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In re
Chapter 11 Case
Allana Baroni,
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Reorganized Debtor.
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15 ALLANA BARONI,
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Plaintiff,
v.
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NATIONSTAR MORTGAGE, LLC,
19 PLATINUM CAPITAL GROUP, AURORA
BANK, FSB, AURORA COMMERCIAL
20 CORP., AURORA LOAN SERVICES, INC.,
21 LEHMAN BROTHERS HOLDINGS, INC,
STRUCTURED ASSET SECURITIES
22 CORP., and WELLS FARGO BANK, N.A.
AS TRUSTEE FOR STRUCTURED
23 ADJUSTABLE RATE MORTGAGE LOAN
TRUST MORTGAGE PASS-THROUGH
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CERTIFICATES, SERIES 2004-5
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Defendants.
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RECORD: NOTICE IS GIVEN that the Reorganized Debtor, Allana Baroni (Plaintiff or
"Debtor") will and does respectfully Submit for consideration by this Court and parties in interest,
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so as to move and have heard by this Court on August 26, 2016, at 1:30pm, this NOTICE OF
MOTION AND MOTION FOR LEAVE TO FILE PLAINTIFFS SECOND AMENDED
incorporated by Fed.R.Civ.P. 16, made on the grounds set forth herein, in supplemental pleadings,
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during oral arguments and on the grounds that The United States Supreme Court, and the Ninth
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Circuit have repeatedly reaffirmed that leave to amend is to be granted with "extreme liberality.
NOTICE IS FURTHER GIVEN that in accordance with the Local Rules of this Court,
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16 should any party wish to oppose this Motion, they must do so by written opposition filed and
17 served upon counsel for Plaintiff not less than fourteen (14) days from the date noticed for the
18 hearing of this Motion, and failure to do so may be deemed a waiver of any opposition which may
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have been made, resulting in entry of an order granting the within Motion.
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c. That the Second Amended Complaint be deemed the amended pleading, and that it be
deemed filed and served as of the date the motion is granted.
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By:____________________
Richard Antognini, Esq.
Attorneys for the Plaintiff and Reorganized Debtor
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TABLE OF CONTENTS
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4 I. PRELIMINARY STATEMENT......................................................................................5
5 II. INTRODUCTION...........................................................................................................5-9
6 III. PROCEDURAL AND FACTUAL BACKGROUND................................................................97
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IV. ARGUMENT...................................................................................................................12-17
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V. CONCLUSION................................................................................................................17
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I.
PRELIMINARY STATEMENT
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On January 21, 2016, the Bankruptcy Court held a continued Status Conference where it
ordered the parties to submit a Joint Status Report outlining the scope of the remand from the
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Bankruptcy Appellate Panel ("BAP"), to include the parties position in connection with what the
Court is required to do as a result of the remand, and also to include the parties position on
8 whether additional discovery should be allowed, and if so, the scope of the additional discovery.
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In the Joint Status Report Plaintiff requested the Court issue a scheduling order allowing
During the most recent status conference held on April 29, 2016, the Court remarked that it
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would enter an order outlining the parameters of the remand. To date the Court has not issued the
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order. Therefore, out of an abundance of caution the Plaintiff files this Motion for Leave.
The Motion for Leave seeks to add facts, causes of action, and defendants who have been
16 identified in the chain of title relating to the debt instruments attached to Claim 9-1. Defendant's
17 conduct in the case has caused Plaintiff to seek the amendment, including:
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(1) Nationstar's failure to identify Wells Fargo Bank, N.A. as Trustee for SARM 2004-5 as
the true creditor until it filed for summary judgment after more than two years into the
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case;
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(2) Nationstar's failure establish the debt instruments were ever securitized into SARM
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2004-5;
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(3) Nationstar's failure establish Nationstar is an agent for SARM 2004-5; and
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(4) Nationstar's failure to demonstrate how the original Baroni promissory note could
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II.
INTRODUCTION
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Plaintiff respectfully moves the Court, pursuant to Federal Rules of Civil Procedure 15 and
16, for leave to file Plaintiffs Second Amended Complaint (SAC). The SAC pertains to Claim
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9-1, filed by Nationstar Mortgage, LLC ("Nationstar"), which identifies Nationstar as the creditor,
and the party to whom Plaintiffs Chapter 11 Plan payments are due.
Plaintiffs SAC, a true and correct copy of which is attached and incorporated by reference
9 as Exhibit 1, adds newly discovered facts, legal theories resulting from the summary judgment
10 and appellate proceedings, three claims for relief, additional factual allegations relating to
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Plaintiffs previously asserted claims, and seven Defendants - five of whom appear to be
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subsidiaries of the same parent company, but whose true relationship is unknown to Plaintiff
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16 Defendant Nationstar, but accounts for new information, new legal theories stemming from the
17 summary judgment and appellate proceedings, and significant factual and procedural
18 developments, that have occurred since the previous complaint was filed, including:
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(1) On September 17, 2012, Nationstar filed Claim 9-1 (the "Claim") putting forth
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Nationstar as a secured creditor. Nationstar maintained the Claim in its own name for over two
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years never asserting it was acting for another party. During the two year period from
23 approximately September 17, 2012 to September 23, 2014, Nationstar filed dozens of documents
24 in Plaintiff's main case and in the adversary proceeding on its own behalf asserting Nationstar is
25 the rightful and secured creditor of the Claim.
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(2) On September 24, 2014, two years into the case and upon the filing of its motion for
summary judgment, Nationstar changed its position and asserted it is not the actual creditor but
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1 rather it is acting as an agent for Wells Fargo Bank N.A. as Trustee for Structured Adjustable Rate
2 Mortgage Loan Trust, Mortgage Pass Through Certificates, Series 2004-5 ("SARM 2004-5").
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Nationstar maintained in its answer to the FAC that SARM 2004-5 is not the holder or investor of
the Baroni note, nor the assignee of the Deed of Trust.
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(3) In its Memorandum Decision in the matter the Bankruptcy Appellate Panel ("BAP")
held that Nationstar failed to establish that the Baroni Note was ever sold or transferred to SARM
8 2004-5, and failed to establish that Nationstar is the serving agent for SARM 2004-5 giving rise to
9 the issue that all the purported transfers in the chain of title asserted by Nationstar are not
10 authentic. Considering that Nationstar and SARM 2004-5 assert they have produced all
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documentation in connection with the sale and custody of the Baroni Note and Deed of Trust, the
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BAP findings put into question the entire chain of ownership of the Note, beneficial interest in the
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Deed of Trust and custody of the original Baroni Note and Deed of Trust.
(4) Throughout the bankruptcy case, adversary and appellate proceedings, Plaintiff, the
16 Court and the BAP, were provided with two materially inconsistent yet authenticated promissory
17 notes representing the same underlying mortgage debt encumbering Plaintiff's Property. The main
18 inconsistency between the notes concerns the indorsements. Essentially, Note #1, (the promissory
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note filed with Claim 9-1) contains three purported indorsements; a) an undated, stamped
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indorsement to blank allegedly executed by Lehman Brothers Holdings, Inc., b) an undated
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stamped indorsement to Lehman Brothers Holdings, Inc. allegedly executed by Lehman Brothers
23 Bank, FSB, and c) an undated indorsement to Lehman Brothers Bank FSB, purportedly executed
24 by Platinum Capital Group. Note #2, (the promissory note filed with Nationstar's motion for
25 summary judgment), contains three indorsements identifying the same parties, however these
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indorsements are positioned in a different order and location on the signature page than those
appearing on Note #1.
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For the first time after five years of inquiry, Nationstar informed the BAP during the
2 September 24, 2015, oral argument that the inconsistent indorsements were the result of multiple
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copying of the Baroni Note, to which the BAP responded that Nationstar was engaged in "magical
thinking." Nationstar then pivoted and asserted for the first time that the original Baroni Note had
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been "re-indorsed."
Attached to the SAC as "Exhibit 1" is the Claim containing Note #1, and attached to the
8 SAC as "Exhibit 2, is Note #2, as it was filed with Nationstar's motion for summary judgment,
9 and attached to the SAC as "Exhibit 3" is the BAP Memorandum Decision in connection with the
10 appellate proceedings.
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(5) Nationstar failed to inform this Court in the first instance, and the BAP on appeal that
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the indorsements appear on the back side of the original signature page, rendering "re13
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15 establishing the re-indorsement scheme, or under what circumstances the Baroni Note was re16 indorsed, or the date upon which the purported re-indorsement occurred, or that the signatories
17 authorized their signatures to be used to re-indorse the note twelve years after origination.
18 Nationstar's re-indorsement assertion calls into question the veracity of all six of the indorsements
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filed in the case as well as all purported underlying transactions connected to the Baroni Note.
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(6) Nationstar's 2015 vintage "re-indorsment" representation gives rise to the practice of
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warehouse fraud, whereby the same note is copied, endorsed and then sold to multiple buyers
23 garnering multiple recoveries for the same underlying mortgage debt as alleged in the SAC.
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(7) Nationstar's "re-indorsement" representation puts into question the authenticity of all
25 six indorsements filed in the case. The existence of all six indorsements impugns the veracity of
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each of the indorsements, causing Plaintiff to add defendants and causes of action to ascertain the
actual chain of title and identify the rightful secured claimant.
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(8) On July 9, 2015, an Assignment of the Deed of Trust was recorded in the Monterey
2 County Recorder's Office purporting to assign beneficial interest in the Deed of Trust from Aurora
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Commercial Corp to SARM 2004-5 (the "SARM 2004-5 Assignment"), eleven years after the
purported loan trust backing SARM 2004-5 was formed and could legally accept assets into the
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loan trust backing the SARM 2004-5 certificates. Nationstar failed to produce the SARM 2004-5
Assignment to Plaintiff or file it with the Court. It was only recently discovered by Plaintiff. Prior
8 to this assignment Aurora Commercial Corp. was not in the chain of the Baroni Debt Instruments.
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III.
PROCEDURAL AND FACTUAL BACKGROUND
On September 17, 2012, Nationstar filed Claim 9-1 putting forth Nationstar as a secured
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creditor. Attached to the Claim are Note #1 and the DOT.
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On January 10, 2013, the Debtor filed a FRBP 2004 motion requesting documents and the
15 oral examination of Nationstar (Nationstar 2004), with an order entered on January 11, 2013
16 (Nationstar 2004 Order).
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On March 8, 2013, the Debtor filed a Motion pursuant to Fed. R Bankr. P. 2004 for
18 Document Production and the Oral Examination of Wells Fargo Bank N. A. , with an order was
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entered on March 8, 2013 (Wells Fargo 2004 Order). Wells Fargo, which was later identified
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by Nationstar as the actual creditor, did not produce documents under the Wells Fargo 2004 Order
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Nationstar filed a Motion to Dismiss on its own behalf in connection with the original
Complaint that was scheduled to be heard on June 12, 2013. However, Plaintiff filed her FAC on
June 5, 2013. An Alias Summons was issued on June 11, 2013.
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On July 3, 2013, Nationstar filed a Motion to Dismiss the FAC, again on its own behalf.
Nationstar filed an Answer to the FAC on November 15, 2013, denying SARM 2004-5 is
the holder, investor, or assignee of the Debt Instruments.
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On September 24, 2014, Nationstar filed its Motion for Summary Judgment, changing
positions to assert it is an agent for SARM 2004-5. The Bankruptcy Court granted Nationstars
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Contract / Unjust Enrichment, and Violation of California Business and Professions Code Section
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17200 Et. Seq. The BAP affirmed summary judgment in connection with cause of action No. 3;
15 Violations of 15 U.S.C. 1692, et seq., and remanded this matter back to the Bankruptcy Court for
16 further proceedings.
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On January 19, 2016, the BAP entered its Mandate on Appeal, Adv. Doc. No. 127.
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On January 21, 2016, a status conference hearing was held with the Court ordering the
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parties to meet & confer and, by 3/3/16 and file a joint status report which also addresses the
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parties' respective positions on the issues concerning the scope of the remand identified by the
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24 the purposes of Michael S. Riley's pro hac vice status, resigned while Mr. Esbin was out of the
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On February 12, 2016, Plaintiff substituted Richard L. Antognini into the case and
adversary proceedings.
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On April 15, 2016, the parties filed their Joint Status Report (Adv. Doc. No. 143).
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Through the Joint Status Report the Plaintiff requested the Court issue a scheduling order
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allowing Plaintiff to amend the complaint to include SARM 2004-5 and all pertinent parties in the
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chain of title as defendants. The Court remarked that it would enter an order outlining the
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parameters of the remand and address the positions of the parties contained in the Joint Status
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During the April 29, 2016, "Baroni Day" proceedings, the Court continued the status
2 conference and all other continuing issues relating to Plaintiff's main case and associated
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This Motion for Leave follows the BAP proceedings and incorporates relevant parties,
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ARGUMENT
A.
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Plaintiff has met the standard for obtaining leave to file an amended complaint under
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Federal Rules of Civil Procedure 15 And 16.
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Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading "shall be
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17 freely given when justice so requires." The United States Supreme Court and the Ninth Circuit
18 have repeatedly reaffirmed that leave to amend is to be granted with "extreme liberality." DCD
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Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citation omitted); see, e.g., Foman
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v.Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962) (leave to amend should be freely given).
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The primary factors relied upon by the Supreme Court and the Ninth Circuit in denying a
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23 motion for leave to amend are "bad faith, undue delay, prejudice to the opposing party, and futility
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The Court has entered Omnibus Scheduling Orders governing the scheduling of all hearings on
25 matters pertaining to the Plaintiff and Reorganized Debtor in connection with the main case and associated
26 adversaries. The hearing dates, nicknamed "Baroni Day," are usually ordered approximately 30 days apart
and in some instances approximately 60 days apart. See Adv. Doc. No. 145, and Main Case Doc. No. 728.
27 The Motion for Leave is set for the next allowable Baroni Day, of August 26, 2016 (no Baroni Day was set
by the Court for July, 2016).
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1 of amendment." DCD Programs, 833 F.2d at 186. None of these factors are present in the instant
2 case.
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a.
DEFENDANTS WILL NOT BE DELAYED OR PREJUDICED
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The SAC does not change the nature of the lawsuit. The essence of the FAC and the SAC
is an objection to Claim 9-1. In any event, Nationstar's conduct has caused the requirement for the
8 amendment. Nationstar maintained the Claim in its own name for over two years, then switched
9 the identity of the creditor to SARM 2004-5 upon the filing for summary judgment, with
10 Nationstar purporting to now be a servicing agent, all while never amending the Claim to reflect
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the same. Meanwhile the BAP found that Nationstar did not establish SARM 2004-5 is the
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creditor nor that Nationstar is a servicing agent.
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Nationstar's moving target assertions of the identity of the creditor, and the five year delay
15 in explaining the six materially inconsistent indorsements to the Baroni Note have caused Plaintiff
16 to seek out the creditor through the amended complaint. Further, Nationstar's new "re17 indorsement" of the Baroni Note is unsubstantiated and not credible.
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The Court has not issued its order establishing the parameters of the remand, and where
the Omnibus Scheduling Order only allows hearings to be set approximately every 30 days and in
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some instances, approximately every 60 days, the Plaintiff is not causing undue delay. In fact,
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when her former counsel resigned, the Plaintiff moved very quickly to replace Mr. Esbin in the
23 face of a complex case encompassing the main bankruptcy case and five adversary proceedings.
24 Since the February 12, 2106, substitution of counsel, opposing counsel suggested the status
25 conference be continued from March 24, 2016, to April 29, 2016.
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It's relevant to note that Nationstar delayed the case for over two years with its hide-thecreditor tactics; it would be disingenuous for Nationstar to assert it is delayed by the filing of the
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1 SAC. Indeed, Nationstar has not propounded any discovery, scheduled any depositions, nor
2 provided any witness list.
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Nationstar has no motions pending before the Court. Moreover, as ordered by the Court,
Plaintiff continues to deposit sums required under her confirmed Chapter 11 Plan into the reserve
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account for the allowed class member of which Nationstar claims it is the rightful recipient.
Therefore, as a matter of law, both under the confirmed Chapter 11 Plan, but also pursuant to
8 California Civil Code Section 1500, the allowed class member is being tendered payments.
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Since the filing of the First Amended Complaint, Plaintiff has discovered new information,
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through the summary judgment and appellate proceedings, regarding the legitimacy, and secured
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status of Nationstars Claim. Including that the BAP held that Nationstar failed to established it is
15 the servicer and further failed to establish that the Baroni Note was ever transferred to SARM
16 2004-5. This information supports the addition of Defendants who purport to be parties to the
17 chain of title and securitization chain of SARM 2004-5.
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Further, as asserted in the SAC, after nearly five years of inquiry Defendants refused to
explain the six inconsistent indorsements. Then, during the September 24, 2015, oral argument in
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front the of the BAP,
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authenticated promissory notes are inconsistent as a result of the note being recopied. When the
23 BAP panel remarked that Nationstar is engaged in "magical thinking," Nationstar pivoted to then
24 represent to the BAP that the Baroni Note was actually, "re-indorsed." Nationstar failed to explain
25 to Plaintiff, and the BAP the circumstances under which the note was re-indorsed, the date the re26
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indorsement purportedly took place, and led the BAP to believe that the indorsements appear on
allonges rather than on the back side of the signature page.
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2 Plaintiff years ago under this Court's Fed. R. Bank. P. 2004 Orders, but yet were never produced.
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Nationstar's years-late "re-indorsement" representation violates this Court's FRBP 2004 Orders. If
there is only one original note, and it was re-indorsed as Nationstar asserts, then six indorsements
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8 Accounting, and Slander of Title, as well as Plaintiffs assertion of additional facts and details are
9 in support of its previous objection to Claim 9-1 and are supported by the BAP decision that
10 Nationstar nor SARM 2004-5 have been established as secured claimants. See Coilcraft, Inc. v.
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Inductor Warehouse, (Coilcraft) 2000 U.S. Dist. LEXIS 6097, *8-9 (no bad faith where plaintiff
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made "reasonable inquiry" into facts supporting new claims, introduced relevant evidence, and
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c.
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18 creditor of Plaintiffs estate. Through Nationstar's summary judgment pleadings and appellate
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proceedings, additional parties to the transactions have been identified in connection with
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Nationstar's assertions of the secured status of the Claim. Specifically, Nationstar asserts SARM
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2004-5 is the secured claimant, but never amended the Claim to reflect the same. Further, the BAP
23 held that Nationstar failed to establish the Baroni Note was ever transferred to SARM 2004-5.
24 Nationstar asserts it has already produced all documents in its care possession custody and control
25 in connection with the Baroni Note, with nothing more, the true secured creditor of the Claim has
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In sum, Plaintiffs Second Amended Complaint was filed in good faith, objects to Claim 9-
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futile. Consequently, none of the factors on which courts base denial of motions for leave to
amend are present here. Thus, Plaintiffs motion for leave should be granted.
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Federal Rule of Civil Procedure 16 (b)(4) provides that pretrial scheduling may be
9 modified for good cause and with the judge's consent, before, during or after trial with consent or
10 by leave of the Court. Furthermore, Plaintiff falls well within the liberal standard for freely
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allowing the amendment of pleadings. See Foman v. Davis, 371 U.S. 178, 182 (1962) (In the
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absence of . . . undue delay, bad faith or dilatory motive on the part of the movant . . . undue
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prejudice to the opposing party by virtue of allowance of the amendment . . . the leave sought
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The party seeking leave to amend need only establish the reason why amendment is
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required (justice so requires). Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 406-407 (11th
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Cir. 1989). The burden is then on the party opposing the motion to convince the court that
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justice requires denial. Id. In the present case, Plaintiff has established that the summary
23 judgment and appellate proceedings triggered the amendment in part, and that the SAC adds
24 newly discovered facts, legal theories resulting from the summary judgment and appellate
25 proceedings.
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1 position is to allow litigation to proceed on its merits. A case should, whenever possible, be
2 decided on its merits. United States v. Personal Signed Check no. 730, 615 F.3d 1085, 1091 (9th
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Cir. 2010)(quoting Falk v. Allen, 739 F.2nd 461, 461 (9th Cir. 1984).
V.
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CONCLUSION
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For the reasons discussed above, plaintiff respectfully seeks leave of this Court to file the
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c. That the Second Amended Complaint be deemed the amended pleading, and that it be
deemed filed and served as of the date the motion is granted.
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Dated: June 17, 2016
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I am special counsel to the Debtor, and have been admitted pro hac vice to appear before
this Court. I submit this Declaration in support of Plaintiff's motion for leave to amend the
adversary complaint. I have personal knowledge of the facts I am about to state and, if called on to
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Plaintiffs Second Amended Complaint ("SAC"), a true and correct copy of which is
9 attached and incorporated by reference as Exhibit 1, adds newly discovered facts, legal theories
10 resulting from the summary judgment and appellate proceedings, three claims for relief, additional
11 factual allegations relating to Plaintiffs previously asserted claims, and seven Defendants - five of
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whom appear to be subsidiaries of the same parent company, but whose true relationship is
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unknown to Plaintiff therefore they are separately named as Defendants.
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3.
The SAC maintains the claims for relief particularized in the previous complaint against
16 Defendant Nationstar, but accounts for new information, new legal theories stemming from the
17 summary judgment and appellate proceedings, and significant factual and procedural
18 developments, that have occurred since the previous complaint was filed, including:
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(1) On September 17, 2012, Nationstar filed Claim 9-1 (the "Claim") putting forth
Nationstar as a secured creditor. Nationstar maintained the Claim in its own name for over two
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years never asserting it was acting for another party. During the two year period from
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approximately September 17, 2012 to September 23, 2014, Nationstar filed dozens of documents
24 in Plaintiff's main case and in the adversary proceeding on its own behalf asserting Nationstar is
25 the rightful and secured creditor of the Claim.
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(2) On September 24, 2014, two years into the case and upon the filing of its motion for
summary judgment, Nationstar changed its position and asserted it is not the actual creditor but
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1 rather it is acting as an agent for Wells Fargo Bank N.A. as Trustee for Structured Adjustable Rate
2 Mortgage Loan Trust, Mortgage Pass Through Certificates, Series 2004-5 ("SARM 2004-5").
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Nationstar maintained in its answer to the FAC that SARM 2004-5 is not the holder or investor of
the Baroni note, nor the assignee of the Deed of Trust.
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(3) In its Memorandum Decision in the matter the Bankruptcy Appellate Panel ("BAP")
held that Nationstar failed to establish that the Baroni Note was ever sold or transferred to SARM
8 2004-5, and failed to establish that Nationstar is the serving agent for SARM 2004-5 giving rise to
9 the issue that all the purported transfers in the chain of title asserted by Nationstar are not
10 authentic. Considering that Nationstar and SARM 2004-5 assert they have produced all
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documentation in connection with the sale and custody of the Baroni Note and Deed of Trust, the
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BAP findings put into question the entire chain of ownership of the Note, beneficial interest in the
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Deed of Trust and custody of the original Baroni Note and Deed of Trust.
(4) Throughout the bankruptcy case, adversary and appellate proceedings, Plaintiff, the
16 Court and the BAP, were provided with two materially inconsistent yet authenticated promissory
17 notes representing the same underlying mortgage debt encumbering Plaintiff's Property. The main
18 inconsistency between the notes concerns the indorsements. Essentially, Note #1, (the promissory
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note filed with Claim 9-1) contains three purported indorsements; a) an undated, stamped
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indorsement to blank allegedly executed by Lehman Brothers Holdings, Inc., b) an undated
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stamped indorsement to Lehman Brothers Holdings, Inc. allegedly executed by Lehman Brothers
23 Bank, FSB, and c) an undated indorsement to Lehman Brothers Bank FSB, purportedly executed
24 by Platinum Capital Group. Note #2, (the promissory note filed with Nationstar's motion for
25 summary judgment), contains three indorsements identifying the same parties, however these
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indorsements are positioned in a different order and location on the signature page than those
appearing on Note #1.
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For the first time after five years of inquiry, Nationstar informed the BAP during the
2 September 24, 2015, oral argument that the inconsistent indorsements were the result of multiple
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copying of the Baroni Note, to which the BAP responded that Nationstar was engaged in "magical
thinking." Nationstar then pivoted and asserted for the first time that the original Baroni Note had
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been "re-indorsed."
Attached to the SAC as "Exhibit 1" is the Claim containing Note #1, and attached to the
8 SAC as "Exhibit 2, is Note #2, as it was filed with Nationstar's motion for summary judgment,
9 and attached to the SAC as "Exhibit 3" is the BAP Memorandum Decision in connection with the
10 appellate proceedings.
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(5) Nationstar failed to inform this Court in the first instance, and the BAP on appeal that
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the indorsements appear on the back side of the original signature page, rendering "re13
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15 establishing the re-indorsement scheme, or under what circumstances the Baroni Note was re16 indorsed, or the date upon which the purported re-indorsement occurred, or that the signatories
17 authorized their signatures to be used to re-indorse the note twelve years after origination.
18 Nationstar's re-indorsement assertion calls into question the veracity of all six of the indorsements
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filed in the case as well as all purported underlying transactions connected to the Baroni Note.
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(6) Nationstar's 2015 vintage "re-indorsement" representation gives rise to the practice of
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warehouse fraud, whereby the same note is copied, endorsed and then sold to multiple buyers
23 garnering multiple recoveries for the same underlying mortgage debt as alleged in the SAC.
24
(7) Nationstar's "re-indorsement" representation puts into question the authenticity of all
25 six indorsements filed in the case. The existence of all six indorsements impugns the veracity of
26
27
each of the indorsements, causing Plaintiff to add defendants and causes of action to ascertain the
actual chain of title and identify the rightful secured claimant.
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(8) On July 9, 2015, an Assignment of the Deed of Trust was recorded in the Monterey
2 County Recorder's Office purporting to assign beneficial interest in the Deed of Trust from Aurora
3
4
Commercial Corp to SARM 2004-5 (the "SARM 2004-5 Assignment"), eleven years after the
purported loan trust backing SARM 2004-5 was formed and could legally accept assets into the
5
6
7
loan trust backing the SARM 2004-5 certificates. Nationstar failed to produce the SARM 2004-5
Assignment to Plaintiff or file it with the Court. It was only recently discovered by Plaintiff. Prior
8 to this assignment Aurora Commercial Corp. was not in the chain of the Baroni Debt Instruments.
9 On September 17, 2012, Nationstar filed Claim 9-1 putting forth Nationstar as a secured creditor.
10 Attached to the Claim are Note #1 and the DOT.
11
12
4.
On January 10, 2013, the Debtor filed a FRBP 2004 motion requesting documents and the
oral examination of Nationstar (Nationstar 2004), with an order entered on January 11, 2013
13
14
15 5.
On March 8, 2013, the Debtor filed a Motion pursuant to Fed. R Bankr. P. 2004 for
16 Document Production and the Oral Examination of Wells Fargo Bank N. A. , with an order was
17 entered on March 8, 2013 (Wells Fargo 2004 Order). Wells Fargo, which was later identified
18 by Nationstar as the actual creditor, did not produce documents under the Wells Fargo 2004 Order
19
20
6.
The
21
22
23 7.
Nationstar filed a Motion to Dismiss on its own behalf in connection with the original
24 Complaint that was scheduled to be heard on June 12, 2013. However, Plaintiff filed her FAC on
25 June 5, 2013. An Alias Summons was issued on June 11, 2013.
26
27
8.
On July 3, 2013, Nationstar filed a Motion to Dismiss the FAC, again on its own behalf.
28
21
Case 1:13-ap-01069-MB
1 9.
Desc
Nationstar filed an Answer to the FAC on November 15, 2013, denying SARM 2004-5 is
10.
On September 24, 2014, Nationstar filed its Motion for Summary Judgment, changing
positions to assert it is an agent for SARM 2004-5. The Bankruptcy Court granted Nationstars
5
6
7
8 12.
9 Relief / Determine The Nature, Extent and Validity of Lien FRBP 7001 828 U.S.C. 2201, Quasi
10 Contract / Unjust Enrichment, and Violation of California Business and Professions Code Section
11
17200 Et. Seq. The BAP affirmed summary judgment in connection with cause of action No. 3;
12
Violations of 15 U.S.C. 1692, et seq., and remanded this matter back to the Bankruptcy Court for
13
14
further proceedings.
15 13.
On January 19, 2016, the BAP entered its Mandate on Appeal, Adv. Doc. No. 127.
16 14.
On January 21, 2016, a status conference hearing was held with the Court ordering the
17 parties to meet & confer and, by 3/3/16 and file a joint status report which also addresses the
18 parties' respective positions on the issues concerning the scope of the remand identified by the
19
20
15.
On or about January 28, 2016, Louis Esbin, Plaintiff's lead counsel and local counsel for
21
22
the purposes of my pro hac vice status, resigned while he was out of the country.
23 16.
On February 12, 2016, Plaintiff substituted Richard L. Antognini into the case.
24 17.
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1
2
3
4
5
6
7
8
9
10
11 18.
On March 21, 2016, the Court entered an order continuing the status conference to April
On April 15, 2016, the parties filed their Joint Status Report (Adv. Doc. No. 143).
14
Through the Joint Status Report the Plaintiff requested the Court issue a scheduling order
15
allowing Plaintiff to amend the complaint to include SARM 2004-5 and all pertinent parties in the
16
chain of title as defendants. The Court remarked that it would enter an order outlining the
17
18
parameters of the remand and address the positions of the parties contained in the Joint Status
During the April 29, 2016, "Baroni Day" proceedings, the Court continued the status
21 conference and all other continuing issues relating to Plaintiff's main case and associated
22
23
24
25
26
\\\
\\\
27 \\\
28 \\\
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1 21.
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This Motion for Leave follows the BAP proceedings and incorporates relevant parties,
I declare under penalty of perjury of the laws of the United States that the foregoing is true.
Executed on June 19, 2016 at Los Angeles, California.
/s/ Michael S. Riley
Michael S. Riley
8
9
10
11
12
13
14
15
16
17
18
19
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Case 1:13-ap-01069-MB
EXHIBIT 1
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11 In re
12 Allana Baroni,
Reorganized Debtor.
13
14
15
ALLANA BARONI,
16
Plaintiff,
17 v.
18 NATIONSTAR MORTGAGE, LLC,
PLATINUM CAPITAL GROUP, AURORA
19 BANK, FSB, AURORA COMMERCIAL
CORP., AURORA LOAN SERVICES, LLC.,
20
LEHMAN BROTHERS HOLDINGS, INC,
21 STRUCTURED ASSET SECURITIES
CORP., and WELLS FARGO BANK, N.A.
22 AS TRUSTEE FOR STRUCTURED
ADJUSTABLE RATE MORTGAGE LOAN
23 TRUST MORTGAGE PASS-THROUGH
24 CERTIFICATES, SERIES 2004-5
25
26
27
28
Defendants.
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TABLE OF CONTENTS
1
2
I.
NATURE OF ACTION...................................................................................................3-8
3
4
A. Origination............................................................................................................11-13
B. The Notes...............................................................................................................13-16
10
11
12
20
21
22
23
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Allana Baroni ("Plaintiff " or "Baroni") hereby files her REORGANIZED DEBTOR'S
5
6
7
8 TRIAL (Complaint, SAC, or Adversary) to allege, state, plead, and contend against in
9 Objection to Claim No. 9-1 against Nationstar Mortgage, LLC, Platinum Capital Group, Aurora
10 Bank, FSB, Aurora Commercial Corp., Aurora Loan Services, LLC, Lehman Brothers Holdings,
11
Inc. Structured Asset Securities Corp., and Wells Fargo Bank N.A. as Trustee for Structured
12
Adjustable Rate Mortgage Loan Trust, Mortgage Pass Through Certificates, Series 2004-5, the
13
14
following:
15
I.
16
NATURE OF ACTION
17 1.
This action seeks a declaration from the Court as to the identity of the rightful owner of
18 the promissory note ("Baroni Note"), and beneficiary of the deed of trust ("DOT) attached to
19
20
Claim 9 -1 (the "Claim), filed in Baroni's main bankruptcy case, (together the Debt
Instruments), to determine the secured status of the Claim, and what, if any, amounts are due
21
22
23 2.
Plaintiff is informed and believes and therefore alleges that the Baroni Note is not secured by her
24 property located at 3435 Rio Road, Carmel, CA, 92923 (the "Property"), that Nationstar Mortgage,
25 LLC ("Nationstar") the creditor identified on the Claim, does not hold a secured claim against
26
27
Plaintiff's estate, nor is Nationstar is the agent for a creditor entitled to payments from Plaintiff,
and that any purported post origination assignments of the Debt Instruments are void.
28
3
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1 3.
Desc
Throughout the bankruptcy case, adversary and appellate proceedings, Plaintiff, the Court
2 and the United Sates Bankruptcy Appellate Panel of the Ninth Circuit ("BAP"), were provided
3
4
with two materially inconsistent yet authenticated promissory notes representing the same
underlying mortgage debt encumbering Plaintiff's Property. The main inconsistency between the
5
6
7
notes concerns the indorsements. Essentially, Note #1, (the promissory note filed with Claim 9-1)
contains three purported indorsements; a) an undated, stamped indorsement to blank allegedly
Note #2, (the promissory note filed with Nationstar's motion for summary judgment), contains
12
three indorsements identifying the same parties, however these indorsements are positioned in a
13
14
different order and location on the signature page than those appearing on Note #1. Nationstar
15 failed to inform the Court, and the BAP, that the indorsements appear on the back side of the
16 signature page of the Baroni Note, rather than on allonges. Attached hereto as "Exhibit 1" is the
17 Claim containing Note #1, and attached hereto as "Exhibit 2, is Note #2, as it was filed with
18 Nationstar's motion for summary judgment, and attached hereto as "Exhibit 3" is the BAP
19
20
4.
After nearly five years of inquiry Defendants refused to explain the inconsistent
21
22
indorsements. Then, during the September 24, 2015, oral argument in front the of the BAP,
23 Nationstar represented that the indorsements appearing on the two authenticated promissory notes
24 are inconsistent as a result of the note being recopied. When the BAP panel remarked that
25 Nationstar is engaged in "magical thinking," Nationstar pivoted to then represent to the BAP that
26
27
the Baroni Note was actually, "re-indorsed." Nationstar failed to explain to Plaintiff, and the BAP
the circumstances under which the note was re-indorsed, the date the re-indorsement purportedly
28
4
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1 took place, and led the BAP to believe that the indorsements appear on allonges rather than on the
2 back side of the signature page.
3
4
5.
Plaintiff years ago under this Court's Fed. R. Bank. P. 2004 Orders, but yet were never produced.
5
6
7
Nationstar's years-late "re-indorsement" representation violates this Court's FRBP 2004 Orders. If
there is only one original note, and it was re-indorsed as Nationstar asserts, then six indorsements
Plaintiff alleges that the original Baroni Note was never "re-indorsed." Plaintiff alleges that
10 copies of the note were created and indorsed for an improper purpose, including to be sold to
11
multiple buyers garnering numerous recoveries for the same underlying debt.
12
7.
Plaintiff alleges that the Baroni Note was never securitized or received by the trustee of a
13
14
15 8.
Plaintiff alleges that the very existence of the six indorsements, compounded by
16 Defendants representation that the original note was "re-indorsed," impugns the veracity of all the
17 indorsements. Plaintiff alleges that the signatures appearing on the indorsements are not authentic,
18 that the signatories never executed or approved their signature's use on the indorsements, and that
19
the signatories had no personal knowledge of the indorsements, or any underlying documentation.
20
In sum, the Plaintiff challenges every aspect of the six alleged indorsements to the Baroni Note.
21
22
9.
Plaintiff alleges that the six unauthenticated purported indorsements appearing on Note #1
23 and Note #2 are undated and appear in a different order, rendering it impossible to discern the
24 order in which the indorsement occurred. Defendants' document production under the Court's
25 Orders failed to establish the dates on which the indorsements, and "re-indorsements" allegedly
26
27
occurred. Plaintiff therefore alleges, that no discernible valid chain of indorsements exists, and that
the Baroni Note is not a bearer instrument validly indorsed to blank.
28
5
Case 1:13-ap-01069-MB
1 10.
Desc
At the outset of this matter in the venue of the bankruptcy court, and for years after,
2 Nationstar took the position that it was the creditor of the Debt Instruments -- the party to whom
3
4
the debt is owed. Nationstar filed and maintained the September 17, 2012, Claim in its own name,
and supported its position by filing dozens of documents with the Court on its own behalf in
5
6
7
Plaintiff's main bankruptcy case and adversary proceeding, never asserting it was acting for
another party. Realizing that it cannot overcome the defects in the Claim, or satisfy the standard for
8 becoming a bona fide purchaser of the Debt Instruments, Nationstar changed tactics. On September
9 24, 2014, over two years into the case, Nationstar filed its motion for summary judgment on
10 Plaintiff's first amended complaint, and for the first time in the case asserted that it is actually a
11
servicing agent for Wells Fargo Bank N.A. as Trustee for Structured Adjustable Rate Mortgage
12
Loan Trust, Mortgage Pass Through Certificates, Series 2004-5 ("SARM 2004-5"). The Claim
13
14
15 11.
In conflict with Nationstar's September 24, 2014, assertions on summary judgment wherein
16 SARM 2004-5 is put forth as a secured claimant, is the purported December 12, 2011, Assignment
17 of the Deed of Trust executed by Mortgage Electronic Systems Inc. in favor of Aurora Bank, FSB, and
18 recorded with the Monterey County Recorder's Office on March 2, 2012, as Instrument No.
19
2012013286 ("Aurora Assignment"). On May 10, 2013, Nationstar requested the Court take
20
judicial notice of the Aurora Assignment representing to the Court that Aurora Bank FSB, is the
21
22
beneficiary of the Deed of Trust at the time of summary judgment, and during the BAP appellate
23 proceedings.
24 12.
Plaintiff alleges that the Aurora Assignment is void, that the transactions purportedly
25 memorialized on the document never transpired, and that the assignment was created for an
26
27
28
6
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1 15, 2013, answer to Plaintiff's first amended complaint wherein it denied that SARM 2004-5 is a
2 holder, investor, or assignee of the Debt Instruments.
3
4
14.
On May 10, 2013, Nationstar filed a motion to dismiss Plaintiff's complaint, wherein it
failed to disclose that it was acting for SARM 2004-5 or any other entity. In fact, during the two-
5
6
7
year period of September 17, 2012, to September 23, 2014, Nationstar filed numerous documents
in Plaintiff's main bankruptcy case and adversary proceeding representing to the Court and to
8 Plaintiff that Nationstar is the true and rightful creditor. Although Nationstar changed positions on
9 September 24, 2014, to assert that it is not the creditor but actually an agent of SARM 2004-5,
10 Nationstar never amended or sought to amend its previously filed, inaccurate, and misleading
11
filings.
12
15.
On July 9, 2015, an Assignment of Deed of Trust was recorded in the Monterey County
13
14
Recorder's Office as Instrument No. 20150377317 purporting to assign all beneficial interest in the
15 Deed of Trust from Aurora Commercial Corp. to SARM 2004-5 (the "SARM Assignment").
16 Plaintiff alleges that the assignment is void, that the transactions purportedly memorialized on the
17 document never transpired, that Aurora Commercial Corp. had no authority to assign assets to
18 SARM 2004-5 on July 9, 2015, that such assignment to SARM 2004-5 eleven years after the
19
purported formation of SARM 2004-5 is in contravention to the documents that allegedly govern
20
SARM 2004-5, and that the assignment was created and recorded for an improper purpose, namely
21
22
23 16.
Plaintiff alleges that the Defendants concealed their true practices of selling the Debt
24 Instruments to multiple buyers garnering numerous recoveries on the same underlying Debt
25 Instruments, and further concealed their failure to securitize the Debt Instruments, and ultimately
26
27
failed to disclose the true relationships between the parties. Defendants continue to cloak their
practices through filings with this Court, filings with the Monterey County Recorder's office, and
28
7
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II.
3
4
THE PARTIES
17.
Baroni is the Reorganized Debtor, and an individual residing the County of Los Angeles,
5
6
7
CA.
18.
8 California with its principal place of business at 350 Highland Drive, Lewisville, Texas 75067. On
9 September 17, 2012, Nationstar Mortgage, LLC filed Claim9-1 in Plaintiff's main bankruptcy case
10 asserting a secured claim in its own name against Plaintiff's estate. On September 24, 2014,
11
Nationstar pivoted to assert it is actually a servicing agent for Wells Fargo Bank N.A as the owner
12
of the Debt Instruments, in its capacity as Trustee for Structured Adjustable Rate Mortgage Loan
13
14
15 19.
Platinum Capital Group is the Lender identified on the promissory note and deed of trust
16 attached to Claim 9-1. Platinum Capital Group is, a corporation organized under the laws of the
17 State of California, located at 17101 Armstrong Avenue, Suite 200, Irvine, California.
18 20.
19
Aurora Bank FSB, is a federal savings bank chartered by the Office of the Comptroller of
the Currency, headquartered in Wilmington, Delaware, doing business in California with its
20
principal offices located at 10350 Park Meadows Dr. Littleton, CO 80124. Aurora Bank FSB, is
21
22
identified as the beneficiary of the DOT on December 12, 2011, in the records of the Monterey
25 10350 Park Meadows Dr. Littleton, CO 80124 and doing business throughout the State of
26
27
California. Aurora Loan Services, LLC put itself forward as the loan servicer of the Debt
Instruments from approximately March 2004 through approximately January 2012.
28
8
Case 1:13-ap-01069-MB
1 22.
Desc
Aurora Commercial Corporation is a Delaware corporation doing business in California with its
2 principal offices located at 1271 Avenue of the Americas, New York, New York 10020. Aurora
3
4
Commercial Corporation is identified as the beneficiary of the DOT on July 9, 2015, in the
records of the Monterey County, CA Office of the Recorder.
5
6
7
23.
Lehman Brothers Holdings, Inc ("LBHI") is a Delaware Corporation doing business in the
state of California with offices located at 745 7th Ave. New York, NY 10019. On September 15,
8 2008, LBHI filed a petition in the United States Bankruptcy Court for the Southern District of
9 New York commencing a case and, collectively with the Chapter 11 cases of each of its affiliated
10 entities. LBHI is identified on two undated indorsements to the Baroni Note; one appearing on
11
12
24.
13
14
California with offices located 745 Seventh Avenue, 7th Floor New York, NY 10019. Defendant
15 Nationstar represents that LBHI sold the Baroni Note to Structured Asset Securities Corporation
16 post origination.
17 25.
Wells Fargo Bank N.A. is a national banking association doing business in California with
18 its corporate headquarters located at 420 Montgomery Street San Francisco, California 94163.
19
Upon filing for summary judgment on September 24, 2014, in connection with Plaintiff's First
20
Amended Complaint, Defendant Nationstar indentified Wells Fargo Bank N.A as the owner of the
21
22
Debt Instruments, in its capacity as Trustee for Structured Adjustable Rate Mortgage Loan Trust,
///
///
28
9
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1
III.
3
4 25.
This Court has jurisdiction over this Adversary Proceeding, pursuant to 28 U.S.C. 157
5 and 1334, in that it arises in or is related to the Case and to Claim No. 9-1 filed by Defendant
6 Nationstar in the Case. This Adversary is a "core proceeding" under 28 U.S.C. 157(b)(2).
7
26.
Venue of this Adversary is proper, under 28 U.S.C. 1408 and 1409, in that it arises in or
8
relates to the Case, which is presently pending in the United States Bankruptcy Court for the
9
10
11
IV.
12
13 27.
On September 17, 2012, Nationstar filed Claim 9-1 identifying Nationstar as a secured
14 creditor. Attached to the Claim are Note #1, and the DOT.
15
16
28.
On January 10, 2013, the Debtor filed a FRBP 2004 motion requesting documents and the
oral examination of Nationstar (Nationstar 2004), with an order entered on January 11, 2013
17
18
19 29.
On March 8, 2013, the Debtor filed a Motion pursuant to Fed. R Bankr. P. 2004 for
20 Document Production and the Oral Examination of Wells Fargo Bank N. A., with an order was
21 entered on March 8, 2013 (Wells Fargo 2004 Order). Wells Fargo Bank N. A. - the party
22
23
identified by Nationstar as the true creditor - did not produce documents under the Wells Fargo
2004 Order and refused to appear for its oral examination.
24
25
26
30.
27
28
10
The
Case 1:13-ap-01069-MB
1 31.
Desc
Nationstar filed a Motion to Dismiss the original Complaint on its own behalf, that was
2 scheduled to be heard on June 12, 2013. Plaintiff filed her FAC on June 5, 2013. An Alias
3
4
On July 3, 2013, Nationstar filed a Motion to Dismiss the FAC, again on its own behalf.
5
6
7
Nationstar filed an Answer to the FAC on November 15, 2013, denying SARM 2004-5 is
On September2 4, 2014, Nationstar filed its Motion for Summary Judgment, changing
10 positions to assert it is an agent for SARM 2004-5. The Bankruptcy Court granted Nationstars
11
12
35.
36.
The BAP reversed summary judgment on three of the four causes of action, Declaratory
13
14
15 Relief / Determine The Nature, Extent and Validity of Lien FRBP 7001 828 U.S.C. 2201, Quasi
16 Contract / Unjust Enrichment, and Violation of California Business and Professions Code Section
17 17200 Et. Seq. The BAP affirmed summary judgment in connection with cause of action No. 3;
18 Violations of 15 U.S.C. 1692, et seq., and remanded this matter back to the Bankruptcy Court for
19
further proceedings.
20
37.
This amended complaint follows the BAP proceedings and incorporates relevant parties,
21
22
23
V.
24
GENERAL ALLEGATIONS
25
26
27
A. Origination.
38.
Platinum Capital Group ("Platinum") is identified as the Lender on the Baroni Note and
DOT. However, it has been disclosed to Plaintiff, including in response to Plaintiff's requests
28
11
Case 1:13-ap-01069-MB
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1 under the Real Estate Settlement Procedures Act 12 U.S.C. 2605 ("RESPA"), that Platinum did
2 not actually lend or advance any amounts to the Baronis. The loan was funded in escrow by
3
4
Also provided to Plaintiff in response to requests made under RESPA in November 2010,
5
6
7
were the loan documents in connection with the Debt Instruments, purportedly executed by
Plaintiff's husband, James Baroni. However, the following documents were not executed by James
8 Baroni, his signatures appearing thereon are forgeries, and in some instances, the documents were
9 never executed in the first instance:
10
11
12
b. Servicing Disclosure Statement;
13
14
15
16
17
18
19
20
i. Request for Copy or Transcript of Tax Form #4507;
21
22
23
24
25
26
27
28
12
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5
s. Good Faith Estimate Provider Relationship, Informative Research,
8
9 40.
When Plaintiff brought the forgeries and unexecuted documentation to the attention of
10 Defendant Aurora Loan Servicing, it replied that the Baronis were time barred from doing
11
anything about the forged loan documents. The Plaintiff relied upon Defendant Aurora Loan
12
Servicing's representations.
13
B. The Notes.
14
15 41.
The Note #1 promissory note attached to Claim 9-1, does not contain the same
16 indorsements as the Note #2 promissory note attached as Exhibit A to the Declaration of Edward
17 Hyne filed in support of Nationstar's motion for summary judgment. In its Memorandum Decision
18 in the matter, the BAP posed the question of when a creditor, in the process of supporting a proof
19
of claim based on a promissory note, presents the bankruptcy court with two materially different
20
copies of the indorsements supposedly accompanying the note, can the court on summary
21
22
judgment correctly determine that there is no genuine dispute that the note has been duly indorsed
23 in blank? The BAP answered this question in the negative. The materially inconsistent
24 indorsements in the matter do not appear on allonges, but rather on the back side of the signature
25 pages of the notes, a fact Nationstar failed to disclose to the BAP. Nationstar requested the Court
26
27
take judicial notice of Note #2, and purports to be in possession of Note #2, but Nationstar does
not purport to be in possession of Note #1, the note attached to the Claim. Both Note #1 and Note
28
13
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1 #2 were represented to Plaintiff and the Court, as authenticated copies of the original note. The
2 filings containing these representations have never been amended nor has leave been requested to
3
4
42.
The documents provided to Plaintiff by Defendants also include a Bailee Letter dated on
5
6
7
or about March 8, 2004, addressed to Defendant Aurora Loan Services, and executed by David
Lautenschlager of Residential Funding Corporation ("RFC") (the "RFC Bailee Letter"),
8 establishing that RFC holds a security interest in the Baroni promissory note in accordance with a
9 Warehouse Credit and Security Agreement between Platinum and RFC. The RFC Bailee letter
10 requests payment to RFC from Aurora Loan Services, in connection with purchasing the Baroni
11
12
43.
The documents filed in the case including the Claim itself, do not demonstrate the release
13
14
15 44.
Plaintiff alleges that Defendants engaged in fraudulent practices by copying the original
16 note, endorsing the copy or copies and subsequently selling the endorsed copy or copies, as well
17 as the original note into the secondary marketplace, garnering multiple recoveries for the same
18 underlying debt, unjustly enriching Defendants using the Plaintiff's Property in the scheme.
19
45.
Plaintiff alleges that the original note was never securitized, never purchased by SARM
20
2004-5, never deposited into SARM 2004-5, nor transferred to or inspected by a trustee or
21
22
document custodian for a SARM 2004-5. Under this Court's Fed. R. Bank. P. Orders, any and all
23 consummated purchase agreements pertaining to the Baroni Note, and any and all documentation
24 establishing the movements and inspection of the original Baroni Note was required to be
25 produced to Plaintiff. No documentation establishing the securitization or transfer of the Baroni
26
Note to SARM 2004-5 has been produced or filed with the Court.
27
28
14
Case 1:13-ap-01069-MB
1 46.
Desc
Plaintiff alleges that SARM 2004-5 was never properly formed or functioning under any
47.
Plaintiff asserts that the indorsements and purported signatures appearing on the alleged
indorsements are not authentic. On appeal, Nationstar argued the Baroni Note was "re-indorsed."
5
6
7
Plaintiff alleges this is factually impossible, improper and Nationstar's assertion impugns the
veracity and validity of all six indorsements entered in the case.
8 48.
Prior to the BAP oral argument Defendants Aurora Loan Servicing and Nationstar refused
9 to explain the inconsistent indorsements. Defendants further failed to disclose the details
10 surrounding their new argument concerning the purported "re-indorsement" of the Baroni Note,
11
including the date upon which the purported re-indorsements took place, and whether the original
12
signatories were aware of the re-indorsements. To this day and in violation of this Court's FRBP
13
14
2004 Orders, Defendants' have failed to establish when and under what circumstances the Baroni
Plaintiff challenges every aspect of the indorsements, including that the signatories ever
17 intended to execute the indorsements. Plaintiff alleges that the stamped indorsements were applied
18 and re-applied to the Note #1 and Note #2 without the knowledge or authorization of the
19
signatories. Plaintiff further alleges that the signatories were never authorized to execute the
20
indorsements in the first instance, and that the signatories did not review any underlying
21
22
23 50.
Prior to putting forth its "re-indorsement" theory to the BAP, Nationstar informed the
24 appellate panel that the inconsistencies in the indorsements were due to a copying error, to which
25 the panel remarked that Nationstar was engaged in "magical thinking." Only then did Defendant
26
27
28
15
Case 1:13-ap-01069-MB
1 51.
Desc
2 the notes do not demonstrate the various transfers established in the documents obtained from
3
4
Defendants. For example, the Baroni Note does not contain evidence of the following transfers;
from Platinum to RFC, from RFC to any party, from Platinum to Twickenham, from Twickenham
5
6
7
to any party, from RFC to Aurora Loan Services, from Aurora Loan Services, to any party, nor to
or from Structured Asset Securities Corp.
8 52.
Plaintiff alleges the indorsements appearing on Note #1 and Note #2 do not reflect
9 transactions that actually took place, are a sham, are not authentic, and were created for an
10 improper purpose to unjustly enrich Defendants.
11
12
53.
Two recorded assignments appear in the records of the Monterey County Recorder's Office
13
14
in connection with this matter, however, the Claim itself attaches no evidence reflecting the
Plaintiff alleges that the purported December 12, 2011, Aurora Assignment executed by
17 Mortgage Electronic Systems Inc. in favor of Aurora Bank, FSB, and recorded with the Monterey
18 County Recorder's Office on March 2, 2012, is void, and does not represent a consummated
19
transaction that actually took place. Plaintiff further alleges the Aurora Assignment was created
20
for an improper purpose to facilitate the unjust enrichment of Defendants. The internal records
21
22
produced to Plaintiff under this Court's Fed. R. Bankr. P. 2004 Order establish that Aurora Loan
23 Services was preparing to foreclose on Plaintiff's property for the benefit of Aurora Bank, FSB.
24 Such documentation states, 2012-02-06 MERS. MIN NO:1000866 00111014900 AURORA
25 BANK, FSB IS THE BENEFICIARY AT THE TIME OF FORECLOSURE SALE. If there is only
26
27
one note, and it was transferred to SARM 2004-5 eight years prior, then Aurora Bank, FSB cannot
possibly be the beneficiary in 2012, and validly benefit from a foreclosure sale in 2012.
28
16
Case 1:13-ap-01069-MB
1 55.
Desc
Plaintiff alleges that the Aurora Assignment has slandered the title of Plaintiff's property
2 by falsely representing that the transactions evidenced on the Aurora Assignment occurred.
3
4
56.
Plaintiff alleges that the July 9, 2015, assignment of Deed of Trust from Aurora
Commercial Corporation to SARM 2004-5 is void. The transaction described on the SARM 2004-
5
6
7
5 Assignment did not take place, and has also slandered the title of Plaintiff's Property.
57.
Plaintiff alleges that Aurora Commercial Corporation did not have the authority to assign
8 assets away from Aurora Commercial Corporation to SARM 2004-5 at any time, including on July
9 9, 2015.
10 58.
11
Plaintiff alleges that the Debt Instruments were never securitized into SARM 2004-5, and
that the SARM 2004-5 Assignment was created with the improper intention of giving the
12
appearance that beneficial interest in the DOT was validly assigned to SARM 2004-5, when in fact
13
14
it was not.
15 59.
Plaintiff alleges that the attempted assignment of the Baroni DOT to SARM 2004-5 eleven
16 years after the closing of the loan trust backing SARM 2004-5, violates the purported governing
17 documents of SARM 2004-5, and violates the Internal Revenue Service rules governing REMICs,
18 under which SARM 2004-5 purports be organized.
19
60.
The Plaintiff alleges that the signatory of the SARM 2004-5 Assignment had no personal
20
knowledge of the facts to which the signatory attested, and that no valid underlying agreements
21
22
transferring beneficial interest in the DOT from Aurora Commercial Corp. to SARM 2004-5 exist.
23 61.
The Plaintiff alleges the signature on the SARM 2004-5 Assignment is not authentic. In
24 sum, the Plaintiff challenges every aspect of the SARM 2004-5 Assignment.
25 62.
26
27
The Plaintiff alleges that Nationstar's request that the Court take judicial notice of the
Aurora Assignment asserting that Aurora Bank, FSB is the true beneficiary of the DOT on
December 12, 2011, conflicts with the July 9, 2015, SARM 2004-5 Assignment. The Plaintiff
28
17
Case 1:13-ap-01069-MB
Desc
1 alleges there is no nexus between Aurora Commercial Corp. and SARM 2004-5 underlying an
2 assignment of the beneficial interest in the DOT from Aurora Commercial Corp. to SARM 2004-5
3
4
on July 9, 2015, eleven years after SARM 2004-5 was purportedly formed. Nationstar failed to
produce to the Plaintiff or file with the Court the SARM 2004-5 Assignment.
5
6
7
63.
The Plaintiff alleges that none of the Defendants are the true and rightful beneficiary of
9 64.
Upon summary judgment, Nationstar declared itself no longer the secured creditor of the
10 Claim but rather the servicing agent for SARM 2004-5. The BAP held that Nationstar did not
11
establish a servicing relationship in connection with the Baroni Note. Nationstar represented
12
under this Court's FRBP 2004 order that it has produced all documents in connection with the
13
14
servicing of the Baroni Note and failed to produce documentation sufficient to establish an agency
15 relationship with SARM 2004-5. At this point, any assertion by Nationstar that it is the servicer of
16 the Baroni Note for SARM 2004-5 violates this Court's Orders.
17 65.
The Plaintiff alleges that Nationstar first asserted it is the creditor, and then put forth the
18 unsubstantiated assertion that it is the servicing agent for SARM 2004-5 was for an improper
19
purpose, namely to unjustly enrich itself. Plaintiff alleges that Nationstar is not the servicing agent
20
for SARM 2004-5, the Baroni Note was never transferred to SARM 2004-5, that SARM 2004-5
21
22
was never properly formed and is not lawfully functioning, that Nationstar has no intention of
23 forwarding Plaintiff's payments to SARM 2004-5, and that Nationstar improperly used the name
24 of SARM 2004-5 to attempt to collect payments from Plaintiff that it has no rights to.
25 ///
26
27
///
///
28
18
Case 1:13-ap-01069-MB
IV.
Desc
A.
6
7 66.
Plaintiff hereby incorporates by reference each and every one of the preceding paragraphs
60.
Plaintiff hereby alleges that Defendants do not have a secured or unsecured legal,
10
equitable, or pecuniary interest in the lien evidenced by the DOT and the Baroni Note. The
11
12
13 well as the purported, belated and fabricated Aurora Assignment and SARM 2004-5 Assignment
14 have no effect on the Debt Instruments - the Baroni Note is wholly unsecured.
15 61.
As demonstrated on Note #1, and Note #2, the Claim, and the documents produced to
16 Plaintiff from the Defendants described herein, the Defendants assert that Platinum Capital Corp.,
17
Twickenham Capital Corp, Lehman Brothers Holdings, Inc., Lehman Brothers Bank, FSB, Aurora
18
Bank FSB, Aurora Commercial Corp., Nationstar Mortgage, LLC, Structured Asset Securities
19
20
Corp., and SARM 2004-5, have all owned or been a secured creditor of the Debt Instruments.
21 Plaintiff alleges that none of these entities were ever a rightful secured creditor the Debt
22 Instruments with a secured interest in Plaintiff's Property.
23 62.
24
25
Plaintiff alleges, that a real and actual controversy exists as to the respective rights of
Plaintiff and Defendants, including title in and to the Property subject to the DOT evidencing
security for the Note.
26
27
28
63.
None of the Defendants established trough credible evidence that they ever owned the
Baroni Note.
19
Case 1:13-ap-01069-MB
1 64.
Desc
Defendants have provided no documents relating the Plaintiff's Note and DOT being
2 owned by Nationstar, nor any of the Defendants, which has denied Plaintiff the opportunity the
3
4
identify and verify the Claim by a custodian of records who has personal knowledge of the loan
being, sold, or transferred, to any of the Defendant's including SARM 2004-5.
5
6
7
65.
Plaintiff will suffer prejudice if the Court does not determine the rights and obligations of
the parties because: (1) Plaintiff will be denied the opportunity to identify her true and correct
8 creditor; (2) she will be denied the right to conduct discovery and have Claim 9-1 verified by a
9 custodian of records and the person most knowledgeable of the Loan and all transactions related to
10 and arising there from; and (3) she will be denied the opportunity to discover the true amount
11
actually owed. It is necessary that the Court declare the actual rights and obligations of the parties
12
and make a determination whether the Claim is enforceable and whether it is secured or unsecured
13
14
by any right title, or interest in Plaintiff's Property, as allowed under 28 U.S.C. 2201.
B.
15
16
UNJUST ENRICHMENT
17
66.
Plaintiff hereby incorporates by reference each and every one of the preceding paragraphs
18
as if the same were fully set forth herein.
19
20
67.
Plaintiff alleges that Defendant Nationstar, and the remaining Defendants have not
21 provided documents sufficient to verify that the original Baroni Note and DOT were ever validly
22 transferred to any of them, including SARM 2004-5.
23 68.
24
25
Plaintiff alleges that the Baroni Note was not "re-indorsed" as Nationstar claims but rather
that each of the notes containing inconsistent indorsements were sold into the secondary market
garnering multiple recoveries for the same underlying mortgage debt secured by Plaintiff's
26
27
28
20
Case 1:13-ap-01069-MB
1 69.
Desc
Plaintiff alleges that the forged loan documents were created in furtherance of selling the
2 Debt Instruments to multiple buyers garnering numerous recoveries for the same underlying
3
4
mortgage debt.
70.
Plaintiff alleges that Defendant Nationstar is not the servicing agent for SARM 2004-5 and
5
6
7
is attempting to unjustly enrich itself by attempting to collect payments from Plaintiff under the
guise of an agency relationship with SARM 2004-5.
8 71.
Plaintiff alleges that Defendant SARM 2004-5 attempts to unjustly enrich itself by
9 claiming to be the assignee of the beneficial interest in the DOT as evidenced by the SARM 200410 5 Assignment.
11
72.
Plaintiff alleges that Defendant Aurora Bank FSB, attempts to unjustly enrich itself by also
12
claiming to be the assignee of the beneficial interest in the DOT as evidenced by the Aurora
13
14
Assignment.
15 73.
Plaintiff alleges the Defendant Platinum unjustly enriched itself by never funding the loan,
16 but charging fees as if it did, while RFC and Twickenham both provided funds in connection with
17 the loan.
18 74.
19
Plaintiff alleges that Lehman Brothers Holdings, Inc., and Structured Assets Securities
Corp, unjustly enriched themselves by using Plaintiff's Property to capitalize on the lucrative
20
mortgage backed securities market. Plaintiff alleges that these Defendants collected fees and
21
22
amounts in connection with purporting to securitize the Baroni Note into SARM 2004-5 when
23 they never actually purchased the Baroni Note or transferred it to SARM 2004-5.
24 75.
Plaintiff further alleges that the SARM 2004-5 loan trust was never properly formed and
25 that any securities based thereon have retired giving rise to Defendant Nationstar's attempt to
26
27
collect Plaintiff's payments and retain them not collecting them for the benefit of the certificate
holders of SARM 2004-5.
28
21
Case 1:13-ap-01069-MB
1 76.
Desc
Plaintiff alleges that Defendants attempt to take advantage of the complex structured
2 finance system to unjustly enrich itself by improperly garnering multiple recovers as a result of the
3
same underlying mortgage, and by collecting payments they are not entitled to.
C.
5
6
7 77.
Plaintiff re-alleges and incorporates by reference each and every one of the preceding
78.
The Defendants has engaged in unfair, unlawful, and fraudulent business practices in the
10
State of California, as set forth herein.
11
12
79.
By engaging in the above-described acts and practices, Defendant has committed one or
13 more acts of unfair competition within the meaning of Bus. And Prof. Code Section 17200, et. seq.
14 California Business and Professions Code Section 17200, et seq., prohibits acts of unfair
15 competition, which means and includes any unlawful, unfair or fraudulent business act and
16 conduct that is likely to deceive and is fraudulent in nature.
17
80.
Plaintiff alleges, that Defendants conduct, for the reasons stated herein, is in direct
18
violation of 15 U.S.C. 1692.
19
81.
Plaintiff alleges, that Defendants acted as a beneficiary without the legal authority to do so.
21 82.
Plaintiff alleges, that a Defendants facilitated, aided, and abetted the illegal, deceptive and
20
22 unlawful enforcement of the Baroni Note and DOT and engaged in the multiple selling of the debt
23 memorialized on the Debt Instruments, and other illegal debt collection activities.
24
25
83.
Plaintiff is informed and believes, and based thereon alleges, that none of the Defendants
have a perfected security interest in the Baroni Note such that they can enforce the obligation or
26
27
28
22
Case 1:13-ap-01069-MB
1 84.
Desc
Plaintiff alleges, that Defendants fraudulently enforced a debt obligation in which they had
85.
Plaintiff alleges, that the conduct described above is malicious, because the Defendants
knew that at all times material, they were not acting on behalf of the current pecuniary beneficiary
5
6
7
of the Note and DOT. However, despite such knowledge, Defendants continued to demand and
collect on Plaintiff's mortgage payments.
8 86.
Plaintiff alleges, that at all times material, the Defendants had, and has, actual knowledge
9 that Plaintiff's account was not accurate, but that Plaintiff would continue to make further
10 payments based on Defendants inaccurate account, assertions of ownerships and that Plaintiff
11
made payments based on these improper, inaccurate and fraudulent representations of the
12
Defendants.
13
14
87.
Plaintiff alleges, that as more fully described above, Defendants acts and practices are
15 unlawful and that this conduct is ongoing and continues to this date.
16 88.
Plaintiff alleges, that as more fully described above, Defendants acts and practices are
17 likely to deceive members of the public and that this conduct is ongoing and continues to this date.
18 89.
19
Plaintiff alleges, that as more fully described above, Defendants acts and practices are
unfair and the harm caused by their conduct outweighs any benefit that their conduct may have
20
and that this conduct is ongoing and continues to this date.
21
22
90.
Plaintiff alleges, that by engaging in the above-described acts or practices as alleged herein
23 Defendant violated several laws including California Business and Professions Code Section
24 17200, et seq., and must be required to disgorge all profits related to their unfair, unlawful and
25 deceptive business practices.
26
27
91.
Plaintiff alleges, that the foregoing acts have caused substantial harm to California
28
23
Case 1:13-ap-01069-MB
1 92.
Desc
Plaintiff alleges, that by reason of the foregoing, Defendant has been unjustly enriched, by
2 the conduct described above and by collecting payments that they are not entitled to, and should
3
4
be required to make restitution to Plaintiff and other California consumers who have been harmed,
and/or be enjoined from continuing such practices pursuant to California Business and Professions
5
6
7
Plaintiff alleges, that as a direct and proximate result of the actions of Defendants, Plaintiff
8 has been injured in that a cloud has been placed upon the title to Plaintiff's Property and the
9 Defendants has failed, refused or neglected to remove this cloud.
10 94.
11
Plaintiff requests the Court to issue an order compelling the Defendants to take any and all
actions necessary to remove the cloud upon Plaintiff's title to her Property and an order enjoining
12
the Defendants from taking actions again in the future to enforce or collect on the Baroni Note.
13
14
95.
Plaintiff alleges, that as a direct and proximate result of the violations of California
15 Business and Professions Code Section 17200, et.seq., by the Defendants, Plaintiff has suffered
16 actual pecuniary damages, including but not limited to, civil liability, restitution, injunctive relief
17 preventing Defendants from continuing to collect mortgage payments and attorney fees in an
18 amount this Court deems just and proper.
19
96.
20
Professions Code Section 17200, et.seq., Plaintiff has been damaged in the following ways: (1)
21
22
multiple parties may seek to enforce a debt obligation against her; (2) the title to the Property has
23 been clouded and its salability has been rendered unmarketable, as any buyer of Plaintiff's
24 property will find themselves in legal limbo, unable to know whether they can safely purchase
25 Plaintiff's Property or secure title insurance; (3) Plaintiff has been paying the wrong party for an
26
undetermined amount of time; (4) Plaintiff's credit score has been damaged; (5) Plaintiff was
27
28
24
Case 1:13-ap-01069-MB
Desc
1 forced to seek protection from Defendants under the United States Bankruptcy Code; and (6)
2 Plaintiff has expended significant funds to cover the cost of attorney fees and costs.
3
D.
5
6
7
97.
Plaintiff re-alleges and incorporates by reference each and every one of the preceding
8 98.
Plaintiff is informed and believes, and based thereon alleges, that Defendants have held
9 themselves out as Plaintiff's creditor, and or mortgage servicer. As a result of this purported
10 relationship, Defendants have a fiduciary duty to Plaintiff to properly account for all amounts
11
received and payments made as a result of the Baroni Note. Pursuant to the FRBP 2004 Orders
12
served on Nationstar and Wells Fargo Bank N.A., Plaintiff requested a complete loan transaction
13
14
history. Defendants have failed, refused or neglected to provide such documentation to include an
15 accounting of any and all insurance policies, credit enhancement or settlement agreement amounts
16 recovered as a result of the Baroni Note, and an accounting of the multiple recoveries for the sale
17 and funding of the Baroni Note.
18 99.
19
An accounting is required because either or all of the Defendants have: (1) failed, and
filed for protection from creditors under the United States Bankruptcy Code; (2) been examined by
20
state and federal agencies for non-compliance with applicable state and federal statutes, rules, and
21
22
regulations governing the conduct of entities engaged in the business of a mortgage lender; (3)
23 cease and desist orders lodged against them by state and federal agencies; (4) been examined by
24 the Office of Comptroller of the Currency, the Office of Thrift Supervision, the Federal Deposit
25 Insurance Corporation, and the Federal Reserve Board, which found critical deficiencies and
26
27
28
25
Case 1:13-ap-01069-MB
Desc
1 of the Comptroller of the Currency to have engaged in unsafe or unsound banking practices
2 [i]n connection with certain foreclosures of loans in its residential mortgage servicing portfolio;
3
4
(6) under the theory of conversion have been accused of improper actions by investor Kirp, LLC
in connection with mortgage asset backing securities.
5
6
7
100.
approximately eight years. For reasons stated herein, those payments were not actually owed to the
8 Defendants, and for among other reasons, such monies should be returned to Plaintiff.
9 101.
Plaintiff is informed and believes, and based thereon alleges, Plaintiff requested an
10 accounting of all amounts claimed to be owed with Defendants Aurora Loan Servicing, Nationstar
11
12
E.
13
FIFTH CLAIM FOR RELIEF - SLANDER OF TITLE
14
15 102.
Plaintiff re-alleges and incorporates by reference each and every one of the preceding
Defendants prepared and filed the Aurora Assignment, and the SARM 2004-5 Assignment
18 to promulgate the foreclosure of Plaintiffs Property, and the unjust enrichment of Defendants.
19
104.
The Aurora Assignment and the SARM 2004-5 Assignment improperly attempt to
20
memorialize transactions that never occurred. These assignments conflict with each other as
21
22
Aurora Bank, FSB cannot possibly be the assignee of the DOT on December 12, 2011, and
23 beneficiary of the attempted foreclosure sale of Plaintiff's property, if the Baroni Note was sold to
24 SARM 2004-5 in 2004. Neither can the SARM 2004-5 Assignment be accurate as the Baroni
25 DOT could not lawfully be assigned to SARM 2004-5 from Aurora Commercial Corp. in July
26
2015.
27
28
26
Case 1:13-ap-01069-MB
1 105.
Desc
Plaintiff alleges that the void assignments caused Plaintiff significant and ongoing damage
F.
5
VIOLATION OF CALIFORNIA CIVIL CODE SECTIONS 1709 AND 1710
6
7
106.
Plaintiff re-alleges and incorporates by reference each and every one of the preceding
Plaintiff alleges that Defendants made false representations that harmed her as described
10 herein:
11
a. Defendants represented to Plaintiff that each of them were or are the true, correct,
12
and current creditor of the Debt Instruments, and as such were or are due payments
13
14
15
16
indicating $1,480,705.83 as the current amount due as result of the Baroni Note, while
17
refusing to produce and accurate accounting of all amounts received as a result of the
18
19
c. Defendants represented to Plaintiff that the no amounts have been received by any of
20
them as a result of credit enhancements, settlement agreements, or the multiple sales of
21
22
23
d. Defendants represented to Plaintiff that the Baroni Note was properly transferred and
24
25
e. Defendants represented to Plaintiff that they are acting on behalf of the certificate
26
27
28
27
Case 1:13-ap-01069-MB
Desc
f. Defendants represented to Plaintiff that they have authority to act on behalf of the
g. Defendants represented that the Aurora Assignment was a true and correct reflection
of the events pertaining to the Baroni DOT but yet the Aurora Assignment conflicts
5
with the SARM 2004-5 Assignment;
h. Defendants represented that amounts under the Baroni Note were due and payable
7
8
but failed to disclose the multiple sales of the Baroni Note garnering multiple
10
i. Defendants represented that Plaintiff was time barred from taking action in
11
12
108.
109.
The Defendants knew that the representations described herein were false when
13
14
15 Defendants made them, and the Defendants made the representations recklessly, and without
16 regard for their truth.
17 110.
The Defendants intended that Plaintiff rely on the representations described herein.
18 111.
19
112.
As described herein, Plaintiff was harmed by her reliance on the Defendants false
20
representations.
21
22
113.
The Defendants false representations were a substantial factor in causing harm to the
23 Plaintiff.
24 \\\
25 \\\
26
27
\\\
\\\
28
28
Case 1:13-ap-01069-MB
2 1.
2.
Desc
For actual monetary damages or for compensatory statutory damages, attorneys' fees and
costs according to proof at trail; and for exemplary and punitive damages.
5
6
3.
For an order compelling Defendants to remove from title to the Property the Deed of Trust
or any instrument, which does or could be construed as constituting a cloud upon Plaintiff's
7
8
9 4.
For a declaratory judgment finding that the Defendants do not have legally cognizable
10
rights, title or interest as to Plaintiff, the Property, the Baroni Note or the Deed of Trust, or
11
any other matter based on any contract or any of the documents or documentation executed
12
and delivered by Plaintiff;
13
14
5.
For an order compelling Defendants to disgorge all amounts wrongfully taken from
15
Plaintiff and returning the same the Plaintiff's interest thereon at a statutory rate from the
16
17 6.
18 7.
19
8.
For such other and further relief as this Court may deem appropriate.
20
21
22
\\\
23 \\\
24 \\\
25 \\\
26
27
\\\
\\\
28
29
Case 1:13-ap-01069-MB
VI.
JURY DEMAND
Desc
Plaintiff demands a trial by jury for all issues so triable as a matter of right.
4
5
6
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
Case 1:13-ap-01069-MB
EXHIBIT 1
Desc
Case
CaseForm
1:12-bk-10986-AA
1:13-ap-01069-MB
B 10 (Official
10) (12/11)
Claim
Doc 147
9-1 Filed 06/19/16
09/17/12 Entered
Desc Main
06/19/16
Document
21:32:14
Page
Desc
1 of
FOR THE CENTRAL
DISTRICT
Main Document
4 Page
57 of OF
143
PROOF OF CLAIM
CALIFORNIA
SAN FERNANDO VALLEY DIVISION
Case Number:
Name of Debtor:
Allana Baroni
SV12-10986-AA
NOTE: Do not use this form to make a claim for an administrative expense that arises after the bankruptcy filing.
You may file a request for payment of an administrative expense according to 11 U.S.C. 503.
Name of Creditor (the person or other entity to whom the debtor owes money or property):
Nationstar Mortgage, LLC
COURT USE ONLY
Check this box if this claim amends a
previously filed claim.
email:
Filed on
Check this box if you are aware that
anyone else has filed a proof of claim
relating to this claim. Attach copy of
statement giving particulars.
Name and address where payment should be sent: (if different from above):
Nationstar Mortgage, LLC
Bankruptcy Department
350 Highland Drive
Lewisville, Texas 75067
Telephone Number: (800) 766-7751
email:
$1,480,705.83
Money Loaned
Value of Property:
Recordation of Lien
$1,480,705.83
Other - Specify
applicable paragraph of
11 U.S.C. 507(a) (__).
*Amounts are subject to adjustment on 04/01/2013 and every 3 years thereafter with respect to cases commenced on or after the date of adjustment.
6. Credits. The amount of all payments on this claim has been credited for the purpose of making this proof of claim. (See instruction #6)
B10Form_Ver001 : 4576-N-5258
Case
Case1:12-bk-10986-AA
1:13-ap-01069-MB Claim
Doc 147
9-1 Filed 06/19/16
09/17/12 Entered
Desc Main
06/19/16
Document
21:32:14
Page
Desc
2 of
Main Document 4 Page 58 of 143
I declare under penalty of perjury that the information provided in this claim is true and correct to the best of my knowledge, information, and reasonable belief.
Print Name:
Title:
Company:
Craig A. Edelman
Authorized Agent for Nationstar Mortgage, LLC
Brice, Vander Linden & Wernick, PC
Address and telephone number (if different from notice address above):
P. O. Box 829009
Dallas, TX 75382-9909
Telephone:
(972) 643-6600
Email:
pocinquiries@bkcylaw.com
Penalty for presenting fraudulent claim: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S.C. 152 and 3571.
B10Form_Ver001 : 4576-N-5258
Case
Case1:12-bk-10986-AA
1:13-ap-01069-MB Claim
Doc 147
9-1 Filed 06/19/16
09/17/12 Entered
Desc Main
06/19/16
Document
21:32:14
Page
Desc
3 of
Main Document 4 Page 59 of 143
B 10 (Attachment A) (12/11)
Chapter: 11
Name of debtor:
Allana Baroni
Case Number:
SV12-10986-AA
Name of creditor:
xxxxxx5132
Part 1: Statement of Principal and Interest Due as of the Conversion Date (02/29/2012)
Itemize the principal and interest due on the claim as of the conversion date (include in the Amount of Claim listed in
item 1 of your Proof of Claim form).
1.
Principal due
2.
Interest due
Interest Rate
3.125%
3.000%
From
01/01/2011
05/01/2011
To
04/30/2011
02/29/2012
(1)
$1,430,000.00
(2)
+ $50,645.83
(3)
$1,480,645.83
Amount
$14,895.83
$35,750.00
Copy total here
>
Late Charges
Non-sufficient funds (NSF) fees
Attorney fees
Filing fees and court costs
Advertisement costs
Sheriff/auctioneer fees
Title costs
Recording fees
Appraisal/broker's price opinion
fees
10. Property inspection fees
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
1@
1@
1@
1@
(10)
(11)
(12)
13. Escrow shortage or deficiency (Do not include amounts that are part of any installment payment listed in Part 3.)
14. Property preservation expenses.
15. Other.
(13)
(14)
(15)
16. Total preconversion fees, expenses, and charges. Add all of the amounts listed above.
(16)
EXAForm_Ver001
4576-N-5258
$60.00
$60.00
Case
Case1:12-bk-10986-AA
1:13-ap-01069-MB Claim
Doc 147
9-1 Filed 06/19/16
09/17/12 Entered
Desc Main
06/19/16
Document
21:32:14
Page
Desc
4 of
Main Document 4 Page 60 of 143
B 10 (Attachment A) (12/11)
Chapter: 11
1.
Installment
payments due
(1) 13
Number of installment
payments due:
2.
Amount of
installment
payments due
February 2011 to April 2011
May 2011 to February 2012
01/18/2011
Calculation of
cure amount
$46,921.88
$11,171.88
$35,750.00
Copy total
here
> (2)
>
$46,921.88
+ $60.00
$0.00
___________
(3)
$46,981.88
Your monthly payment amount may change due to an escrow requirement and/or interest rate adjustment.
Your current payment amount including escrow and any upcoming changes are provided below:
Effective Date
03/01/2012
EXAForm_Ver001
4576-N-5258
Effective Amount
$3,575.00
Case
Case1:13-ap-01069-MB
1:12-bk-10986-AA Doc
Claim
147
9-1 Part
Filed206/19/16
Filed 09/17/12
Entered Desc
06/19/16
Exhibit
21:32:14
Page Desc
1 of
Main Document 36 Page 61 of 143
Case
Case1:13-ap-01069-MB
1:12-bk-10986-AA Doc
Claim
147
9-1 Part
Filed206/19/16
Filed 09/17/12
Entered Desc
06/19/16
Exhibit
21:32:14
Page Desc
2 of
Main Document 36 Page 62 of 143
Case
Case1:13-ap-01069-MB
1:12-bk-10986-AA Doc
Claim
147
9-1 Part
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EXHIBIT 3
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FILED
NOV 10 2015
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6
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Desc
In re:
)
)
ALLANA BARONI,
)
)
Debtor.
)
______________________________)
)
ALLANA BARONI,
)
)
Appellant,
)
)
v.
)
)
NATIONSTAR MORTGAGE, LLC,
)
)
Appellee.
)
______________________________)
14
BAP No.
CC-14-1578-KuDTa
Bk. No.
12-10986
Adv. No.
13-01069
MEMORANDUM*
15
Filed November 10, 2015
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17
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Appearances:
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INTRODUCTION
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Desc
in favor of Nationstar.
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11
the note and the deed of trust nor that it had an agency
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We answer
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1
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FACTS
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2
the Baronis did not actually reside in the Carmel property but
In furtherance of the
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tenants.
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15
sense has admitted that she might be obliged to repay the Carmel
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interest.
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Carmel note and the Carmel deed of trust have been irrevocably
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Desc
$1,480,000.00.
The POC Note Copy also contains on the signature page what
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be three indorsements.3
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The
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the first page of the POC Trust Deed Copy indicates that the
in March 2004.
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allowed any claim secured by the Carmel property, she would pay
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her plan.
18
In
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Nationstar.
20
the Carmel note nor the Carmel deed of trust identify Nationstar
21
in any way.
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23
24
4
25
26
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(...continued)
order: (1) the indorsement by Platinum Capital Group (the
original payee identified in the note) making the note payable to
Lehman Brothers Bank; (2) the indorsement by Lehman Brothers Bank
making the note payable to Lehman Brothers Holdings, Inc.; and
(3) the indorsement in blank by Lehman Brothers Holdings, Inc.
making the note payable to the bearer.
5
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Desc
the note.
These
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11
to the risk of having to pay the amount due on the Carmel note
12
multiple times unless the bankruptcy court determined who was the
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unsecured.
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complaints third claim for relief under the Fair Debt Collection
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The
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fourth and final claim for relief, based on all of the same
Desc
Allanas
dismissal motion.
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12
the servicing agent for the owner of the note, Wells Fargo Bank,
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14
complaint.
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16
Hyne
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by Nationstar.
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Desc
forth in his declaration were based on the files and records for
[Allanas] loan, but he does not identify those loan files and
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his declaration was a true copy of the Carmel note and that
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ownership of the note, mere legal title to the note, or the right
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Desc
information: 17362807
agreement.
3 Carmel
CA
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11
12
LLP.
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14
15
16
17
18
19
redacted page.
20
Nor did
More importantly, no
21
In support of
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6
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Desc
proceedings . . . .
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trusts covered.
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possession.
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In
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24
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obligation.
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Desc
POC Note Copy, the Platinum Capital Group indorsement and the
Holdings indorsement.
indorsement.7
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11
12
Miller.
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14
15
16
17
LLP.
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did not.
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21
22
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24
25
Meanwhile,
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27
7
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Desc
26.
POC Note Copy and the Hyne declaration note copy are not copies
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17
18
evidence regarding who owned the Carmel note and who was the
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Desc
had sought under Rule 2004 from Nationstar, Wells Fargo and
Nationstar.
requests.
10
that elapsed between the filing of her complaint and the filing
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12
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15
reasoning.
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17
18
19
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Carmel note.
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securitization trust and that Wells Fargo owned the Carmel note
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28
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Desc
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13
within the meaning of the Act, that the Act only applied to
14
consumer debts and that the debt secured by the Carmel property
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16
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21
28 U.S.C. 158.
ISSUES
22
23
24
25
26
27
ruling.
Wank v. Gordon (In re Wank), 505 B.R. 878, 886 (9th Cir.
28
BAP 2014).
14
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Desc
1
2
courts use.
Cir. BAP 1995), aff'd, 100 F.3d 110 (9th Cir. 1996).
10
of law."
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12
13
14
15
16
17
Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing
18
19
Pursuant to
Id.
In considering summary
An issue is genuine if
Far Out
20
party.
21
22
23
24
25
26
Beard v. Banks, 548 U.S. 521, 527 (2006); see also 10A Charles A.
27
Wright, Arthur R. Miller, et al., FED. PRAC. & PROC. CIV. 2727
28
(3d ed. 2015) (If the movant presents credible evidence that, if
15
See
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4
5
6
Desc
A.
Allanas Standing
We first address the bankruptcy courts ruling that Allana
Nationstar.
10
Anchor Capital Advisors, 498 F.3d 920, 923 (9th Cir. 2007)
11
12
(1992)).
13
14
15
16
(3) redressability.
17
18
19
20
Am. Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897,
21
22
23
jurisdiction.
24
289).
25
26
289-90.
27
28
Veal v.
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asserted.
Desc
lacked standing.
10
reorganization plan.
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12
13
and redressability.
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15
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based on a debt for which only James was personally liable, the
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22
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she was asserting and protecting her own rights and interests and
25
26
While the
27
28
While she
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Desc
authority.
10
11
Nat. Trust Co. (In re Simpson), 2013 WL 2350967 (9th Cir. BAP
12
13
14
15
16
does not alter or impair her standing to challenge the lien and
17
18
19
20
21
22
B.
23
Nationstars Standing
Having concluded that Allana had standing to challenge
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25
26
27
28
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Desc
explained that who has standing and who is the real party in
at 907-08.
10
11
Id. at 920.
12
1.
Applicable Law
13
14
15
16
Bank, N.A. (In re Allen), 472 B.R. 559, 565 (9th Cir. BAP 2012);
17
18
19
Cir. BAP Nov. 24, 2014) (Mem. Dec.); Green v. Waterfall Victoria
20
21
4857552, at *6-7 (9th Cir. BAP Oct. 15, 2012) (Mem. Dec.); cf.
22
Edwards v. Wells Fargo Bank, N.A. (In re Edwards), 454 B.R. 100,
23
24
25
26
27
28
19
In In re Allen and in
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Desc
but one common way is for the person to become a "holder" of the
10
indorsed in blank.
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12
13
14
15
When indorsed in
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10
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2.
Desc
2
3
Nationstar also must establish who owns the note and whether
Allana claims
According to Allana,
10
11
12
13
14
of the instrument.
15
Allana is incorrect.
As the
16
knows that, if she pays Nationstar she has satisfied the debt,
17
18
19
agent.
20
21
22
23
In re Veal, 450 B.R. at 910, 912 & n.27; see also id. at
24
25
26
27
28
11
(...continued)
qualifies as a negotiable instrument
3-104(a). Consequently, any issue
Article 3 applies to the Carmel note
Golden v. Chicago Title Ins. Co. (In
(9th Cir. BAP 2002).
21
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Desc
See
We disagree.
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11
12
13
14
of it.
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16
copies of the same note and that James signature on each of the
17
18
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21
22
23
24
25
26
27
28
Barasch is
See
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the original.
Jamess signature on the Carmel note, but he does not need to.
Id.
Desc
different matter.
10
authenticating.
11
12
13
Id.
14
15
the original.
16
17
18
19
allonge.
20
21
22
inspect them.
23
Either way,
Id.
24
25
26
27
28
As we explained
In spite of the
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Desc
pages that the original Carmel note never was properly indorsed;
10
11
12
13
14
regarding whether the Carmel note was duly endorsed in blank and
15
16
17
18
3.
19
20
21
22
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27
trust, owns the Carmel note and that Nationstar is Wells Fargos
28
agent.
See In re Veal,
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Desc
note but also the transfer of some form of interest in the note
at 911-12.
Id.
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11
12
13
14
15
16
see also United States v. Lopez, 762 F.3d 852, 863 (9th Cir.
17
18
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20
21
22
testimony is inadmissible.
23
547 F.Supp.2d 1099, 1105 n.8 (C.D. Cal. 2007); see also United
24
States v. Snodgrass, 635 F.3d 324, 329 (7th Cir. 2011) (affirming
25
26
hearsay).
27
28
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in April 2004.
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11
personal knowledge.
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buyer.
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inadmissable hearsay.
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While Hyne
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But
Under the
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statement are not well taken, the limited power of attorney does
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Nonetheless, even
Nowhere in the
The limited
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purposes or otherwise, that Wells Fargo owned the Carmel note and
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C.
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enrichment claim.
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Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1388 (2012).
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See Klein v.
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ruling.
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Allana.
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We simply dont
See, e.g.,
(2003).
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Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015).
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Astiana v. Hain
Astiana
Id.
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on that claim.
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the FDCPA did not apply because Nationstar was not a debt
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(6) The term debt collector means any person who uses
any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the
collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another. . . .
The term does not include
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*
(F) any person collecting or attempting to collect
any debt owed or due or asserted to be owed or due
another to the extent such activity (i) is
incidental to a bona fide fiduciary obligation or
a bona fide escrow arrangement; (ii) concerns a
debt which was originated by such person;
(iii) concerns a debt which was not in default at
the time it was obtained by such person; or
(iv) concerns a debt obtained by such person as a
secured party in a commercial credit transaction
involving the creditor.
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1197, 1208 (5th Cir. 1985); see also Lal v. Am. Home Servicing,
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Inc., 680 F.Supp.2d 1218, 1224 (E.D. Cal. 2010) (quoting Perry
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mortgage servicer for the Carmel note; and (4) if so, when it
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against Allana on her FDCPA claim, the bankruptcy court held that
FDCPA.
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We agree.
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214 F.3d 872, 874-75 (7th Cir. 2000); Bloom v. I.C. Sys., Inc.,
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Carmel loan was used to refinance the Carmel property, and in her
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Under
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FDCPA claim.13
D.
and the Carmel deed of trust have been irrevocably split and,
This
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& Trust Co., 42 Cal.2d 284, 291 (1954) (Assuming for the moment
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that the assignment of the note, secured by the third trust deed,
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271, 275 (1872) (The transfer of the note carries with it the
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See
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In support of this
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However, we do note
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also Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443
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Nor
CONCLUSION
For the reasons set forth above, we AFFIRM IN PART, REVERSE
IN PART AND REMAND FOR FURTHER PROCEEDINGS.
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Case
Case1:13-ap-01069-MB
1:12-bk-10986-AA
Case: 14-1578, Document:
Doc
Claim
147
9-1 29-4,
Part
Filed206/19/16
Filed:
Filed05/12/2015
09/17/12
Entered Desc
06/19/16
Page
Exhibit
12
21:32:14
of 41Page Desc
7 of
Main Document 36 Page 141 of 143
Appendix A
Case 1:13-ap-01069-AA
1:13-ap-01069-MB
Case: 14-1578, Document:
Doc
Doc50-2
147 29-14,
Filed 06/19/16
09/24/14
Filed: 05/12/2015
Entered 06/19/16
09/24/14
Page 12
21:32:14
11:42:47
of 41
MainExhibit
Document
A-Note Page
Page142
7 ofof9143
Appendix B
Exhibit A
Desc
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Desc
1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General
Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On June 19,
2016, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following
persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below:
Michael Riley, mriley8@aol.com
Adam Barasch (anb@severson.com)
Bernard J Kornberg bjk@severson.com
Jeannette Marsala jmarsala@houser-law.com, jmann@houser-law.com
United States Trustee, usrpregion16.wh.ecf@usdoj.gov
2. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method
for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on June 19, 2016, I served the
following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to
such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration
that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is
filed.
The Honorable Marin R, Barash (personal delivery)
21041BurbankBlvd
Ctrm.303.WoodlandHills.CA
91367
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
Signature
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012
F 9013-3.1.PROOF.SERVICE