate under the control of Bankruptcy trustee. In the
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_________________________________________________________________________________________
PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT
DEUTSCHE BANK NATIONAL TRUST COMPANY.
Case 6:11-ap-01001-SC Doc 25 Filed 04/19/11 Entered 04/19/11 12:34:30 Desc
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1 context of bankruptcy proceeding, tender would be made as part of the bankruptcy estate if there is
2 any. Furthermore, DBNTC claims adverse interest in the subject property and such interest has
3 been judicially determined that DBNTC had none. Thus, the purpose of this adversary proceeding
4 is to reduce such judicial determination to judgment.
5 II.
6 CONCLUSION
7 DBNTC’s motion for judgment on the pleadings is essentially a sham. Plaintiff
8 respectfully requests this court to deny DBNTC’s motion and Granting Plaintiff’s Motion for
9 Judgment of the Pleadings, which is based on previous judicial finding of facts and conclusion of
10 law that DBNTC has no legal standing in asserting its interest in Plaintiff’s property.
11 Respectfully submitted.
12
13
Dated: April 19, 2011 ____________________________________
14 BY: GARY HARE
15 Attorney for BRIAN W DAVIES

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_________________________________________________________________________________________
PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT
DEUTSCHE BANK NATIONAL TRUST COMPANY.
Case 6:11-ap-01001-SC Doc 25 Filed 04/19/11 Entered 04/19/11 12:34:30 Desc
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NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in
1 Category I. Proposed orders do not generate an NEF because only orders that have been entered are
placed on the CM/ECF docket.
2
3 PROOF OF SERVICE OF DOCUMENT
4 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 #200 Fountain Valley, California 92708
5
A true and correct copy of the foregoing document described PLAINTIFF’S OPPOSITION TO MOTION
6 FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT DEUTSCHE BANK NATIONAL TRUST
COMPANY will be served or was served (a) on the judge in chambers in the form and manner required
7 by LBR 5005-2(d); and (b) in the manner indicated below:

8
I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to
9 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. On April 19, 2011, I checked the CM/ECF docket for
10 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:
11
12  Gary L Harre ghcmecf@gmail.com
 Andrew E Miller amiller@allenmatkins.com
13
 Loraine L Pedowitz lpedowitz@allenmatkins.com
14  United States Trustee (RS) ustpregion16.rs.ecf@usdoj.gov
 Patricia J Zimmermann (TR) pjztrustee@aol.com,
15
pzimmermann@ecf.epiqsystems.com
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II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served):
17 On April 19, 2011, I served the following person(s) and/or entity(ies) at the last known address(es) in this
bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope
18 in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as
follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later
19 than 24 hours after the document is filed.

20 Honorable Scott C. Clarkson


21 411 West Fourth Street, Suite 5130
Santa Ana, CA 92701-4593
22
23 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true
and correct.
24
April 19, 2011 Delores Jackson /s/ Delores Jackson
25 Date Type Name Signature

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_________________________________________________________________________________________
PLAINTIFF’S OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS FROM DEFENDANT
DEUTSCHE BANK NATIONAL TRUST COMPANY.