Appellant's Opening Brief

PERRY V. JPMORGAN CHASE BANK, NA; FEDERAL

NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE

CORP

APPELLANT'S OPENING BRIEF

PERRY V. JPMORGAN CHASE BANK NA et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

LEIGHTON LEE PERRY

Plaintiff and Appellant,

v. FEDERAL NATIONAL

MORTGAGE ASSOCIATION, JP MORGAN CHASE BANK NA,

QUALITY LOAN SERVICE CORP,

Defendants and Respondents.

Court of Appeal No. C139655

(Super. Ct. No. MSC10-02914)

Appeal From a Judgment

Of The Superior Court, County of CONTRA COSTA

Hon. Laurel S. Brady, Judge

_________________________________________

APPELLANT'S OPENING BRIEF

_________________________________________

David Chavez, Esq. AlvaradoSmith APC

Leighton Lee Perry

235 Pine Street Ste 1200 6724 Waverly Rd, Martinez, CA San Francisco, CA 94104 (925) 949-8377 [email protected] Charles Bell, Esq McCarthy & Holthus LLP

Appellant Self-Represented

1770 Fourth Ave San Diego, CA 92101

TABLE OF CONTENTS Page

Page i PERRY V. JPMORGAN CHASE BANK NA et al

SUMMARY OF ISSUES AND ARGUMENT 5

Complaint Allegations ............................................................................. 5

Denial of Discovery ................................................................................. 6

Motions for Summary Judgment ............................................................. 6

Summary of Appellant’s Argument......................................................... 7 STATEMENT OF THE CASE 10

STATEMENT OF APPEALABILITY 11

ISSUES PRESENTED 12

1.) Did the trial court err in failing to determine whether Respondents have capacity to receive equitable relief from the court as a question of law over jurisdiction of parties?................................................... 12

2.) Did the trial court err in determining subject matter jurisdiction in a summary judgment motion by allowing Respondents new argument in their Reply to their summary judgment motion? ......................... 13

3.) Did the trial court err in taking judicial notice of, and accepting as true, the contents of certain recorded documents? ........................... 16

4.) This case is distinguished from Gomes and Calvo by the Deed of Trust language that overrules the ‘all inclusive’ Civil Code §2924 et seq and exception to 2932.5 as an “other encumbrancer”. .............. 17

5.) Did the trial court err in its ruling that there is no genuine dispute whether the Notice of Default (“NOD”) is void?............................. 21

6.) Did the trial court err in ruling that QLS was an agent of “the beneficiary” and could act as such to pass agency to yet another party to file the NOD?...................................................................... 28

7.) Does substantial evidence contradict the trial court’s ruling that the ‘original’ promissory note was presented at Appellant’s deposition as a ‘permissible lay opinion’ over Appellant’s objection? ............. 30

8.) Does substantial evidence contradict the trial court’s finding that Appellant attested to his signature?.................................................. 32

9.) Was Appellant denied due process by the trial court relinquishing decisions on motions to compel discovery to a ‘discovery facilitator’? ....................................................................................... 33

10.) The Court erred in its decision regarding Plaintiff’s objection to judicially noticed documents of Defendants. ................................... 35

TABLE OF CONTENTS Page

Page ii PERRY V. JPMORGAN CHASE BANK NA et al

11.) The Court erred in its decision that a single beneficiary was properly identified. ........................................................................... 38

12.) The Court erred in its decision to consider the Fourth cause of action in light of the First, Second, and Third causes of action. ...... 39

13.) Did the trial court deny Appellant due process by allowing new significant argument regarding diversity jurisdiction of the court in a reply to a summary judgment motion?............................................. 39

14.) Plaintiff requested Defendants to produce and identify the common business documents showing their vault custodians either transferred the original promissory note to a subsequent beneficiary, or received the original promissory note, or sent or received bailee letters in its stead. ............................................................................. 41

ARGUMENT 42

I. FAILURE TO PROVIDE STATEMENT OF DECISION IS REVERSIBLE ERROR ................................................................... 42

II. RESPONDENTS HAVE SHOWN NO HARM BY APPELLANT’S ACTIONS AND THE COURT HAS NO JURISDICTION TO AFFORD THEM EQUITABLE RELIEF ..... 44

III. APPELLANT’S APPLICATION OF §2943 IS NOT PREEMPTED AS IT AFFECTS NEIGHER SERVICING NOT LENDING. ....................................................................................... 44

IV. this case identifies a legal basis for an action to challenge Defendants’ authority to initiate non-judicial foreclosure. .............. 46

V. recent developments ......................................................................... 47 SUMMARY 47

TABLE OF AUTHORITIES Page

Page iii PERRY V. JPMORGAN CHASE BANK NA et al

Cases

15 U.S.C. § 1641(g) (TILA)........................................................................40

Aceves v. U.S. Bank, N.A. (2011), 192 Cal.App.4th 218...........................27

Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111

P.2d 740] ................................................................................................30

Cal. Rules of Court 3.1590(a) ....................................................................44

Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR3d 815.....................22

Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011)..........46

Chao v. Aurora Loan Services, LLC Case No. C 10-3118 SBA, No. C 10-

3883 SBA. (2012) ..................................................................................17

Chesny v. Grisham (1976) [64 Cal.App.3d 120, 134 Cal.Rptr. 238...........18

D’Amico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716 , 86

Cal.Rptr. 245..........................................................................................33

DeLeon v. Wells Fargo Bank, N.A., No. C10-01390 LHK, 2011 WL

311376, at *6 (N.D. Cal. Jan. 28, 2011) ................................................17

Fontenot v. Wells Fargo N.A, (2011) 198 Cal.App.4th 256; 129 Cal. Rptr.

3d 467.....................................................................................................17

Gale v. First Franklin Loan Servs. (2012) 701 F.3d 1240 ..........................47

Herrera v. Deutsche Bank, 196 Cal.App.4th 1366, 3rd District (2011)......18

Jenkins v. JP Morgan Chase Bank NA (2013) Cal App 4th (G046121)....22,

47

Jolley v. Chase Home Fin., LLC., 213 Cal. App. 4th 872 (2012)...............38

Knapp v Doherty (2004) 123 Cal.App.4th 76 .............................................27

L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp (1991) 1

Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680].............................................30

TABLE OF AUTHORITIES Page

Page iv PERRY V. JPMORGAN CHASE BANK NA et al

Lawther v. OneWest Bank FSB et al, No. C-10-54, 2010 WL 4936797, at

*7 (N.D. Cal. Nov. 30, 2010).................................................................16

Lawther v. OneWest Bank, FSB, No. C 10-00054 JCS, 2012 WL 298110,

at *23 (N.D. Cal. Feb. 1, 2012)..............................................................16

Medrano v. Flagstar Bank, FSB (2012), 704 F. 3d 661 ..............................46

Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510 ....................33

Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986) ..................................28

Simon v. City and County of San Francisco (1947) 79 Cal.App.2d 590, 600

................................................................................................................15

Trinsey v. Pagliaro D.C. Pa. 1964, 229 F. Supp. 647 .................................32

Whittington v. McKinney (1991) 234 Cal.App.3d 123, 127 ......................44

Statutes

12 U.S.C. § 2605(e).....................................................................................45

12 U.S.C. § 2605(e)(1)(A)-(B)....................................................................46

12 U.S.C. § 2605(i)(3).................................................................................46

15 U.S.C. § 1641(f)(2).................................................................................46

Cal. Civ. Code §2943 ..................................................................6, 11, 29, 47

Cal. Evid. Code §453...................................................................................38

Cal. Penal Code §115.5 .........................................................................10, 12

Civil Code §2295.........................................................................................30

Code of Civil Procedure, §437c(m) ............................................................13

Page 5 of 46 PERRY V. JPMORGAN CHASE BANK NA et al

SUMMARY OF ISSUES AND ARGUMENT

Complaint Allegations

Plaintiff / Appellant Leighton Lee Perry filed a complaint October 14,

2010 alleging Defendants / Respondents JP Morgan Chase Bank NA1

(“JPM”) and Federal National Mortgage Association (“FNMA”) induced

him to default on his home loan (“Subject Loan”) by refusing to evidence

their identity as the lender, beneficiary, or “note holder” of the original

promissory note (“Note”) encumbered by a deed of trust (“DOT”).

Appellant was forced to stop making payments in order not to affirm an

illegitimate debt due to non-compliance of statutory terms. Subsequently a

Notice of Default (“NOD”) was recorded by parties unknown to the

original documents. Several weeks following the NOD a copy of the Note

was provided at the same time JPM was allegedly assigned beneficiary

interest2, who subsequently substituted and recorded QLS as the trustee to

the DOT.

Appellant’s First Amended Complaint (“FAC”) [CT7], filed July 29,

2011, contains causes of action for violation of Cal. Civil Code §29433;

slander of title; quiet title; and related injunctive relief, and joined Quality

Loan Service Corp (“QLS”) as a Defendant.

Appellant opposed QLS’ motion for Non-Monetary Status in part due to

1 Subsequent to the action being filed Chase Home Finance, LLC was merged into JP Morgan Chase Bank NA. Chase, F/K/A Chase Home Loan Finance LLC, who was the loan servicer during all periods referenced in this action. 2 JPM cannot claim defense of holder in due course unless the NOD is voided or rescinded because it was published and recorded before the execution date of the alleged assignment 3 ALL STATUTE REFERENCES are to Calif. Civil Code unless otherwise noted


possible criminal violations [CT8].

Denial of Discovery Appellant made 2 attempts to elicit discovery from Respondents. The

first attempt met with a Commissioner who denied motions to compel

because Appellant filed the motions to compel after receiving ‘junk’

responses but before the statutory time to provide answers had elapsed. The

second attempt was thwarted by the trial court diverting parties to

‘discovery facilitation’ which Appellant took at its namesake, but which the

trial court and Respondents treated as binding arbitration by holding

Appellant to an ‘agreement’ presented by the ‘facilitator’ which Appellant

did not sign [CT60]. Appellant’s arguments may be found in his

(unopposed) motion for reconsideration of that decision [CT56] and

provides the requests and answers of the pertinent elements.

The trial court’s discovery oversight resulted in not a single person

identified by Defendants JPM or FNMA according to the directions of

IDENTIFY (name, job title, contact info) in the forms interrogatories (such

as a records custodian or vault custodian); nor a single document depicting

agency relationship between QLS and either FNMA; McCarthy & Holthus;

JPM; or LPS.

Motions for Summary Judgment Respondents FNMA / JPM filed a joint motion for summary judgment

January 29, 2013; QLS filed theirs on January 29, 2013. The FNMA / JPM

motion presented federal preemption of §2943, and their reply introduced

new argument regarding that issue [CT53: Pg.8 V.]. Originally they were

scheduled 2 weeks apart but were combined to a single date on the trial


court’s own motion.

Summary of Appellant’s Argument

Appellant is attempting to honor the obligation that he took the property

with clear title, passed that clear title to the deed of trust, and will defend

the clear title during the term of the deed of trust. The trial court ruled there

is no genuine dispute as to the terms of the deed of trust [CT3: Pg4 ln1] yet

did not address Appellant’s issue that elements required by the DOT are

absent from the NOD, e.g., only the trustee shall record the notice of

default; notice of right to question beneficiary interest in title with a

statement to that effect. To the public view, title is now clouded by the

actions of Respondents who are strangers to the original contract.

The facts show that JPM took the Note with notice of default because

the Title Guarantee insured JPM effective the date of the NOD was

recorded. QLS provided the following statement in a supplemental response

to special interrogatories

In this case, at the time of the foreclosure referral this responding party was informed that Chase was the holder of the note and record title reflected that Fannie Mae was the beneficiary of record, As such, this responding party prepared an assignment of the deed of trust into Chase, informed Chase that the assignment was needed, and after confirming that McCarthy & Holthus had authority to execute the assignment on behalf of Fannie Mae under a Power of Attorney, Tim Bargenquast4 executed the assignment as the agent for McCarthy & Holthus.

JPM cannot claim “holder in due course” with its “free of borrower

4 A full-time employee of QLS for whom no power of attorney exists


defenses” status and is thus just a holder subject to defenses, or even less, a

mere possessor by bailment, holding no rights to enforce under any

conditions. As such it explains the fact that no required notice under TILA

of change of beneficiary was found in the correspondence among the 527

pages of discovery provided by JPM. It explains why the term “vesting

assignment” is used within the industry because FNMA cannot make a

credit bid on a foreclosure, but an agent like JPM, can. It also shows QLS

acted with malice, knowing it was recording a document that placed a cloud

on the Subject Property title by presenting conflicting beneficiaries in the

public record. The next step in implementing the ‘just in time’ tactic was to

record the vesting assignment as close to the trustee sale date as possible in

order to maximize the amount of time that public access to title records

would return an obvious conflict of beneficiary interest and a clouded title

that diminishes the marketability of the property. The result over millions

of foreclosures is a percentage of trustee sales taken by a non-cash credit

bid and conveyed without any warranty of title. And even though a

rescission of the notice followed by the vesting assignment would pass a

clear title and the conveyance would be “final between parties”, the

California judiciary has supported this cheating scheme by ruling the out of

sequence title recording causes no harm. In this case the trial court ruled the

NOD “is a notice document, and not a title document” [CT3: Pg6 ln21],

unless it names a false beneficiary as the authority who elects to foreclose

and affect title by a trustee sale and the courts confirm it because the non-

judicial foreclosure was presumed to be regularly conducted.

The out of sequence assignment from FNMA to JPM for which there


are no business records to corroborate the “consideration” and “transfer” of

the Note, raises a question of illegitimacy of the transfer, thereby making a

case for violation of Penal Code §115.5, felony false filing.

The trial court denied Appellant the discovery of business records that

account for the apparent inability to provide a copy of the Note when

requested when the recorded assignment stated the Note was transferred

and should have been available for copying. As a result Appellant is

prejudiced in his obligation to make certain there is a finality of clear title

between parties in the event Respondent’s actions result in a trustee sale of

the Subject Property.

Respondents claim the violation of §2943 is preempted by federal

lending and servicing statutes, likely due to its provision of defining a tort

with punitive damages. The recent legislative reenactment after of the

statute that was set to expire January 1 of this year and its implied

consideration, and the clear language of the federal code that exempts from

preemption tort and real estate law, demonstrates the importance of the

states’ right (and responsibility) to track title of property.

The bulk of case law regarding non-judicial foreclosures is based on

non-binding federal court decisions interpreting California statutes that

have no legal effect except in the absence of California case law. As such,

they do not regard the beneficial interest of clear title, because the federal

government is the authority of all land bequeathed to the states. It is

therefore up to the states to track title interests to maintain the value of clear

title to land and to the public interest.


STATEMENT OF THE CASE Appellant intended to extinguish the Subject Loan with a ‘reverse’

mortgage if necessary to access the considerable equity in the Subject

Property [CT3 pg 5 ln19] and requested a beneficiary statement, including a

contemporary copy of the original promissory note (“Note”), under Cal.

Civil Code §2943, to confirm a clear title still exists. A copy of the

promissory note [CT15: Exh “1”] is necessary because that is the sole

document containing title affecting endorsements in terms of the authority

to change the chain of title history as a result of a trustee sale. The (mis-

)recorded beneficiary was FNMA from a questioned assignment recorded

in 1991 [CT16: Exh “2”] due to unexplained endorsements with no

corresponding recorded assignments inter alia. The FAC alleges that

Appellant would suffer severe financial damages as a result of his home

(“Subject Property”) being wrongfully foreclosed by persons unknown to

the original loan documents and requested that payments made to strangers

to the contract be returned to Appellant in the event a legitimate beneficiary

should subsequently come forward, among other requests. [CT7].

QLS, allegedly acting as an agent for an unidentified beneficiary,

received and acted upon a Referral for Non-judicial Foreclosure that listed

both a beneficiary (JPM) and investor (FNMA) simultaneously claiming

rights of a beneficiary with the power to affect title history by effect of

foreclosure and trustee sale. [CT47: Exh “C”, “D” Pg3 Ln6]. QLS caused

their alleged “agent” LSI Title to file a notice of default under the ruse QLS

was an “agent” of “the beneficiary” named as JPM on the notice, but under

the direction of McCarthy & Holthus, who are agents of FNMA, thereby


clouding the title of the Subject Property while violating Penal Code 115.5

(felony false filing). Subsequent assignment to JPM and substitution of

trustee to QLS was executed and recorded weeks later that coincided with

the production of a copy of the Note. No rescission of the NOD was

recorded.

Appellant has good reason to question the assignment from the original

lender that stated the Note was transferred but no copy could be produced

and no general ledger or accounts receivable records were produced by the

assignee (FNMA) to substantiate either the transfer of the Note or loan

level accounting for the obligation. As a result there remains a question of

any subsequent assignments (e.g.JPM), especially when there are no

records produced of a loan level receivable or transfer of the Note as stated

on the assignment. The trial court responded to these concerns by ignoring

the request for statement of decision showing facts supporting any equitable

interest that would allow the court to provide remedy to Respondents.

Respondents aver that their attorneys’ statements that they possess the

Note, statements taken out of context from Appellant, and questionable

assignments are sufficient for the court to award them another ‘free’ house.

Even if the proffered note can be proven authentic, and proof of clear

title can be made, then the tort of §2943 comes into full circle, and

Appellant is exonerated of any damages that might have been suffered by

Respondents due to their own actions, plus $300 and all damages.

STATEMENT OF APPEALABILITY This appeal is from the entry of judgment of the Contra Costa County

Superior Court on orders granting summary judgments in favor of


Respondents Federal National Mortgage Assn (“FNMA”), JP Morgan

Chase Bank NA (“JPM”), and Quality Loan Service Corp (“QLS”) in a

consolidated hearing of a case filed by Appellant Leighton Lee Perry and is

authorized by the Code of Civil Procedure, §437c(m). The entry of

judgment for Respondents FNMA and JPM was filed July 19, 2013 [CT5],

and that of QLS was filed September 19, 2013 [CT4] and served upon

Appellant.

TRIAL COURT RULING Based upon denial of discovery responses from, and motions for

summary judgment by Respondents, the trial court entered a final judgment

in favor of the Respondents (CT 3) and left unanswered a request for a

statement of decision regarding standing (or capacity) of Respondents for

equitable relief from the Court. A pending motion (unopposed) for

reconsideration of motions to compel further responses from FNMA, JPM,

and QLS was dismissed by the trial court [CT55; CT6].

This court should be troubled by a trial court denying discovery in

circumstances where a creditor allegedly acquired a loan with notice of

default, and thereby became subject to actions by borrower as a possible

holder not in due course by the California Commercial Code statutes CCC

3032 et seq. As such, it violates the obligation of borrowers of mortgages to

defend the clear title to their property so the legislative goal of finality

between parties may be achieved.

ISSUES PRESENTED

1.) Did the trial court err in failing to determine whether Respondents

have capacity to receive equitable relief from the court as a question of law


over jurisdiction of parties?

Appellant requested a statement of decision in his request for hearing in

response to the Court’s tentative ruling on the summary judgments

“Plaintiff is putting the Court on notice that he will be asking the court to provide the factual determination of the amount of money Fannie Mae paid to the original lender for the Subject Loan, and the amount of money JP Morgan paid to Fannie Mae for the Subject Loan as a question of standing as a party with equitable interest to the action. Plaintiff needs the courts determination on these facts, and the pleadings in which they were found, to present to the Appeallate [sic] Court.” [CE: Pltf “G”]

which was served by fax on all parties, was acknowledged by the trial court

(TR4: Pg 4 ln 2), and conditionally restated by Appellant at the hearing

under duress from the trial court (TR4: Pg 21 ln18), to which the trial court

refused to answer.

Appellant first raised the jurisdictional issue of capacity in his Motion

for Modification of Preliminary Injunction5 [CT11: Req Stmt Decision],

which was denied by the trial court. Appellant challenged the finding of a

valid negotiated assignment from the original lender to FNMA in his MSJ

Opposition [CT44: Pg6 ln7], his statement of objections [CT51], and at the

hearing for summary judgment [TR4: Pg 6 ln12].

2.) Did the trial court err in determining subject matter jurisdiction in a

summary judgment motion by allowing Respondents new argument in their

Reply to their summary judgment motion?

“The trial of a law suit is not a game where the spoils of

5 Plaintiff refers to the monthly payment as ‘rent’ in his pleadings in order not to affirm an illegitimate debt. or a debt that would have been extinguished by a payoff from a reverse mortgage or third party payoff with subrogation waived


victory go to the clever and technical regardless of the merits, but a method devised by a civilized society to settle peaceably and justly disputes between litigants . The rules of the contest are not an end in themselves.” Simon v. City and County of San Francisco (1947) 79 Cal.App.2d 590, 600 [180 P2d.398], cited by Adams v. Murakami (1991) 54 Cal.3d 105,120.

The jurisdictional issue of preemption of §2943 was raised in

Defendant’s Motion for Summary Judgment [CT13: Pg2 ln23; P&A VII].

The cases presented considered overcharging payoff demand statement fax

fees and inappropriate RESPA claims. This issue is not about a RESPA

claim because the QWR referred to §2943, not RESPA; nor was the QWR

for an amount-binding payoff demand statement (Jelsing), but rather, for a

beneficiary statement, and none of Respondents citations are not on point.

This point was presented in Appellant’s opposition to summary judgment

[CT44: Pg9 ln10].

To the extent Plaintiff believes he is entitled to receive loan ownership information through a QWR, he is mistaken. Seeking information as to the owner of the loan is not a valid purpose of a QWR; rather, a QWR can only request information regarding servicing the loan. 12 U.S.C. §2605(e)(1)(A); see Gates v. Wachovia Mortgage, FSB, 2010 WL 2606511, at *3-4 (E.D. Cal. June 28, 2010) (holding that inquiry into ownership of a loan does not qualify as a QWR); Lawther v. OneWest Bank FSB et al, No. C-10-54, 2010 WL 4936797, at *7 (N.D. Cal. Nov. 30, 2010) Fn 2 U.S.C. § 2605(e)(1)(B). Byrd v. Guild Mortg. Co., 2011 WL 6736049, *2 (S.D. Cal 2011). Obot v. Wells Fargo Bank, N.A., 2011 WL 5243773, 2 (N.D. Cal. 2011) (“In order to qualify as a QWR, the correspondence must satisfy several statutory requirements. Among other things, and most pertinent to the discussion here, a QWR must request information relating to the servicing of a loan. RESPA defines the term ‘servicing’ to mean ‘receiving any scheduled periodic payments from a borrower pursuant to the terms of


any loan ... and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.”’); see also, Lawther v. OneWest Bank, FSB, 2012 WL 298110, 14 (N.D. Cal 2012)( “‘Not all requests that relate to the loan are related to the servicing of the loan’ Williams v. Wells Fargo, 2010 WL 1463521, *3 (N.D. Cal 2010). ‘A loan servicer only has a duty to respond if the information request is related to loan servicing.’ Copeland v. Lehman Bros. Bank, FSB, 2010 WL 2817173, *3 (S.D. Cal 2010)”)

Over Appellant’s objection the Court allowed Respondents to revise

their argument in their reply brief to their summary judgment motion to

state HOLA covers national banks as well as savings and loan institutions

[CT52]. The unfair surprise of new legal citations6, delay of discovery

ruling and consolidation of summary judgment motions to be heard

together by the trial court prejudiced Plaintiff’s ability to address the issue

on a level appropriate to its gravity to the case. RESPA had no provisions

to identify the beneficiary before the Dodd-Frank act that went into effect

in July21, 2010, a month after both QWRs had been received by

Respondents. Appellant requests the court to consider the following on

federal preemption of §2943 in response to the issue raised in Respondents’

Reply to Opposition of MSJ [CT52] as the likely considerations that led the

legislature to reenact §2943 effective January 1, 2014.

In general, when a state law claim necessarily requires the lender to provide specific notices or disclosures during the lending or foreclosure process, courts have found that such claims are preempted by HOLA. See Lawther v. OneWest Bank, FSB, No. C 10-00054 JCS, 2012 WL 298110, at *23 (N.D. Cal. Feb. 1, 2012) (citing cases). "On the other hand, when a claim is based on the general duty not to misrepresent

6 Javaheri, McNeeley


material facts, and when application of a state law does not regulate lending activity, district courts have found that the claims are not preempted by HOLA." see, e.g., DeLeon v. Wells Fargo Bank, N.A., No. C10-01390 LHK, 2011 WL 311376, at *6 (N.D. Cal. Jan. 28, 2011) (finding that HOLA did not preempt UCL claim based on misrepresentation but dismissing claim for failure to allege injury). Chao v. Aurora Loan Services, LLC Case No. C 10-3118 SBA, No. C 10-3883 SBA. (2012)

Here, Appellant alleged the requisite prejudice by stating he was forced

to stop making payments in order not to affirm an illegitimate debt to a

party who could not even provide a copy of the Note to identify its

beneficiary interest, and a NOD was recorded as a result.

3.) Did the trial court err in taking judicial notice of, and accepting as

true, the contents of certain recorded documents?

Appellant’s evidentiary objections [CT46: #2, 4; CT50: #4] of

illegibility and foundation to the judicially noticed assignment of the

original lender to FNMA [CT14: Exh 2; CT13: Exh 3;] of FNMA / JPM

and QLS [CT18: Exh “B”] were overruled by the trial court [CT3: Pg 2 ln

18; Pg 3 ln 9 et seq], citing Fontenot7. Appellant alleges it was an abuse of

discretion for the trial court to translate “SEE EXHIBIT A” and “END OF

DOCUMENT” into a loan number corresponding to the Subject Loan or

other elements identifying the Subject Loan or Subject Property. As such

there is no foundation to tie the only recorded assignment from the original

lender to the FNMA or JPM to either the Subject Loan or Subject Property.

The Fontenot court stated

7 Fontenot v. Wells Fargo N.A, (2011) 198 Cal.App.4th 256; 129 Cal. Rptr. 3d 467


“In Herrera8, the defendants sought judicial notice of the truth of recited facts within the recorded documents—for example, that a particular party ― ‘... is the present beneficiary under a particular deed of trust’. (Id. at p. 1375.) As the court noted, this is the type of statement found in Poseidon to be ineligible for judicial notice. (Herrera, at p. 1375)”

If this court looks to the exhibits attached to the Juan Sierra Declaration

they may find a legible copy of the assignment with proper attachments,

and details such as “Pool 0066629” and a number that corresponds on the

front page of the Note, and the allegation that the Note was transferred

(“together with the note…”) then coupled with the recent Calvo decision

where deed of trust loans are not ‘other encumbrancers’ and don’t require

public recording under Civ. Code 2932.5, the question arises why any

recorded assignment in a California non-judicial foreclosure case is

judicially noticed as a relevant document.

In determining a motion for summary judgment, the evidence must be

viewed by the Court in the light most favorable to the non-moving party,

and any factual conflicts must be resolved in favor of the non-moving

party. Chesny v. Grisham (1976) [64 Cal.App.3d 120, 134 Cal.Rptr. 238]. It

was an error of the trial court to find relevance of documents that provide

no material facts specific to the action or a foundation of business records

to support their consideration.

4.) This case is distinguished from Gomes and Calvo by the Deed of

Trust language that overrules the ‘all inclusive’ Civil Code §2924 et seq

and exception to 2932.5 as an “other encumbrancer”.

8 Herrera v. Deutsche Bank, 196 Cal.App.4th 1366, 3rd District (2011)


The plain language provides the right of borrower to challenge the

authority of a foreclosing party attempting to usurp a beneficiary’s rights

despite judicial activism legislating the ‘all inclusive’ nature of Civ Code

§2924 denies borrowers their right to certain clear title to their property

[CT18: Exh “3” ¶19].

“The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (emphasis added)

The plain language relies upon the “other encumbrances” found in Civ.

Code §2932.5 and the public recording requirements that Calvo denies

affects deed of trust loans [CT18: Exh “3” Pg1]

BORROWER CONVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. (emphasis added)

At the time the NOD was recorded Appellant had not received the

requested copy of the Note from his QWR within the statutory limits; the

NOD was populated entirely of strangers to publicly recorded documents,

the original contract, and to Appellant; and required language on the NOD

was replaced with

“… you only have the legal right to stop the sale of your property by paying the entire amount demanded by your creditor” [CT18: Exh “E”]

The trial court addressed this with this ruling –

“This leaves the Court with the question of question of whether recording the assignment to JP Morgan after the


notice of default represents a procedural irregularity in the nonjudicial foreclosure proceedings. The Court finds that it does not.” [CT3: Pg 6 ln 22]

to which Appellant points out that rescission of notice of default is a

commonly used document with county recorders to correct such a

“procedural irregularity” and that failure to do so obviously places a cloud

on the title of a property about to be sold at auction (thereby prejudicing

borrower by reducing its marketability and increasing the chance that the

lender’s credit bid will succeed as the highest). To this the trial court states

there is no prejudice to the borrower, and that Appellant failed to show

facts to support his slander of title cause of action in citing Aceves. [CT3:

Pg7 ln3].

This case is distinguished from Aceves9 because the trustee of record

(presumably) was known to Aceves as the point of contact, where in this

case an alleged agent of an alleged beneficiary were both unknown to the

borrower. Furthermore, the trial court disregarded the fact that the different

beneficiaries of Aceves were from 2 different actions, so it was correct that

the first action named the proper party, the second did not, and the

irregularity of 2 actions caused the wrong party to be identified on the

subsequent notice, which is not applicable in the case at hand. Here, an

agent of the beneficiary has no duty of representing borrower’s title

interests, which corresponds with the plain language in the DOT that only

the Trustee shall record a notice of default and sale which specifically

9 Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 232


excludes the lender (or its agents), while including the lender in further

instructions [CT18: Exh “3” ¶19] [TR4: Pg 12 Ln28 et seq]

Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by applicable law to Borrower …

The trial court would have us believe that a prudent man, charged with

maintaining clear title to his property, has no choice but to pay these

potential usurpers off due to the draconian non-judicial legislation from

judicial activists in California.

It is further distinguished by §2924j(a)(4), where a distribution of

surplus is considered after a trustee sale by evidence of possession of the

promissory note to determine beneficiary interest.

In the case of a promissory note secured by a deed of trust, proof that the person holds the beneficial interest may include the original promissory note and assignment of beneficial interests related thereto.

If the Note isn’t necessary to foreclose, and CC §2924 is “all inclusive”,

how do the courts expect the trustee to comply with this provision? Further

provisions of partition of real property interests, found in CCP 872 et seq

would likely come into play as 2924 has no provisions for proving

possession of a financial instrument transferred under notice of default and

as such, unable to claim holder in due course with its accompanying

privilege of defenses.

Whether an unknown bona fide beneficiary exists is of no concern to

this court. Whether a party unknown to the Note alleges the ability to affect

title by electing to exercise a power to foreclose, is.


The trial court presented its finding that possession of the Note is

evidence of beneficiary interest, yet is unconcerned with the material fact

that no party could produce a copy of the Note before the NOD, which is

the basis of the request for a “beneficiary statement” and tort in Civil Code

§2943. An alleged original of the Note is possessed by counsel representing

both FNMA and JPMorgan, but business records substantiating right of

possession, requested in discovery, were not produced. With the decision of

Calvo v HSBC Bank (2011) [199 CA4th 118, 130 CR3d 815] stating

assignments of deed of trust loans do not require recordation because they

are not “other encumbrancers”, it remains a material question of fact,

beyond a shadow of a doubt, of who the “note holder” is10.

5.) Did the trial court err in its ruling that there is no genuine dispute

whether the Notice of Default (“NOD”) is void?

The terms of the subject Deed of Trust required a statement on the NOD

that the borrower may litigate the standing of the party filing the notice

[CT44: Pg2 Ln14] [CT18: Exh “3” ¶19] [CT60: Pg16 Ln5].

“The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (emphasis added).

No such statement is apparent on the face of the NOD, yet the trial court

ruled “There is no genuine dispute as to the terms of the subject deed of

trust” [CT3: Pg4 Ln1]. The trial court made no reference to any violation of

10 Curiously the recent Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497 had in its opinion “The loan was secured by a deed of trust, which encumbered her residence located in Laguna Niguel, California.”


statute that would invalidate those contract terms.

Furthermore, plain language in the DOT states that only the Trustee

shall record a notice of default and sale which specifically excludes the

lender (or its agents), while including the lender in further instructions

[CT18: Exh “3” ¶19] [TR4: Pg 12 Ln28 et seq]

Trustee shall cause this notice to be recorded in each county in which any part of the Property is located. Lender or Trustee shall mail copies of the notice as prescribed by applicable law to Borrower …

Although 2924 may allow an agent of the beneficiary to file a notice in the

absence of any contractual language otherwise, here we have such language

in the contract and no provision barring the exclusion in the statute.

Only a single beneficiary possesses the power to elect to foreclose, as

indicated in the terms of the contract referring to “he / she”. On the date the

NOD was recorded Defendants state that JPM was the note holder /

beneficiary, and not FNMA [TR4: Pg22 Ln 13].

“In fact, plaintiff submits as part of his own opposition evidence a trustees’ sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record. (Perry Decs., Exhibit “C.”)” [CT3: Pg5Ln2]

Discovery responses from FNMA’s vault system showed it did not

possess the Note at that time. There are no facts explaining how then, with

an execution date a few weeks later, FNMA could execute an assignment of

the Note and beneficiary interest to JPM. Substantial law holds an assignor

cannot pass on more powers than it possesses. When the NOD was issued,

FNMA had no powers, by the trial court’s reasoning.

Evidence from QLS showed the party issuing the ‘foreclosure referral’


noted that JPM was the ‘beneficiary’ and FNMA was the ‘investor’ on the

date the NOD was filed. “Investor” is not a term known to the contract.

The trial court made the following ruling on Defendants’ demurrer to

the FAC [CT57]

Second, plaintiff alleges anomalies in the chronology of the foreclosure process that would appear to render the notice of default "void," and not merely voidable: 6-15-10 JP Morgan and QLS recorded a notice of

default. (FAC, paragraph 26.) 8-30-10 JP Morgan recorded an assignment of deed of

trust from Fannie Mae to JP Morgan. (FAC, paragraphs 28 and 29.)

9-23-10 QLS recorded a substitution of trustee. (FAC, paragraph 31.) These allegations have been confirmed by defendants' own request for judicial notice of the same recorded documents referred to by plaintiff. (See defendants' Request for Judicial Notice, Exhibits 3, 4, and 5.) In addition, defendants' request for judicial notice demonstrates that the assignment of the subject deed of trust from Fannie Mae to JP Morgan was not executed until August 25, 2010, and that the substitution of trustee was not executed until September 16, 2010 (RJN, Exhibits 4 and 5 [notarized signatures dated August 25 and September 16, 2010].) Thus it is undisputed that the notice of default was recorded by JP Morgan and QLS more than two months before an assignment to JP Morgan was effected (August 25, 2010), and more than three months before QLS was appointed as the foreclosure trustee (September 16, 2010). Defendants have failed to make a persuasive argument why a deed of trust [sic] recorded by persons with no interest in the subject property should not be deemed void. (See, Cal. Civil Code, sections 2924(a)(1) and 2924b, subd. (b)(4); Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 876�877.)


A year later, when confronted with facts that presented competing (or

no) beneficiary interest among parties when the NOD was recorded, the

trial court it ruled

“In fact, plaintiff submits as part of his own opposition evidence a trustee’s sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record. (Perry Decs., Exhibit “C.”)

when the ‘of record” reflected FNMA was the last recorded beneficiary

until weeks after the NOD was recorded, and the guaranty had noted that as

an exception.

No effort to rescind and re-issue the NOD was recorded by

Respondents. Discovery responses from Respondent QLS indicate the

willful clouding of the Subject Property instead:

In this case, at the time of the foreclosure referral this responding party was informed that Chase was the holder of the note and record title reflected that Fannie Mae was the beneficiary of record. As such, this responding party prepared an assignment of the deed of trust into Chase, informed Chase that the assignment was needed, and after confirming that McCarthy & Holthus had authority to execute the assignment on behalf of Fannie Mae under a Power of Attorney, Tim Bargenquast executed the assignment as the agent for McCarthy & Holthus.11 Plaintiff argues that with respect to deed of trust loans under Stockwell,

on which Calvo relied, only the trustee holds the power to foreclose. There

is no mention of ‘or its agent’ in the language, which makes sense because

trustees must be publicly recorded on or before conducting a foreclosure

(with special provision for notifying borrower in the event notice is given

the same day), but that language does not extend to ‘their agents’ or to

11 Statement in Support of Motion to Compel Responses to Special Interrogatories to QLS, SET ONE, SI (5) [Pg 8 ln 14]


beneficiaries (and their agents). In the case at hand, QLS is named on the

notice “as agent for beneficiary” who had their agent, LSI Title Company,

actually sign the notice. JPM was named as beneficiary on the NOD. A

power of attorney was produced by QLS establishing agency between

McCarthy & Holthus (“M&H”) and FNMA, and JPM is named in a power

of attorney for FNMA, but QLS is not named in any document establishing

any agency relationship with anyone, either in pleadings or in their

production from discovery. Nor did QLS claim they were a subsidiary of

McCarthy & Holthus.

Appellant objected to the noticed substitution of trustee, citing Herrera,

and as such the trial court had no uncontroverted facts to base its decision

that QLS was ‘agent for the beneficiary’.

The trial court raises the argument that the NOD is not a ‘title

document’ and so sloppy paperwork is rewarded even though the

Legislature provides statutory procedures to correct such errors. Appellant

would proffer that a NOD is ‘notice’ under UCC that disallows a defense of

beneficiary interest in due course and subjects a transferee after such notice

to the requirement to prove the chain of beneficiary interest if challenged

by the borrower. A NOD also indicates the election to affect title by

foreclosure with its statement of election to sell, putting the public on

notice of an active lien on the title. This conflicts with the Calvo decision

that deed of trust loans are not “other encumbrancers” and do not have to

record transfers to protect their right to foreclose as “holders in due course”.

The language of the statute that allows an execution date earlier than the

filing date of an assignment demonstrates the intent of the legislature that


the fact of recording an assignment executed after the notice of default is of

consequence.

The trial court denied discovery to Plaintiff in order to allow its

inference from the (objected to) fact of recordation by QLS that it acted

with authority because “where else would QLS have received the deed of

trust information (publicly recorded), the dollar amount of the default,

etc.?” [Order p6 ln27]. The discovery questions by Plaintiff relating to

agency, particularly to LSI Title Company, who actually filed the NOD,

were denied by the trial court, perhaps because it would have uncovered the

answers contrary to the trial court’s inferences.

And finally, the trial court depends on a reference to case law that deals

with robo-signing, notification dates and periods, when the case at hand

deals with parties’ authority to execute such notice. First, Aceves12 ruled a

mis-named beneficiary on a notice of default did not prejudice homeowner

because the notice instructed inquiries for some specific issues to be

directed to the trustee of record. (However request a modification was not

considered in the ruling, and only a beneficiary can modify the loan) Unlike

Knapp13, in the instant case the trustee / (alleged agent of incorrect)

beneficiary named on the NOD was not of record. Cal. Penal Code 115.5

has frequently been cited as basis of prejudice to Plaintiff as a result of

parties unknown to borrower recording documents affecting credit and

reputation. The trial court couldn’t even get it right that it was an alleged

agent for QLS who filed the NOD, although it was plainly stated in

12 Aceves v. U.S. Bank, N.A. (2011), 192 Cal.App.4th 218; 120 Cal.Rptr.3d 507 13 Knapp v Doherty (2004) 123 Cal.App.4th 76; 20 Cal.Rptr.3d 1


Plaintiff’s pleadings.

This ties to the Fourth cause of action and the QWRs requesting a

contemporary copy of the promissory note to define the current ‘note

holder’ (term defined by the originating note) who has the power to

substitute trustees and determine if any special endorsements depict a

complete chain of title to the current ‘note holder’, and thus define whether

the ‘note holder’ has a status of holder in due course or is subject to claims

by the borrower. The presumption is that the only document exhibiting such

endorsements would be the original promissory note.

When subject matter jurisdiction is challenged, the burden of proof is

placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792

F.2d 925, 927 (9th Cir.1986) (holding that “the party seeking to invoke the

court’s jurisdiction bears the burden of establishing that jurisdiction exists”)

Chase’s efforts to challenge subject matter jurisdiction in federal courts

have been previously rejected, See e.g. Jefferson et al. v. Chase Home

Finance, 2008 U.S. Dist. LEXIS 101031 (N.D. Cal. Apr. 29, 2008) (Hon.

Thelton E. Henderson rejected Chase’s argument that NBA and OCC

regulations preempt consumer protection laws in connection with Chase’s

improper application of loan prepayments); see also In re Chase Bank USA,

N.A. “Check Loan” Contract Litigation, 2009 U.S. Dist. Lexis 108636

(N.D. Cal. 2009) (Hon. Maxine M. Chesney rejected Chase’s argument that

plaintiffs’ state law claims concerning the bank’s practice of issuing

“convenience checks” on credit card accounts was preempted by the NBA)

Gutierrez v. Wells Fargo Bank, N.A., No. C 07-05923 WHA, --- F.

Supp. 2d ---, 2013 WL 2048030, at *1 – 2 (N.D. Cal. May 14, 2013)


(“Gutierrez III”); see Gutierrez II, 704 F.3d at 727 (“we hold that

Gutierrez’s claim for violation of the fraudulent prong of the [UCL] by

making misleading misrepresentations with regard to its posting method is

not preempted, and we affirm the district court’s finding to this extent”);

Gutierrez I, 730 F. Supp. 2d at 1129

“Wells Fargo affirmatively reinforced the expectation that transactions were covered in the sequence made while obfuscating its contrary practice of posting transactions in high – to - low order to maximize the number of overdrafts assessed on customers.”

A recent Order in federal district court arrived at this decision on a

related question –

“Based on Gutierrez, Defendants’ blanket argument that the UCL claim is preempted in its entirety fails. As will be discussed in more detail infra, Plaintiffs have sufficiently stated a claim for fraud which, as pled, also states a claim for a UCL violation under the fraudulent prong. Plaintiffs have alleged both that Defendants failed to advise them of actual costs of services and inflated fees, and also that false statements were made to borrowers when Defendants told them the fees were in accordance with their mortgage agreements. Failure to adequately disclose this practice can shape reasonable expectations of consumers and be misleading. See Gutierrez III, 2013 WL 2048030, at *2.”

Appellant alleges that failure to adequately disclose the beneficiary

interest by supplying a copy of the note shaped reasonable expectation that

he would acknowledge an illegitimate obligation by making a subsequent

payment to Respondents as a result of their misleading actions. This is the

tort allowed under Cal. Civ. Code §2943, excluded from preemption under

federal banking law, regardless of the Note being subsequently produced.

6.) Did the trial court err in ruling that QLS was an agent of “the

beneficiary” and could act as such to pass agency to yet another party to file

the NOD?

A party claiming agency must provide facts to support the contention.


There are no facts directly linking QLS to either FNMA or JPM, nor to the

party whom QLS alleges filed the NOD as QLS’ agent, nor any

authorization of ability to pass agency powers to another. QLS identified no

documents relating them to any captioned party as an agent, and declared

that all documents were produced. Although QLS identified McCarthy &

Holthus as agent for FNMA, there are no facts demonstrating agency or

subsidiary relationship of QLS to McCarthy & Holthus.

Civil Code §2295 provides: "An agent is one who represents another,

called the principal, in dealings with third persons. Such representation is

called agency."

"The existence of an agency is a factual question within the province of

the trier of fact whose determination may not be disturbed on appeal if

supported by substantial evidence." (L. Byron Culver & Associates v.

Jaoudi Industrial & Trading Corp., internal citation omitted.)

The party asserting the existence of a principal-agent relationship has

the burden of proving it existed, as well as the scope of the authority given

to the agent by the principal with respect to the transaction upon which the

action is brought. (California Viking Sprinkler Co. v. Pacific Indemnity Co.

(1963) 213 Cal.App.2d 844, 850.) , (Burbank v. National Casualty Co.

(1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].).

Putting parties within the context of California Civil Jury Instructions

(CACI) § 3705. Existence of "Agency" Relationship Disputed

[QLS] claims that [QLS] was [JPM]'s agent and that [JPM] is therefore responsible for [QLS]'s conduct. If [QLS] proves that [JPM] gave [QLS] authority to act on [its] behalf, then [QLS] was [JPM]'s agent. This authority may be shown by words or may be implied by the parties' conduct. This authority cannot be shown by


the words of [QLS] alone. (emphasis added) QLS’ discovery responses provide no facts on which to base the claim

they were acting on behalf of “the beneficiary” when filing the NOD. QLS

stated in their Opposition to Plaintiff’s Motion to Compel Production of

Documents and Further Responses to Admissions and Interrogatories Filed

with the Court Feb. 6, 2013 [Pg 3 ln20]: “More importantly, Quality’s

counsel explained that Quality had produced its entire file concerning the

subject property and regardless of whether the Plaintiff approved of the

documents produced or not, there were no other documents to produce.” In

short, there are no documents identified naming QLS and either JPM,

FNMA, LPS, or McCarthy & Holthus that define an agency relationship.

Discovery efforts by Plaintiff that allowed opportunity for QLS to

present documents establishing agency were obstructed by the trial court.

[Mtn Cmpl QLS (amended) Admission #7]

So how could QLS be an agent of “the beneficiary” when documents

from Respondents show a conflict of multiple beneficiaries and trustee

when the NOD was filed, and an “assignment” to JPM from FNMA

exhibits an execution date weeks after the NOD was filed?

7.) Does substantial evidence contradict the trial court’s ruling that the

‘original’ promissory note was presented at Appellant’s deposition as a

‘permissible lay opinion’ over Appellant’s objection?

“If a party can provide a copy of a loan document upon request, it is a reasonable inference that the party has possession of the original. (FAC, paragraph 75.)” [CT3: Pg5 Ln19]

In the instant case “upon request” was not satisfied within the statutory


limits, causing Appellant to stop making payments or risk affirming an

illegitimate debt. “Reasonable inference” is not an equivalent for facts, it is

a rationalization for lack of facts, particularly in light of the contradictory

facts that the Note was “unavailable in paper format” in correspondence

from Respondents that was substantiated by Respondents’ own business

records stating it never received the Note [CH47: Exh “E” Pg 1 “iVault

Info”; Pg2 ln3]. The trial court’s reaction to this contradiction was to deny

Appellant discovery of records explaining the circumstances of the

‘reconstituted’ Note.

“Further, plaintiff was presented with an original promissory note … at his deposition, and he acknowledged that the signature on those documents appeared to be his” (citations)

The document in question was surreptitiously introduced as “a variable rate

note” at Appellant’s deposition, and no phrase “original promissory note”

was used in any of Counsel’s statements for FNMA / JPM of what was

presented or said at Appellant’s deposition. The unspecific phrase used by

Counsel was ‘original loan documents’. The trial court’s use of “an” to

describe a singular item, the only original promissory note for the Subject

Loan, creates doubt as to exactly what “loan document” it is referring to.

Furthermore, “Statements of counsel in their briefs or argument while

enlightening to the Court are not sufficient for purposes of granting a

motion to dismiss or summary judgment.” [Trinsey v. Pagliaro D.C. Pa.

1964, 229 F. Supp. 647] A contradicting lay opinion by counsel for QLS

present at the same deposition described it as a copy of the promissory note

[CT20: Pg 5 ln3]. Clearly it is not a “… clear and unequivocal admission

made by the party referred to in D’Amico v. Board of Medical Examiners


(1974) when Appellant stated he “… wouldn’t swear that that [proffered

document] is not a copy…”. [CT14: 1 Pg 16 ln 12]

8.) Does substantial evidence contradict the trial court’s finding that

Appellant attested to his signature?

Q: “And I will ask you, Mr. Perry, if that’s your signature? A: “That is an accurate representation of my signature, and it seems to be in a blue ink, and it also seems really consistent in the amount of pressure, so I wouldn’t swear that that is not a copy, but, yes, it does appear to be my signature.” [CT14: ¶ 2; Exh 1, Pg16] … Q: (different loan document) ”Is that your signature, sir?” A: “Yes, that appears to be my signature, but again with the same objection. It really doesn’t show pressure points of someone that made a handwritten signature, so … yeah, with with that objection.” [Ibid Pg17 ln8]

Appellant objected (overruled by the trial court) that the statement was

taken out of context. [CT46: [¶¶ 15 - 18]14 and [CT44: #17b].

“On review, the appellate court looks to the record to see if there are

facts to support the trial court or jury's findings. …. Rather, the court must

examine the entire record to determine whether a triable issue of fact

exists.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510).

Clearly it is not a “… clear and unequivocal admission” referred to in

D’Amico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716 , 86

Cal.Rptr. 245 .

This ruling contradicts the uncontested fact that Defendants’ own

evidence indicated FNMA did not possess the Note before the notice of

14 Plaintiff mis-numbered the Chavez statement in his opposition to summary judgment and it is correctly identified here


default was filed, nor produced any discovery of requested business records

corroborating beneficial interest in the Subject Loan. Appellant was denied

the right to compel presentation of those documents by the trial court’s

action of denying Appellant’s motions to compel documents from

Respondents, and withholding that ruling to the point that Appellant had

less than 2 days to incorporate that ruling into the multiple summary

judgment motions the court scheduled for the same date on its own motion.

On the date the trial court ruled on its motion for scheduling it denied

Appellant’s request to set out the trial date15.

Plaintiff pointed out that if there was a transfer of the beneficiary

interest from FNMA to JPM, together with the note, there was no evidence

of a TILA notification to the borrower of such a transfer as a result of

Appellant’s discovery efforts and the trial court’s denial of compulsion of

such evidence.

9.) Was Appellant denied due process by the trial court relinquishing

decisions on motions to compel discovery to a ‘discovery facilitator’?

The trial court mandated parties attend discovery facilitation for a

program that was to be compulsory several weeks later. The ‘facilitator’

provided an unsigned ‘agreement’ and findings the trial court adopted as its

ruling to deny Appellant motions to compel discovery.

Respondents’ request for relief failed to the extent they sought

discretionary relief under CCP § 473(b). A party who seeks relief under §

15 No record of hearing available due to court cutbacks of availability of recorded hearings and failure to accommodate indigent and insolvent parties as a consequence of the denial of due process


473 on the basis of mistake, inadvertence, or general neglect must

demonstrate that such mistake, inadvertence, or general neglect was

excusable. In determining whether the party’s mistake or inadvertence was

excusable, the court inquires whether 'a reasonably prudent person under

the same or similar circumstances' might have made the same error.

Conduct falling below the professional standard of care, such as failure to

timely object or to properly advance an argument, is not therefore

excusable. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th

249, 258. The only question is whether there is at least “slight evidence” of

excusable neglect. See Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th

681, 696. Appellant would point out that this was the period when

Respondents JPM and FNMA were preparing their motion for summary

judgment. No specific finding is available as to which reason was given by

either the ‘facilitator’ or the trial court.

The facilitator program is not consistent among the several counties and

their Superior Courts, affecting rights of parties, and the cut-off date for

mandatory participation in the program had not passed at the time it was

ordered by the trial court’s own motion. Further argument is presented in

Plaintiff’s NOTICE AND MOTION FOR RECONSIDERATION OF

ORDER RE: PLAINTIFF’S AMENDED MOTIONS TO 1) COMPEL

FURTHER PRODUCTION OF DOCUMENTS, AND FURTHER

RESPONSES TO FORM AND SPECIAL INTERROGATORIES FROM

JP MORGAN CHASE BANK NA AND FEDERAL NATIONAL

MORTGAGE ASSOCIATION (SET 2); AND FROM QUALITY LOAN

SERVICE CORP (SET 1)


2) ORDER ADMISSIONS DEEMED ADMITTED FROM FEDERAL

NATIONAL MORTGAGE ASSOCIATION (SET 2); REQUEST FOR

SANCTIONS filed and served May 21, 2013 (vacated by action of the

Court July 8, 2013 without notice to parties).

10.) The Court erred in its decision regarding Plaintiff’s objection to

judicially noticed documents of Defendants.

Nos. 12-14: moot. The Court has taken judicial notice of the

recorded documents. (TR 5-23-13)

Although

“A court may also take judicial notice of facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h).)”,

in terms of assignments of mortgages with deeds of trusts not requiring

public recording, there is no reasonable indisputable accuracy available to

discover unrecorded assignments according to the judicial activists ruling in

Calvo that deed of trust loans are not “other encumberancers” and are

exempt from Civ. Code ¶2932.5.

“In Herrera, the Substitution of Trustee recited that Deutsche Bank

"is the present beneficiary under" the 2003 deed of trust. This fact

was hearsay and disputed. Therefore, the trial court could not take

judicial notice of it. Poseidon Development, Inc. v. Woodland Lane

Estates, (2007) 152 Cal.App.4th 1106. Nor would taking judicial

notice of the Assignment of Deed of Trust establish that the

Deutsche Bank was the beneficiary under the deed of trust. A

recitation that JPMorgan Chase Bank is the successor in interest to


Long Beach Mortgage Company, through Washington Mutual, is

hearsay.

As in Herrera, Plaintiff disputed the truthfulness of the contents of the

recorded documents, particularly the alleged assignment to FNMA.

Although the Declarant for FNMA / JPM spoke to the business records of

JPM, he did not mention similar competence of the business records of the

original lender and FNMA, and therefore the decision applied in Herrera

would apply to his knowledge of the alleged assignment of the Subject

Loan from the original lender to FNMA, rendering subsequent transfers in

the chain of title inadmissible. And finally, Declarant noted there may be

facts “… based on information and belief” presented in his declaration but

did not identify them.

Furthermore, Plaintiff did not learn until the afternoon the day before

opposition to the motions for summary judgment were due that his motion

to compel was denied that sought the very business records Declarant was

‘interpreting’ would not be made available to Plaintiff by the Court’s

actions.

To set the legal stage Plaintiff found himself as a party, this court

should bear in mind the acceptance of judicial notice of ‘evidence’ from an

internet source presented by FNMA / JPM in their supplemental request for

judicial notice to the summary judgment served with their reply by regular

mail (for a hearing scheduled for May 23, 2013) to which the court

responded

The JP Morgan defendants filed a request for judicial notice with their

reply papers on May 17, 2013. The request is granted [CT3]


and the denial of judicial notice of similar sources presented by Plaintiff

Excerpt of Pg 27 of the FDIC Compliance Manual [Section V] (Dec.

2012) found at

http://www.fdic.gov/regulations/compliance/manual/pdf/V-1.1.pdf

concerning 12 C.F.R. §1026.39 (TILA requirement of notifying

borrower of change of lender)

to which the trial court responded

Request No. 2 is denied. Plaintiff has failed to furnish the Court with

sufficient information to enable it to take judicial notice of this

document, or document fragment. (Cal. Evid. Code, §453.) Also,

plaintiff has failed to establish the relevance of this document; the FAC

does not state a cause of action for breach of the federal Truth In

Lending Act.

Both documents were presented with respect to the issue of federal

preemption of Cal. Civ. Code §2943 requirement to produce a true copy of

the promissory note to confirm the title affecting powers of the beneficiary /

“note holder”. Neither document should have been noticed to conform with

the ruling of Jolley v. Chase Home Fin., LLC., 213 Cal. App. 4th 872

(2012): Substantive information and contents of documents taken from

websites, even “official” government websites, do not deserve judicial

notice under California evidentiary rules, even where there are no factual

disputes over the content or substance of the documents.

But the very odd thing is that a prudent man can go to the

fanniemae.com website and download a Deed of Trust form (3005w) that


concludes with the following clause:

25. Statement of Obligation Fee. Lender may collect a fee not to

exceed the maximum amount permitted by Applicable Law for

furnishing the statement of obligation as provided by Section 2943

of the Civil Code of California.

And a prudent man would then wonder why such a clause is necessary if it

is preempted by federal law?

11.) The Court erred in its decision that a single beneficiary was properly

identified.

“In fact, plaintiff submits as part of his own opposition evidence a

trustees’ sale guaranty showing defendant JP Morgan as being the deed

of trust beneficiary of record. (CT48: Exhibit “C.”)”

In actuality the document referred to also identified and noted as a conflict

that both an investor, with equal rights of a beneficiary, was identified

simultaneously “so it is uncertain who declared a default”. (CT46: #11), to

which the trial court responded

No. 11: overruled. The declarant is competent to interpret defendants’

business records, and plaintiff has conceded that he stopped making

payments on his loan” […to a pretender lender who could not comply

with California’s implementation of the UCC-3 legal right of

presentment and provide a copy of his promissory note.] “(FAC,

paragraph 23); plaintiff’s arguments go to the weight or legal

significance of the evidence, and not to its admissibility. [existing

content inserted]

Incredibly the Court was able to distinguish, yet failed to name in its ruling,


which of the two beneficiaries declared a ‘default’, and which of the two

beneficiaries elected to pursue non-judicial foreclosure proceedings

(perhaps by naming each other as agents of each other) from a contract that

specified a single beneficiary or subsequent “note holder”.

12.) The Court erred in its decision to consider the Fourth cause of action

in light of the First, Second, and Third causes of action.

Resolution of the Fourth cause of action is precedent to determining the

remaining causes of action.

The Court mistook Plaintiff’s reference to TILA as a cause of action

where the intent was not to claim damages, but rather to show that

Defendants did not believe they were legitimate holders of title of the

Subject Loan because they did not comply with Federal law in effect at the

time to notify borrower of a change of “note holder”, e.g., from FNMA to

JPM. See (15 U.S.C. § 1641(g)).

13.) Did the trial court deny Appellant due process by allowing new

significant argument regarding diversity jurisdiction of the court in a reply

to a summary judgment motion?

The court should take note that §2943 self-repealed Dec. 31, 2013. It

was re-enacted effective Jan. 1, 2014, and the same provisions affecting this

case regarding protection of property title by identifying beneficial identity

and interest are restored. Why would the state legislature not have taken the

opportunity to remove those portions that were preempted by federal law?

Defendants raised the issue of federal preemption in their responses to

Plaintiff’s motions to compel discovery by citing irrelevant California

Appellate cases. None of them dealt with conveyance and warranty of clear


title and identity of beneficiary.

At the hearing to compel discovery of April 18, 2013, the trial court

provided no tentative ruling, took oral arguments16, rescheduled both

summary judgments for the same day, refused to delay the trial date, and

stated it would mail parties its decision. Judgments on the discovery

motions were filed on April 26, 2013, post marked on April 30, and

received by Plaintiff the afternoon of May 1, 2013, the day before the

deadline to file Opposition for simultaneous motions for summary

judgment. Although a plaintiff wishing “to rely upon unpleaded theories to

defeat summary judgment” must move to amend the complaint before the

hearing (see Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th

1693, 1699, 39 Cal.Rptr.2d 65; see also 580 Folsom Associates v.

Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18, 272 Cal.Rptr.

227.) Appellant, facing multiple motions for summary judgment, was

denied this opportunity by the delayed service by regular mail of the trial

court’s ruling.

At the summary judgments hearing of May 23, 2013, Plaintiff raised the

issue that the Court’s decision on his discovery motions was not presented

in a tentative ruling17, making the hearing for the motions one of unfair

surprise for an elder pro se litigant, and the delay in serving parties caused

undue hardship to Plaintiff. To this the Court responded with the following:

16 Transcript unavailable due to removal of audio recording of court hearings and prohibition of personal recording devices in the courthouse 17 The ruling was simply “Parties must appear. Parties are ordered to meet and confer in person prior to Court hearing” for all 4 motions


The Court has noted plaintiff’s statements that the Court is guilty of

“interference” by taking certain discovery motions under submission,

and plaintiff’s insinuation that the Court deliberately timed its ruling on

those motions so that plaintiff would not receive the ruling until the day

his opposition papers were due. (See Part D of plaintiff’s objections to

the evidence submitted by defendant QLS.) The Court has previously

admonished plaintiff concerning the penalties for contempt of court,

and so admonishes plaintiff again

14.) Plaintiff requested Defendants to produce and identify the common

business documents showing their vault custodians either transferred the

original promissory note to a subsequent beneficiary, or received the

original promissory note, or sent or received bailee letters in its stead.

This may affect the “unclean hands” claim by Appellant if felony forgery

is indicated by a lack of such records in light of there being no “lost or

destroyed” claims made by Respondents. Furthermore, Plaintiff objected to

the notice of assignments under Herrera, retaining his right of review as a

question of facts presented therein.

The reason for this request is the fact Defendants did not comply with

Appellant’s QWR to provide a contemporary copy of the promissory note

as a determination of an interest of title held by the deed of trust trustee. As

such, they are tortfeasors under Appellant’s cause of action for violation of

§2943, and subject to actual, punitive, and exemplary damages. Again, due

process was denied Appellant by the Court by disallowing rebuttal

argument to a question of standing raised by Respondents in summary

judgment motion and changed in their reply. Appellant tried but failed to


impress the point upon the Court that questions of title and tort are exempt

from federal preemption of banking laws.

Plaintiff sees the abdication of the discovery requests to a “discovery

facilitator” by the Court as a violation of his due process beyond the

discretion of a judge.

ARGUMENT I. FAILURE TO PROVIDE STATEMENT OF DECISION IS

REVERSIBLE ERROR Plaintiff presented the following text in his request to be heard on the

tentative ruling

Plaintiff is putting the Court on notice that he will be asking the court to provide the factual determination of the amount of money Fannie Mae paid to the original lender for the Subject Loan, and the amount of money JP Morgan paid to Fannie Mae for the Subject Loan as a question of standing as a party with equitable interest to the action. Plaintiff needs the courts determination on these facts, and the pleadings in which they were found, to present to the Appeallate [sic] Court.

The Court’s response to this request was given at the hearing

Mr. Perry, the communications we got from you indicated that you wanted to address a number of issues that are not part of the tentative ruling or, frankly, the issues that I think are relevant to this proceeding; so I'm going to ask you to limit your comments to any comments about the tentative ruling and the issues raised in the motion as opposed to some others. And I can tell you that some of the areas that you indicated in your communication you wanted to cover today are clearly outside of that. (fn Transcript Pg4 ln 2 – 11)

As a result of these opening remarks, Appellant advised the Court of its

defect in its tentative ruling by reasserting his request for statement of

decision as a statement of question at the closing of his remarks

“And that led me to my second toughest question which is -- I'll state


it differently. There is no evidence that any amount greater than zero has been paid for the subject loan by either of the defendants and so there is no equitable interest that they can show as a result. And that question of the equitable interest raises that to a point of law as a point -- as opposed to a question of equity.” (fn Transcript Pg21 ln 18 – Pg22 ln 2)

Civil Code Procedure §632, §634 state:

In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at trial. §634. When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.

When a party requests a statement of decision, it must be prepared, and

the failure to do so is reversible error. [Citations.]” (Whittington v.

McKinney (1991) 234 Cal.App.3d 123, 127.)

Section 632 must be read in conjunction with California Rules of Court,

rule 3.1590, which governs the procedure for issuance of a statement of

decision. “On the trial of a question of fact by the court, the court must

announce its tentative decision by an oral statement, entered in the minutes,

or by a written statement filed with the clerk.” (Cal. Rules of Court, rule

3.1590(a).) The rules require that the trial court announce an intended

decision rather than making a final order or judgment to give a party an


opportunity to request a statement of decision to address the principal

controverted issues. (Id., (d).).

II. RESPONDENTS HAVE SHOWN NO HARM BY APPELLANT’S ACTIONS AND THE COURT HAS NO JURISDICTION TO AFFORD THEM EQUITABLE RELIEF

Of the 527 discovery pages delivered to Appellant none show any

amount greater than zero exchanged for the sale or purchase of the Subject

Loan, despite specific discovery requests. Denied the support of the trial

court for such documents, it is impossible for Appellant to determine which

of several possibilities – a third party payoff with waiver of subrogation

(TARP), foreclosure default insurance (AIG), special endorsee write-off for

tax claim for loss; a private purchase that has been mis-filed; … reflect

reality. What remains as a fact is there are no accounting business records

of either FNMA or JPM corroborating they hold or held beneficiary interest

to affect title by foreclosure by payment of ‘consideration’ greater than

zero. What remains as a fact is despite the statements on the assignments

from the original lender to FNMA and from FNMA to JPM that the Note

was transferred there are only business records depicting FNMA never

received the Note, making it uncertain how it could transfer what it did not

possess.

III. APPELLANT’S APPLICATION OF §2943 IS NOT PREEMPTED AS IT AFFECTS NEIGHER SERVICING NOT LENDING.

In Medrano RESPA provision 12 U.S.C. § 2605(e) requires a servicer to

timely respond to a borrower’s “qualified written request” (QWR). A QWR

must include the name and account of the borrower and either a statement

that the borrower believes the account to include an error (listing the


reasons for believing such), or a request for specific information described

with sufficient detail. Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687

(7th Cir. 2011). Additionally, any information sought must relate to the

servicing of the loan. [12 U.S.C. § 2605(e)(1)(A)-(B)]. RESPA defines the

term “servicing” to encompass only “receiving any scheduled periodic

payments from a borrower pursuant to the terms of any loan, including

amounts for escrow accounts . . . , and making the payments of principal

and interest and such other payments.” [12 U.S.C. § 2605(i)(3)] “The

statute thus distinguishes between letters that relate to borrowers’ disputes

regarding servicing, on the one hand, and those regarding the borrowers’

contractual relationship with the lender, on the other.” Medrano v. Flagstar

Bank, FSB (2012), 704 F. 3d 661.

Questions regarding anything that preceded the servicer’s role (like

questions about the loan origination, terms, or validity) do not qualify as

servicing.

There is provision under TILA [15 U.S.C. § 1641(f)(2)]18 that provides

“Upon written request by the obligor, the servicer shall provide the obligor,

to the best knowledge of the servicer, with the name, address, and

telephone number of the owner of the obligation or the master servicer of

the obligation.” A full reading of the statute leads to the conclusion the duty

to provide notice under §1641(f)(2) applies to a servicer-assignee, which in

this case includes Chase Home Loan Finance, LLC, when the QWRs were

18 In 2009 Congress added subsection (g), which requires that “not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer …”


sent. See Gale v. First Franklin Loan Servs. (2012). This would likely

preempt Plaintiff’s request for a ‘beneficiary statement’ found in §2943, but

not the contract validity aspects of the request for a copy of the promissory

note.

To a prudent man it would appear that TILA and RESPA preemption

would only apply to servicing, and a question of beneficiary interest from a

perspective of its affecting title to a property without severely adversely

affecting lending activities would not be subject to federal preemption. This

was the application Plaintiff made of the tort cause of action found in Cal.

Civ. Code §2943.

IV. THIS CASE IDENTIFIES A LEGAL BASIS FOR AN ACTION TO CHALLENGE DEFENDANTS’ AUTHORITY TO INITIATE NON-JUDICIAL FORECLOSURE.

Unlike Jenkins19, the contract language both authorizes and obligates

the borrower to question the authority of a beneficiary who attempts to

slander the clear title to the Subject Property.

Appellant requested a QWR under §2943 before a NOD was recorded to

which Respondents did not return a copy of the Note with its endorsements

within the statutory limits, forcing Appellant to cease making payments in

order not to affirm an illegitimate obligation. Respondents subsequently

caused a notice of default to be recorded. The plain language of the Deed of

Trust provides for such a challenge, and requires language to that effect

which is missing in the NOD.

• Meaning of Contract Ascertained From 4 Corners of Instrument Where contract language is clear and explicit and does not lead to an absurd result, a court will ascertain contractual intent from the

19 Jenkins v. JP Morgan Chase Bank, N.A., (2013) Cal App 4th (G046121)


written provisions of the contract itself and go no further. ( Cal.Civ. Code §§ 1638, 1639.)

• Words Used Given Their Ordinary Meaning

The words of a contract generally are to be understood in their ordinary and popular sense unless the parties use them in a technical sense or a special meaning is given to them by usage. (§1644.)

V. RECENT DEVELOPMENTS There has been a spate of national agreements against parties named in

this action by the states to prevent states from violating their laws regarding

real property foreclosures.

For all we know the payments were laundered to fund terrorist

activities20.

SUMMARY The trial court did not see it as ‘substantial facts’ that the assignment

relied upon by Respondents stated a transfer of the Note occurred from the

original lender, yet the transferee was unable to provide a copy of the Note;

their own computer records showed they never received it; a special

endorsement (undated) on the back of a copy of the Note was unrecorded

with the county, stamped ‘canceled’, and another endorsement (undated) in

blank was stamped below.

The trial court points to the out of context phrase “it does appear to be

my signature’, as a copy of a document might depict as was alluded to at

the beginning of the sentence – “That is an accurate representation of my

signature …”. Respondents’ counsel were very careful not to use the

20 There is a reason why Respondent JP Morgan Chase Bank NA made a legal settlement with the states for $13,000,000,000 since the filing of intent to appeal, and declared a quarterly loss this year in part due to a set-aside of $7,000,000,000 to increase the reserve for foreclosure litigation to $23,000,000,000.


phrase “original note” under penalty of perjury, but used “original loan

documents” and “a variable rate note” in the declaration to give the

appearance that they possess the authenticated original promissory note. At

the deposition the document was introduced to as “an adjustable rate note”.

Likely that is why the counsel for QLS in attendance stated it was not the

original, but a copy of the Note that was presented to Appellant.

Respondents do not refute that they did not respond to Appellant’s

QWR with a copy of the Note within the statutory time, and attack it with

an argument of federal preemption. The federal decisions and California

decisions based on federal decisions do not relate to the state’s right to

guarantee clear title, but rather, the payment of principle, interest, and fees.

Respondents present no federal statute that allow for a request for a copy of

the note which is necessary to account for title affecting endorsements. As a

result, that aspect of §2943 is real estate and tort law and exempt from

federal preemption.

The remaining ‘facts’ come from an affidavit of a professional witness

who is ambiguous about which statements are based on personal

knowledge, such as business records of an assignment over 20 years ago,

and which are hearsay.

In short, Respondents FNMA and JPM do not present incontrovertible

facts sufficient to support a motion for summary judgment.

It stands to reason that a property subject to auction will bring a lower

bid if title to it is clouded, so a credit bid by a last minute lender is more

likely to prevail. To that end the title has been slandered and the NOD is

void.


In this case the court denied Appellant’s discovery motion to compel

documents showing business records of the purchase and sale of the

Subject Loan by Respondents [CT56], and none were present among the

527documents Respondents provided in discovery. None of the provided

documents depict an account receivable loan level payment to the

transferee of the alleged assignment from the original lender.

As it stands in the California legal arena today, a prudent man is

expected to agree to give up their home on notice by parties unknown to

their copy of the contract due to an untraceable chain of interest unrecorded

with the county, unconfirmed by their loan servicers, and have to pay over

$500 to file an action to recover $300 if a beneficiary refuses to identify

themselves from a §2943 QWR because the federal laws have no practical

enforcement of clear title.

DATED: December 15, 2013 Respectfully submitted,

__________________________

Leighton Lee Perry, Appellant


CERTIFICATE OF COMPLIANCE

Pursuant to rule 8.204(c) of the California Rules of Court, I hereby

certify that this brief contains __13617__ words, including footnotes. In

making this certification, I have relied on the word count of the computer

program used to prepare the brief.

By _____________________ Leighton Lee Perry Plaintiff / Appellant