Perry v. JPMorgan Chase Bank N.A. et al 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEIGHTON LEE PERRY, Plaintiff, vs. JP MORGAN CHASE BANK N.A.

; CHASE HOME FINANCE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP.; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1-100, Inclusive, Defendant. Case No. MSC10-02914
Leighton Lee Perry

Case # MSC10-02914

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA

REPLY TO OPPOSITION TO AMENDED MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES TO INTERROGATORIES TO FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET TWO) DECLARATION OF PLAINTIFF LEIGHTON LEE PERRY Judge: Dept: Date: Time: Hon. Laurel S. Brady 31 April 18, 2013 9:00 a.m.

Plaintiff Leighton Lee Perry submits this Reply to Defendant Federal National Mortgage Associations Opposition to Plaintiffs Amended Motion to Compel Production of Documents and Further Responses to Interrogatories (Opposition). Plaintiffs Amended Motion to Compel etc., was filed against Federal National Mortgage Association (FNMA) on April 2, 2013 as a result of the courts order to enter into discovery facilitation combined with the continuance of the unopposed motion, over Plaintiffs objection, to the hearing at hand. Plaintiff requests the Courts indulgence in his failure to attach a copy of the discovery Facilitators findings and recommendations as he was overwhelmed with the production of amending
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four discovery motions for a single hearing when he had so carefully filed original motions to allow time to produce pleadings given his capabilities. For the same reasons Plaintiff apologizes for not tabbing his exhibits. Plaintiff acknowledges the findings and recommendations of Defendant FNMA are correct, and in the interest of saving paper defers from producing yet another copy of superfluous flotsam. I. DISCUSSION

A. Uncertainty of Subject of the Opposition Plaintiff objects to the form of Opposition to his AMENDED MOTION TO ORDER ADMISSIONS DEEMED ADMITTED BY DEFENDANT FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET TWO) for failure to follow the rules and cite the set of discovery that is the subject of the opposition. See RC 3.1345 (d) Identification of interrogatories, demands, or requests [A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.] Defendants counsel, Joanne C. Chan, states I am competent to testify of my own personal knowledge, to the best of my recollection, as to the matters set forth in this Declaration, then gives a different date from her other Opposition as to when the SET TWO discovery requests were served on her client, let alone explain her recollection of a court hearing to which she was not a party where counsel for FNMA and Plaintiff stipulated before the Court to extend the date to receive responses to SET TWO in order for Plaintiff to retain his right of objection by motion to compel past the period set for discovery facilitation. A letter from Ms. Chans office shows the stipulated date as April 18, 2013 (see EXHIBIT A). Ms Chan is half correct regarding her proof of claim in that it is possible Plaintiff has not mailed copies to them; however the court docket reflects such proof of service was filed and no motion to quash service was filed. So when Ms. Chan boldly states that Plaintiff withdraws this motion to compel and points to a mis-titled document that is unsigned by Plaintiff, it would seem her Declaration lends minimal credibility to her Opposition. B. Late Filing of Pleadings The 45-day cutoff was set to expire just days after the original hearing, and Plaintiff was heard by the court regarding a continuance of the motion for summary judgment and an agreement was made by parties to stipulate to extend the date to receive responses for all parties so Plaintiff would not waive his right of objection to amended responses. That date was stipulated to as April 18, 2013. The filing
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date of the amended discovery motions falls before that date. The cut-off date for mandatory discovery facilitation was weeks after the original motion, and in the week before and following the original hearing judges in the same courthouse were ruling on motions to compel and deem admitted. At the hearing on the original motion to compel the Court on its own motion ordered parties to attend discovery facilitation, and parties agreed to a continuation schedule proposed by the Court. Plaintiffs amended motion, to account for the facilitation, was delayed a few days waiting for findings and recommendations from the Facilitator. Even under the best case the continuation for this hearing did not allow proper time for facilitation and service of motion, and so Plaintiff implores the court to tolerate parties tardiness. This request does not include the Opposition at hand that was filed April 10 and received by Plaintiff on April 12, 2013 and should be disregarded. C. Recommendations of Facilitator Are Not Binding Plaintiff thanks Ms. Ferber for her time and patience, and the Court should note that several requests were dropped from the amended motion as a result of the facilitation effort. FNMA cites no legal basis for the Court to rule on facilitation in the same manner as binding arbitration. No documents produced by the Facilitator, Michelle Ferber, cited a single legal reference to justify the decisions she pronounced at the facilitation meeting. There was no opportunity for Plaintiff to prepare a response beforehand. After the hearing Plaintiffs slower mind had a chance to review what happened, perceived the injustice, and refused to sign when he saw that the product of the Facilitator included no legal references to substantiate her recommendations. Plaintiff simply followed the rules that seem to confuse opposing counsel so much, and amended / supplemented his motion to account for the interruption of his original motion. D. Relevancy As a result of the recent Calvo v HSBC1 decision ruling that assignments of deed of trust loans do not have to be recorded with the counties, courts can no longer presume that judicially noticed documents referencing such recordings provide indisputable facts regarding the complete chain of beneficiary interest. The sole remaining sources of corroborating evidence of the chain of beneficiary
Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR3d 815

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interest of Plaintiffs Subject Loan are the common business records of Defendants named and unnamed requested as classes in Plaintiffs discovery requests. Defendant improperly questions the relevancy of producing those records under their control when their entire defense rests on an incomplete chain of beneficiary interest of noticed documents to which Plaintiff has consistently objected as to their veracity. Furthermore, their single document memorializing the alleged transfer from FNMA to JP Morgan Chase Bank NA states no amount greater than zero as the consideration documented in the recorded Assignment. Therefore the question of law regarding FNMAs standing as a party remains as they have not shown they suffer damages from any interest in, or from any action by, Plaintiff with his Subject Loan. A credit bid amount is not a cash transaction. Plaintiff would point out he is doing FNMA a favor because it is incumbent upon them to prove their interest in the Subject Property in the Quiet Title cause of action, and right now they have an unrecorded special endorsement to Federal Home Loan Savings Bank San Francisco that breaks their chain of beneficiary interest. So why would a prudent man presume they paid anything for the Subject Loan? E. Sanctions The Opposition does not address the sanctions for causing a Motion to Compel to be filed as a result of not filing verification until after the motion to compel was filed. Plaintiff has incurred printing, court, and service costs as a result of FNMAs actions and should be entitled to recover those costs. As the Opposition points out, the stated goal of Defendants is to make the 45-day waiver of objection their defense instead of providing the facts that Plaintiff is entitled to. FNMAs verification was filed within 4 days of that window closing Plaintiff is trying to play by the rules, and is remiss in not naming the individual attorneys for sanctions as the rules dictate, but notes there is the name of a new attorney on the Opposition that Plaintiff could not know since no Substitution of Attorney was filed, and the court in the past has seemed to condone these actions of Defendants in this regard. So Plaintiff respectfully requests the Court determine who are the responsible attorneys and dispense sanctions accordingly. Plaintiff also requests an additional award of $70 for printing and service costs to present this amended motion.
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II.

CONCLUSION The question that brings the necessity of filing this motion into focus can come down to this if

that piece of paper being presented as the original note is as authentic and valuable as Defendants counsel claims, where, specifically, in the evidence asked for and returned, is the bailee letter allowing opposing counsel to possess it? Exhibit B is the form of the letter FNMA used in 1996 if it will help Defendants identify the document sought2. The even bigger question is, how can FNMA declare a default against the Subject Loan if it has no loan level accounting records, as asserted in their discovery responses? In the event the Court rules for FNMA and decides there are no further relevant records available, and no records have been identified by FNMA showing details of Plaintiffs payments, then the Court might well reconsider its decision of Plaintiff making payments in lieu of bond to a party that is Chartered by the National Bank Act and has no apparent accounting systems for loan level accounts. For these reasons above Plaintiff reiterates his request for production of business records relevant to the accounting for, and possession of, Plaintiffs loan. The Court can consider the amended motion as unopposed with good discretion and order further responses without objections. Here, where you have an obvious inducement to breach a contract and a senior citizen is most vulnerable, the reprehensible acts by Defendants to take advantage by financial and legal chicanery should allow the light of discovery to shine upon their deeds.

Repectfully submitted, Dated: April 15, 2013 ___________________ LEIGHTON LEE PERRY Plaintiff pro se

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Form was taken from internet URL: www.fanniemae.com/content/guide_form/e_xi.6.doc

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PAGE 1 OF 1 1.)

Case # MSC10-02914

DECLARATION OF PLAINTIFF LEIGHTON LEE PERRY I, Leighton Lee Perry, declare as follows: I am the Plaintiff in this case. I am competent to testify of my personal knowledge, to the best of

my recollection, as to the matter set forth in this Declaration and Reply to Opposition of Amended Motion to Compel Production and Further Responses to Interrogatories to Defendant Federal National Mortgage Assn to which this Declaration is attached.
2.) 3.) 4.) 5.) 6.)

Original requests for discovery SET TWO were served November 13, 2012. Unverified responses were served December 21, 2012. Verification for the responses was served after FNMA received the original motion to compel. FNMA filed a Motion for Summary Judgment January 25, 2013. At the hearing of February 28, 2013 on the original motion parties agreed to stipulate to

extending the date for responses for all defendants to a common date. After the hearing Plaintiff proposed March 15 to Defendants over the course of several emails and FNMA agreed to April 18, 2013. (see EXHIBIT A)
7.)

All other Oppositions were filed April 8, 2013. On April 9, Plaintiff sent emails to Mr. Chavez

and Ms. Chan about the missing Opposition. No reply was returned. This Opposition was filed April 10, and the delivery notice shows it was sent to the courier on April 11, and was received by Plaintiff at approximately 11:00 am April 12, 2013. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Declaration was executed in Martinez, CA on February 20, 2013.

Dated: April 15, 2013

___________________ LEIGHTON LEE PERRY Plaintiff pro se

Declaration of Plaintiff in Support of Reply to Opposition to Amended Motion to Compel FNMA

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1 of Discovery Extension EXHIBIT A Confirmation Page 1 of 1

Case # MSC10-02914

Exhibit XI-6

Form of Bailee Letter (Warehouse Bank) (MBS/DUS) FORM OF BAILEE LETTER (WAREHOUSE BANK) (MBS/DUS)

Federal National Mortgage Association [insert address for Fannie Mae as specified in Part IV, Section 301 of the DUS Guide] Re: Fannie Mae DUS Commitment Contract No.: _______ Borrower: ____________________________________ Unpaid Principal Balance of Note as of ____________, 19 : $_____________________ Date of Note: _________________________________ Project Location: ______________________________

Ladies and Gentlemen: In compliance with the requirements of the Delegated Underwriting and Servicing Guide and the above referenced loan Commitment Contract (the "Commitment"), [insert name of DUS Lender] (the "DUS Lender") has requested that [insert name of warehouse bank] (the "Bank") deliver to Federal National Mortgage Association ("Fannie Mae") the original Multifamily Note (the "Note") evidencing the captioned loan, together with originals of certain other documents indicated in the Table of Contents for Mortgage Loan Delivery Package (the "Additional Documents") with respect to such loan. By this letter the DUS Lender and the Bank advise Fannie Mae that the DUS Lender has granted a security interest in the Note and Additional Documents to the Bank. The Bank warrants to Fannie Mae that the Bank has not (a) assigned or transferred the Note and Additional Documents to any other party or (b) recorded its security interest in such Note and Additional Documents. During the period in which Fannie Mae holds the Note and Additional Documents as bailee, as described below, the Bank will not assign or transfer the Bank's interest in such Note and Additional Documents or record such security interest. Fannie Mae holds the Note and Additional Documents as bailee for the benefit of the Bank until (i) Fannie Mae delivers the Mortgage Backed Security (as defined below) by wire transfer in accordance with the delivery instructions specified on Form 2014, a copy of which is attached, or (ii) Fannie Mae returns to the Bank, as set forth below, the Note and any Additional Documents delivered by the Bank. The Bank agrees that the Bank's security interest in the Note and Additional Documents shall terminate and be cancelled without further action upon delivery by Fannie Mae of the Mortgage Backed Security as described in (i) above. In the event that Fannie Mae does not issue the security in exchange for the Note, Fannie Mae will execute and deliver to the Bank an assignment, in recordable form, of the Mortgage (Deed of Trust) securing the Note and will endorse the Note in blank but without recourse (assuming the Note has been endorsed to Fannie Mae); and the Bank agrees that Fannie Mae's status as bailee for the Bank shall terminate and be cancelled without further action upon delivery to the Bank of the Note (endorsed as aforesaid) and Additional Documents, as described in (ii) above, together with such executed assignment of the Mortgage (Deed of Trust).

Fannie Mae DUS Guide 09/03/96 EXHIBIT B

FORM OF BAILEE LETTER - FNMA

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[Insert name and address of warehouse bank]

Case # MSC10-02914

The "Mortgage Backed Security" means the Fannie Mae Guaranteed Mortgage Pass-Through Certificate in the amount that Fannie Mae, pursuant to the Commitment and the Delegated Underwriting and Servicing Guide, agrees to pay in consideration for the Note. The Bank and the DUS Lender recognize and agree that the amount of the Mortgage Backed Security may be less than the full principal amount of the Note, and that the DUS Lender may have paid or advanced other funds to Fannie Mae in connection with the Commitment that are not included in the Mortgage Backed Security. The Bank and the DUS Lender agree that the standard of care to be exercised by Fannie Mae in holding the Note and Additional Documents shall be to exercise the same degree of care and skill as Fannie Mae exercises when it holds mortgage loan documents on its own behalf. The Bank and the DUS Lender understand that Fannie Mae is a bailee only and is not a representative, trustee or fiduciary or otherwise an agent, of or for the Bank or the DUS Lender with respect to the Note and the Additional Documents. The DUS Lender has submitted Mortgage Backed Security delivery instructions to Fannie Mae on Form 2014, a copy of which is attached. No change in such instructions shall be requested by the DUS Lender, without the consent of the Bank, and no change shall be honored by Fannie Mae unless the Bank has consented to such change. Delivery of the Mortgage Backed Security by Fannie Mae pursuant to such instructions is acceptable to the Bank and will suffice to terminate the Bank's security interest as described above. In recognition of the security interest held by the Bank in the Note and Additional Documents and Fannie Mae's status as bailee with respect thereto unless and until Fannie Mae has delivered the Mortgage Backed Security as described above, the Note and Additional Documents shall not be delivered by Fannie Mae to a third party. In the event that Fannie Mae does not purchase the Note, the Note and Additional Documents should be returned to the Bank no later than seventy-five (75) days after the date of delivery of the Note to Fannie Mae, to the address set forth below:

It is understood that delivery by the Bank to Fannie Mae (and by Fannie Mae to the Bank, if the Note and Additional Documents are not purchased) is without warranty, except as expressly stated herein, and without recourse.

If you have any questions please contact the undersigned, whose telephone number is Very truly yours,
[Insert name of warehouse bank]

21 22 23 24 25 26 27 28 By: ____________________________ Title: ____________________________ Date: _____________________________ PROOF OF SERVICE

REPLY TO OPPOSITION TO AMENDED MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTHER RESPONSES TO INTERROGATORIES TO FNMA (SET TWO)

By: Title: Date:

_____________________________ [name] _____________________________ _____________________________

Attachment (Form 2014) Agreed: [Insert name of DUS Lender]