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1 Richard L. Antognini, Esq. (Cal. Bar No. 075711)


Law Office of Richard L. Antognini
2 2036 Nevada City Highway, Suite 636
Grass Valley, California 95945-7700
3 Tel: (916) 295-4896 | Email: rlalawyer@yahoo.com
4 Michael S. Riley (Fla. Bar #265918 Pro Hac Vice)
The Law Offices of Michael S. Riley
5 401 E. Las Olas Blvd., Suite #130, Fort Lauderdale, FL 33301
Tel: (818) 877-6423 | Email: mriley8@aol.com
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Attorneys for Reorganized Debtor and Appellant, Allana Baroni
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UNITED STATES BANKRUPTCY COURT

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CENTRAL DISTRICT OF CALIFORNIA - SAN FERNANDO VALLEY DIVISION

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In re

Chapter 11 Case

Allana Baroni,

Bankr. Case No. 1:12-bk-10986-MB

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Reorganized Debtor.
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Adv. Proc. No. 1:13-ap-01069-MB

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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NOTICE OF MOTION AND MOTION FOR


LEAVE TO FILE PLAINTIFFS SECOND
AMENDED COMPLAINT;
MEMORANDUMOF POINTS AND
AUTHORITIES; DECLARATION OF
MICHAEL RILEY IN SUPPORT THEREOF

Date: August 26, 2016


Time: 1:30pm
Place: Courtroom 303
21041 Burbank Blvd., Woodland Hills, CA

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TO THE HONORABLE MARTIN R. BARASH, UNITED STATES BANKRUPTCY

2 JUDGE, THE UNITED STATES TRUSTEE, PARTIES IN INTEREST AND COUNSEL OF


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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

8 COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF


9 MICHAEL S. RILEY IN SUPPORT THEREOF (Motion for Leave), pursuant to LBR 7015,
10 Fed.R.Bankr.P. 7015, as incorporated by Fed.R.Civ.P.15; and Fed.R.Bankr.P. 9006, as
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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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1 WHEREFORE, the Plaintiff respectfully requests this Court enter an order:


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a. Granting Plaintiffs leave to amend the Second Amended Complaint;


b. Accepting the Second Amended Complaint attached and incorporated by reference as
Exhibit 1, as that to be filed and served on all parties in interest;

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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 19, 2016

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LAW OFFICES OF RICHARD L. ANTOGNIN

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/s/ Richard L. Antognini

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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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A. LEAVE SHOULD BE GRANTED TO AMEND THE COMPLAINT...............12


1. LEAVE IS FREELY GRANTED.............................................................12-13
a. DEFENDANTS WILL NOT BE DELAYED
OR PREJUDICED.........................................................................13-14
b. PLAINTIFF OFFERS HER SECOND AMENDED
COMPLAINT IN GOOD FAITH..................................................14-15
c. THE AMENDMENT IS NOT FUTILE.........................................15-16
2. THE AMENDMENT SHOULD BE PERMITTED...................................16
3. PLAINTIFF HAS ESTABLISHED WHY THE
AMENDMENT IS REQUIRED................................................................16-17

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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

10 Plaintiff to amend the complaint.


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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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possibly be "re-indorsed" as it represented to the appellate panel, and Nationstar's failure to


produce the documents in connection with the "re-indorsement," as ordered by this Court.

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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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therefore they are separately named as Defendants.


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

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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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indorsement" a factual impossibility. Nationstar further failed to produce or file documentation

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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and refused to appear for its oral exam.


On April 3, 2013, Plaintiff filed an adversary complaint objecting to Claim 9-1.

The

24 Summons was issued on the same date.


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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.

2 That Motion was denied on September 11, 2013.


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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

8 Motion for Summary Judgment and entered Judgment on December 5, 2014.


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Plaintiff appealed the Judgment to the Bankruptcy Appellate Panel.


The BAP reversed summary judgment on three of the four causes of action, Declaratory
Relief / Determine The Nature, Extent and Validity of Lien FRBP 7001 828 U.S.C. 2201, Quasi

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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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Court at the 1/21/16 hearing.


On or about January 28, 2016, Louis Esbin, Plaintiff's lead counsel and local counsel for

24 the purposes of Michael S. Riley's pro hac vice status, resigned while Mr. Esbin was out of the
25 country.
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On February 12, 2016, Plaintiff substituted Richard L. Antognini into the case and
adversary proceedings.

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On March 3, 2016, Adam N. Barasch, counsel for Nationstar entered a declaration in a

2 status report (Adv. Doc. No. 138) stating in part:


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"4. Due to the complexity of this matter in addition to


multiple other matters for this Plaintiff in which new
Plaintiffs counsel needed to become familiar, the parties
were only able to meet and confer on March 1, 2016, two
days prior to the deadline to file a Joint Status Report.
5. During the phone conference on March 1, 2016, the
specific requirements of the Joint Status Report that is due
on March 3, 2016 were discussed. Given that Plaintiffs
counsel had only recently substituted into this case, I
suggested and Plaintiffs counsel agreed to postpone
filing of the Joint Status Report and continuing the Status
Conference until the April Baroni Day. Plaintiffs
counsel agreed.
5. As such, it is requested the requirement to file a Joint
Status Report be continued until April 15, 2016 with the
Status Conference continued to April 29, 2016 at 10:00
A.M."
On March 21, 2016, the Court entered an order continuing the status conference to April

16 29, 2016 (Adv. Doc. No. 141).


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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

23 Report. To date the Court has not issued the order.


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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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adversary proceedings to the June 24, 2016, Baroni Day. 1

This Motion for Leave follows the BAP proceedings and incorporates relevant parties,

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facts and causes of action following the appellate proceedings.


IV.

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ARGUMENT

A.

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LEAVE SHOULD BE GRANTED TO AMEND THE COMPLAINT

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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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1.

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LEAVE IS FREELY GRANTED

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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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b.

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PLAINTIFF OFFERS HER SECOND AMENDED COMPLAINT IN GOOD FAITH

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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,

Nationstar represented that the indorsements appearing on the two

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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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The documents pertaining to the purported "re-indorsement" were ordered produced to

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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would appear on the Baroni Note, rather than three.


Plaintiffs new claims for relief under California Civil Code Sections 1709 and 1710,

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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"has never mischaracterized the nature of the lawsuit").

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c.

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THE AMENDMENT IS NOT FUTILE

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Nationstar failed to evidence their position as a secured creditor or an agent of a secured

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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still not been established through credible evidence.

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In sum, Plaintiffs Second Amended Complaint was filed in good faith, objects to Claim 9-

2 1, contains claims similar to those originally asserted, does not prejudice Nationstar, and is not
3
4

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.

5
2.

THE AMENDMENT SHOULD BE PERMITTED

7
8

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
11

allowing the amendment of pleadings. See Foman v. Davis, 371 U.S. 178, 182 (1962) (In the

12
absence of . . . undue delay, bad faith or dilatory motive on the part of the movant . . . undue
13
14

prejudice to the opposing party by virtue of allowance of the amendment . . . the leave sought

15 should, as the rules require, be freely given.).


16

3.

17

PLAINTIFF HAS ESTABLISHED WHY THE AMENDMENT IS REQUIRED

18

The party seeking leave to amend need only establish the reason why amendment is

19

required (justice so requires). Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 406-407 (11th

20
Cir. 1989). The burden is then on the party opposing the motion to convince the court that
21
22

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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The documents produced by Nationstar do not demonstrate that Nationstar or SARM


2004-5 are the party to whom Plaintiffs Chapter 11 Plan payments are due. The Ninth Circuits

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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
3

Cir. 2010)(quoting Falk v. Allen, 739 F.2nd 461, 461 (9th Cir. 1984).

V.

5
CONCLUSION

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7

For the reasons discussed above, plaintiff respectfully seeks leave of this Court to file the

8 proposed Amended Complaint.


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10
11
12

WHEREFORE, the Plaintiff respectfully requests this Court enter an order:


a. Granting Plaintiffs leave to amend the Second Amended Complaint;
b. Accepting the Second Amended Complaint attached and incorporated by reference as
Exhibit 1, as that to be filed and served on all parties in interest;

13
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15

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.

16
Dated: June 17, 2016
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18
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LAW OFFICES OF RICHARD L. ANTOGNIN


/s/ Richard L. Antognini
Richard Antognini, Esq.
Attorneys for the Plaintiff and Reorganized Debtor

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DECLARATION OF MICHAEL S. RILEY

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I, MICHAEL S. RILEY, declare:


1.

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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8

do so, I can competently testify to those facts.


2.

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
12

whom appear to be subsidiaries of the same parent company, but whose true relationship is

13
unknown to Plaintiff therefore they are separately named as Defendants.
14
15

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:
19
20

(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

21
years never asserting it was acting for another party. During the two year period from
22
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.
26
27

(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").
3
4

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.

5
6
7

(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
11

documentation in connection with the sale and custody of the Baroni Note and Deed of Trust, the

12
BAP findings put into question the entire chain of ownership of the Note, beneficial interest in the
13
14
15

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
19

note filed with Claim 9-1) contains three purported indorsements; a) an undated, stamped

20
indorsement to blank allegedly executed by Lehman Brothers Holdings, Inc., b) an undated
21
22

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
26
27

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
3
4

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

5
6
7

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.
11

(5) Nationstar failed to inform this Court in the first instance, and the BAP on appeal that

12
the indorsements appear on the back side of the original signature page, rendering "re13
14

indorsement" a factual impossibility. Nationstar further failed to produce or file documentation

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
19

filed in the case as well as all purported underlying transactions connected to the Baroni Note.

20
(6) Nationstar's 2015 vintage "re-indorsement" representation gives rise to the practice of
21
22

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
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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
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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

(Nationstar 2004 Order).

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

and refused to appear for its oral exam.

20
6.

On April 3, 2013, Plaintiff filed an adversary complaint objecting to Claim 9-1.

The

21
22

Summons was issued on the same date.

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
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8.

On July 3, 2013, Nationstar filed a Motion to Dismiss the FAC, again on its own behalf.

That Motion was denied on September 11, 2013.

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Nationstar filed an Answer to the FAC on November 15, 2013, denying SARM 2004-5 is

2 the holder, investor, or assignee of the Debt Instruments.


3
4

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

Motion for Summary Judgment and entered Judgment on December 5, 2014.


11.

8 12.

Plaintiff appealed the Judgment to the Bankruptcy Appellate Panel.


The BAP reversed summary judgment on three of the four causes of action, Declaratory

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

Court at the 1/21/16 hearing.

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.

On March 3, 2016, Adam N. Barasch, counsel for Nationstar entered a declaration in a

25 status report (Adv. Doc. No. 138) stating in part:


26
27

"4. Due to the complexity of this matter in addition to


multiple other matters for this Plaintiff in which new
Plaintiffs counsel needed to become familiar, the parties

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were only able to meet and confer on March 1, 2016, two


days prior to the deadline to file a Joint Status Report.

1
2

5. During the phone conference on March 1, 2016, the


specific requirements of the Joint Status Report that is due
on March 3, 2016 were discussed. Given that Plaintiffs
counsel had only recently substituted into this case, I
suggested and Plaintiffs counsel agreed to postpone
filing of the Joint Status Report and continuing the Status
Conference until the April Baroni Day. Plaintiffs
counsel agreed.

3
4
5
6
7

5. As such, it is requested the requirement to file a Joint


Status Report be continued until April 15, 2016 with the
Status Conference continued to April 29, 2016 at 10:00
A.M."

8
9
10
11 18.

On March 21, 2016, the Court entered an order continuing the status conference to April

12 29, 2016 (Adv. Doc. No. 141).


13 19.

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

19 Report. To date the Court has not issued the order.


20 20.

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

adversary proceedings to the June 24, 2016, Baroni Day.


\\\

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This Motion for Leave follows the BAP proceedings and incorporates relevant parties,

2 facts and causes of action following the appellate proceedings.


3
4
5
6
7

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

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EXHIBIT 1

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1 Richard L. Antognini, Esq. (Cal. Bar No. 075711)


Law Office of Richard L. Antognini
2 2036 Nevada City Highway, Suite 636
Grass Valley, California 95945-7700
3 Tel: (916) 295-4896 | Email: rlalawyer@yahoo.com
4 Michael S. Riley (Fla. Bar #265918 Pro Hac Vice)
The Law Offices of Michael S. Riley
5 401 E. Las Olas Blvd., Suite #130, Fort Lauderdale, FL 33301
Tel: (818) 877-6423 | Email: mriley8@aol.com
6
Attorneys for Reorganized Debtor and Appellant, Allana Baroni
7
8
UNITED STATES BANKRUPTCY COURT
9
CENTRAL DISTRICT OF CALIFORNIA - SAN FERNANDO VALLEY DIVISION
10
Chapter 11 Case
Bankr. Case No. 1:12-bk-10986-MB
Adv. Proc. No. 1:13-ap-01069-MB

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.

REORGANIZED DEBTORS SECOND


AMENDED ADVERSARY COMPLAINT
FOR:
(OBJECTION TO CLAIM 9-1)
1. DECLARATORY RELIEF TO
DETERMINE) THE NATURE, EXTENT
AND VALIDITY OF) LIEN;
2. QUASI CONTRACT / UNJUST
ENRICHMENT
3. VIOLATION OF CALIFORNIA
BUSINESS AD PROFESSIONS CODE
SECTION 17200 ET SEQ
4. ACCOUNTING
5. SLANDER OF TITLE
6. VIOLATION OF CALIFORNIA CIVIL
CODE SECTIONS 1709 AND 1710
DEMAND FOR JURY TRIAL

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TABLE OF CONTENTS

1
2
I.

NATURE OF ACTION...................................................................................................3-8

3
4

II. THE PARTIES.................................................................................................................8-9

5 III. JURISDICTION AND VENUE......................................................................................10


6 IV. PROCEDURAL AND FACTUAL BACKGROUND....................................................10-11
7 V. GENERAL ALLEGATIONS.........................................................................................11-18
8
9

A. Origination............................................................................................................11-13
B. The Notes...............................................................................................................13-16

10
11
12

C. The Assignments of the Deed of Trust Are Void..................................................16-18


D. Nationstar Is Not The Servicing Agent For SARM 2004-5..................................18

13 IV. CLAIMS FOR RELIEF...................................................................................................19-28


14
15
16
17
18
19

A. FIRST CLAIM FOR RELIEF- DECLARATORY RELIEF /


INVALIDATE LIEN [FED. R. BANK. 7001].....................................................19-20
B. SECOND CLAIM FOR RELIEF - UNJUST ENRICHMENT............................20-22
C. THIRD CLAIM FOR RELIEF -VIOLATION OF CALIFORNIA BUSINESS
AND PROFESSIONS CODE 17200 ET SEQ...................................................22-25
D. FOURTH CLAIM FOR RELIEF- ACCOUNTING..........................................25-26

20
21
22
23

E. FIFTH CLAIM FOR RELIEF - SLANDER OF TITLE......................................26-27


F. SIXTH CLAIM FOR RELIEF - VIOLATION OF CALIFORNIA CIVIL CODE
SECTIONS 1709 AND 1710.............................................................................27-28

24 V. PRAYER FOR RELIEF...................................................................................................29


25 VI. JURY DEMAND.............................................................................................................30
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Allana Baroni ("Plaintiff " or "Baroni") hereby files her REORGANIZED DEBTOR'S

2 SECOND AMENDED COMPLAINT FOR: 1. DECLARATORY RELIEF TO DETERMINE


3
4

THE NATURE, EXTENT AND VALIDITY OF LIEN; 2. QUASI CONTRACT UNJUST


ENRICHMENT; 3. VIOLATION OF CALIFORNIA BUSINESS AD PROFESSIONS CODE

5
6
7

SECTION 17200, ET SEQ.; 4. ACCOUNTING; 5. SLANDER OF TITLE; AND 6. VIOLATION


OF CALIFORNIA CIVIL CODE SECTIONS 1709 AND 1710; with DEMAND FOR JURY

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

on the Debt Instruments.

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.

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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

8 executed by Lehman Brothers Holdings, Inc., b) an undated stamped indorsement to Lehman


9 Brothers Holdings, Inc. allegedly executed by Lehman Brothers Bank, FSB, and c) an undated
10 indorsement to Lehman Brothers Bank FSB, purportedly executed by Platinum Capital Group.
11

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

Memorandum Decision in connection with the appellate proceedings.

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

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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.

The documents pertaining to the purported "re-indorsement" were ordered produced to

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

8 would appear on the Baroni Note, rather than three.


9 6.

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

mortgage backed security as Defendant Nationstar represents.

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.

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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

was never amended to reflect the identity of a true creditor.

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

improper purpose, including the unjust enrichment of Defendants.


13.

In further conflict with Nationstar's representations on summary judgment is its November

28
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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

to unjustly enrich Defendants.

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
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1 through discovery in this case.


2

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.

Nationstar Mortgage, LLC is a Delaware limited liability company doing business in

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

Trust, Mortgage Pass Through Certificates, Series 2004-5.

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

23 County, CA Office of the Recorder.


24 21.

Aurora Loan Services, LLC is a Delaware limited liability company, headquartered at

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

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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

Note #1, and one appearing Note #2.

12
24.

Structured Asset Securities Corporation is a Delaware corporation doing business in

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,

23 Mortgage Pass Through Certificates, Series 2004-5.


24 ///
25 ///
26
27

///
///

28
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1
III.

JURISDICTION AND VENUE

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

Central District of California, San Fernando Valley Division.

11

IV.

12

PROCEDURAL AND FACTUAL BACKGROUND

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

(Nationstar 2004 Order).

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.

On April 3, 2013, Plaintiff filed an adversary complaint objecting to Claim 9-1.

Summons was issued on the same date.

27
28
10

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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

Summons was issued on June 11, 2013.


32.

On July 3, 2013, Nationstar filed a Motion to Dismiss the FAC, again on its own behalf.

5
6
7

That Motion was denied on September 11, 2013.


33.

Nationstar filed an Answer to the FAC on November 15, 2013, denying SARM 2004-5 is

8 the holder, investor, or assignee of the Debt Instruments.


9 34.

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

Motion for Summary Judgment and entered Judgment on December 5, 2014.

12
35.

Plaintiff appealed the Judgment to the Bankruptcy Appellate Panel.

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

facts, and causes of action following the appellate actions.

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
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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

Twickenham Capital Corporation, LLC ("Twickenham").


39.

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

i. Documents containing the forged signature of James Baroni:


a. The Housing Financial Discrimination Act of 1977, Fair Lending Notice;

12
b. Servicing Disclosure Statement;
13
14

c. Privacy Policy Disclosure;

15

d. Consumer Handbook on Adjustable Rate Mortgages;

16

e. Mortgage Broker Fee Disclosure;

17

f. Real Estate Agency Disclosure;

18

g. Mortgage Origination Agreement;

19

h. Platinum Capital Group Fee Agreement;

20
i. Request for Copy or Transcript of Tax Form #4507;
21
22
23
24
25
26
27

j. Tax Form Authorization Form #8821;


k. Uniform Residential Loan Application.
ii. Documents not executed in the first instance:
l. Good Faith Estimate Provider Relationship, Flood Zone Determination Services;
m. Good Faith Estimate Provider Relationship, Document Systems Inc. DocMagic;
n. Good Faith Estimate Provider Relationship, MGIG;

28
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o. Good Faith Estimate Provider Relationship, Hansen Quality Loan Servicing;

p. Good Faith Estimate Provider Relationship, Data Research, Inc.;

q. Good Faith Estimate Provider Relationship, First America, Inc.

r. Good Faith Estimate Provider Relationship, CBS companies;

5
s. Good Faith Estimate Provider Relationship, Informative Research,

t. Good Faith Estimate;

u. Truth in Lending Disclosure Statement.

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
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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

withdraw the filings.

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

Note and releasing RFC's security interest in the same.

12
43.

The documents filed in the case including the Claim itself, do not demonstrate the release

13
14

of RFCs security interest in the Baroni Note.

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
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Plaintiff alleges that SARM 2004-5 was never properly formed or functioning under any

2 applicable law as a real estate mortgage investment conduit ("REMIC").


3
4

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

15 Note was purportedly "re-indorsed."


16 49.

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

documents in connection with the purported indorsements.

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

Nationstar float its "re-indorsement" argument.

27
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The undated, unauthenticated, forged indorsements and "re-indorsements" appearing on

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

C. The Assignments of the Deed of Trust Are Void.

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

15 secured nature of the Claim.


16 54.

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

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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

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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

the DOT holding a secured claim against Plaintiff's estate.

D. Nationstar Is Not the Servicing Agent for SARM 2004-5.

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

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IV.

CLAIMS FOR RELIEF

Desc

A.

FIRST CLAIM FOR RELIEF

DECLARATORY RELIEF / INVALIDATE LIEN [FED. R. BANK. 7001]

6
7 66.

Plaintiff hereby incorporates by reference each and every one of the preceding paragraphs

8 as if the same were fully set forth herein.


9

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

purported, undated, unauthenticated, conflicting indorsements and purported "re-indorsements," as

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

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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

SECOND CLAIM FOR RELIEF

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

Property and unjustly enriching Defendants.

28
20

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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

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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

THIRD CLAIM FOR RELIEF


VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE 17200 ET SEQ

7 77.

Plaintiff re-alleges and incorporates by reference each and every one of the preceding

8 paragraphs as if the same were fully set forth herein.


9

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

collect mortgage payments.

28
22

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Plaintiff alleges, that Defendants fraudulently enforced a debt obligation in which they had

2 no pecuniary, equitable, or legal interest.


3
4

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

consumers, including Plaintiff.

28
23

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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

Code Sections 17203 and 17204.


93.

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.

Plaintiff alleges, that as a result of Defendants violations of California Business and

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

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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.

FOURTH CLAIM FOR RELIEF ACCOUNTING

5
6
7

97.

Plaintiff re-alleges and incorporates by reference each and every one of the preceding

paragraphs as if the same were fully set forth herein.

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

shortcomings in foreclosure governance processes, foreclosure document preparation processes,


and oversight and monitoring of third party law firms and vendors; (5) been found by the Office

28
25

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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.

As a result of Defendant's conduct, Plaintiff made payments to Defendants for a period of

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

and SARM 2004-5 refusing to provide this accounting.

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

16 paragraphs as if the same were fully set forth herein.


17 103.

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

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Plaintiff alleges that the void assignments caused Plaintiff significant and ongoing damage

2 to Plaintiff and Plaintiff's title to her property.


3

F.

SIXTH CLAIM FOR RELIEF

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

8 paragraphs as if the same were fully set forth herein.


9 107.

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

from Plaintiff including under Plaintiffs Plan of Reorganization;

15

b. Defendants represented to Plaintiff, and filed a Claim in the bankruptcy case

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

Baroni Note, including under the Court's FRBP 2004 Orders;

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

the Baroni Note described herein;

23

d. Defendants represented to Plaintiff that the Baroni Note was properly transferred and

24

accepted into SARM 2004-5;

25

e. Defendants represented to Plaintiff that they are acting on behalf of the certificate

26

holders of SARM 2004-5;

27
28
27

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f. Defendants represented to Plaintiff that they have authority to act on behalf of the

certificate holders of SARM 2004-5;

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

recoveries for Defendants.

10

i. Defendants represented that Plaintiff was time barred from taking action in

11

connection with the forged mortgage loan documents and disclosures.

12
108.

The Defendants representations described herein are false.

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.

Plaintiff reasonably relied on the Defendants representations.

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

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WHEREFORE, Plaintiff prays for relief and judgments as follows:

2 1.

For general and special damages according to proof;

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

title to the Property;

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

date the funds were first received by Plaintiff;

17 6.

For costs of suit incurred herein;

18 7.

For actual and reasonable attorneys' fees incurred; and

19

8.

For such other and further relief as this Court may deem appropriate.

20
21
22

\\\

23 \\\
24 \\\
25 \\\
26
27

\\\
\\\

28
29

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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

LAW OFFICES OF RICHARD ANTOGNINI

Dated: June 19, 2016

/s/ Richard L. Antognini


_____________________
Richard L. Antognini Esq.
Attorneys for Reorganized Debtor and Plaintiff

10
11
12
13

Dated: June 19, 2016

LAW OFFICES OF MICHAEL S. RILEY

14

/s/ Michael S. Riley


____________________
Michael S. Riley, Esq.
Attorneys for Reorganized Debtor and Plaintiff

15
16
17
18
19
20
21
22
23
24
25
26
27
28
30

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EXHIBIT 1

Desc

Case
CaseForm
1:12-bk-10986-AA
1:13-ap-01069-MB
B 10 (Official
10) (12/11)

Claim
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FOR THE CENTRAL
DISTRICT
Main Document
4 Page
57 of OF
143
PROOF OF CLAIM

UNITED STATES BANKRUPTCY COURT

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.

Name and address where notices should be sent:


Nationstar Mortgage, LLC
Bankruptcy Department
350 Highland Drive
Lewisville, Texas 75067

Court Claim Number:


(If Known)

Telephone Number: (800) 766-7751

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

Check this box if you are the debtor


or trustee in this case.

email:
$1,480,705.83

1. Amount of Claim as of Date Case Filed:


If all or part of the claim is secured, complete item 4.

If all or part of the claim is entitled to priority, complete item 5.


7 Check this box if the claim includes interest or other charges in addition to the principal amount of the claim. Attach a statement that itemizes interest or
charges.
2. Basis for Claim:
(See instruction #2)

Money Loaned

3. Last four digits of any number by which the


creditor identifies debtor:
xxxxxx5132

3a. Debtor may have scheduled account as:

(See instruction #3a)


4. Secured Claim (See instruction #4)
Check the appropriate box if the claim is secured by a lien or property or a right of setoff,
attach required redacted documents, and provide the requested information.

3b. Uniform Claim Identifier (optional):

(See instruction #3b)


Amount of arrearage and other charges, as of the time case
was filed, included in secured claim, if any:
$46,981.88

Nature of Property or right of setoff: _ Real Estate Motor Vehicle Other


Describe:
3435 Rio Road, Carmel, California 93921

Basis for perfection:

Value of Property:

Amount of Secured Claim:

Recordation of Lien
$1,480,705.83

Annual Interest Rate:


3.0000%
Fixedor_Variable
Amount of Unsecured:
(when case was filed)
5. Amount of Claim Entitled to Priority under 11 U.S.C. 507(a). If any part of the claim falls into one of the following categories, check box specifying
the priority and state the amount.
Contributions to an
Domestic support obligations under 11 Wages, salaries, or commissions (up to $11,725*)
U.S.C. 507(a)(1)(A) or (a) (1)(B).
earned within 180 days before the case was filed or the employee benefit plan Amount entitled to priority:
debtor's business ceased, whichever is earlier - 11 U.S.C. 11 U.S.C. 507(a)(5).
507(a)(4).
Up to $2,600* of deposits toward
purchase, lease, or rental of property or
services for personal, family or household
use - 11 U.S.C. 507(a)(7).

Taxes or penalties owed to governmental units - 11


U.S.C. 507 (a)(8).

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

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B 10 (Official Form 10) (12/11)


7. Documents: Attached are redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements
of running accounts, contracts, judgments, mortgages, and security agreements. If the claim is secured, box 4 has been completed, and redacted copies of
documents providing evidence of perfection of a security interest are attached. (See instruction #7, and the definition of "redacted.")
DO NOT SEND ORIGINAL DOCUMENTS. ATTACHED DOCUMENTS MAY BE DESTROYED AFTER SCANNING.
If the documents are not available, please explain:

8. Signature: (See instruction #8)


Check the appropriate box.
I am the creditor. _I am the creditor's authorized agent.
(Attach copy of power of attorney, if any.)

I am the trustee, or the debtor.


(See Bankruptcy Rule 3004.)

I am a guarantor, surety, indorser, or other


codebtor. (See Bankruptcy Rule 3005.)

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:

/s/ Craig A. Edelman


Signature
09/15/2012
Date

(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

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B 10 (Attachment A) (12/11)
Chapter: 11

FOR THE CENTRAL DISTRICT OF CALIFORNIA, SAN FERNANDO VALLEY DIVISION


Judge: Alan M. Ahart
Trustee: :

Mortgage Proof of Claim Attachment


If you file a claim secured by a security interest in the debtor's principal residence, you must use this form as an
attachment to your proof of claim. See Bankruptcy Rule 3001(c)(2).

Name of debtor:

Allana Baroni

Case Number:

SV12-10986-AA

Name of creditor:

Nationstar Mortgage, LLC

Last four digits of any number


you identify the debtor's account:

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

Total interest due as of the Conversion date $50,645.83


3.

(1)

$1,430,000.00

(2)

+ $50,645.83

(3)

$1,480,645.83

Amount
$14,895.83
$35,750.00
Copy total here

>

Total principal and


interest due

Part 2: Statement of Pre-Conversion Fees, Expenses, and Charges


Itemize the fees, expenses, and charges due on the claim as of the conversion date (include in the Amount of Claim
listed in Item 1 on the Proof of Claim form).
Description
Dates incurred
Amount
1.
2.
3.
4.
5.
6.
7.
8.
9.

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@

$15.00 incurred on 08/03/11


$15.00 incurred on 09/02/11
$15.00 incurred on 12/30/11
$15.00 incurred on 01/25/12

(10)

11. Tax advances (non-escrow)


12. Insurance advances (non-escrow)

(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

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FOR THE CENTRAL DISTRICT OF CALIFORNIA, SAN FERNANDO VALLEY DIVISION


Judge: Alan M. Ahart
Trustee: :

B 10 (Attachment A) (12/11)
Chapter: 11

Part 3: Statement of Amount Necessary to Cure Default as of the Conversion Date


Does the installment payment amount include an escrow deposit?
_No
Yes. Attach to the Proof of Claim form an escrow account statement prepared as of the conversion date in a form
consistent with applicable nonbankruptcy law.

1.

Installment
payments due

Date last payment received


by creditor

(1) 13

Number of installment
payments due:

2.

Amount of
installment
payments due
February 2011 to April 2011
May 2011 to February 2012

3 P&I installments @ $3,723.96 =


10 P&I installments @ $3,575.00 =

Total installment payments due as of


the preconversion date
3.

01/18/2011

Calculation of
cure amount

$46,921.88

Add total preconversion fees, expenses, and charges

$11,171.88
$35,750.00
Copy total
here

Copy total here


Part 2

> (2)

>

$46,921.88

+ $60.00

Subtract total of unapplied funds (funds received but


not credited to account)

$0.00

Subtract amounts for which debtor is entitled to a


refund
Total amount necessary to cure default as of the
conversion date

___________

(3)

$46,981.88

Copy total onto Item 4


of Proof of Claim form

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
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147
9-1 Part
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Entered Desc
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EXHIBIT 3

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FILED
NOV 10 2015

NOT FOR PUBLICATION

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL


OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

5
6
7
8
9
10
11
12
13

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*

Argued and Submitted on September 24, 2015


at Malibu, California

15
Filed November 10, 2015
16
17

Appeal from the United States Bankruptcy Court


for the Central District of California

18

Honorable Alan M. Ahart, Bankruptcy Judge, Presiding

19
Appearances:
20

Louis J. Esbin argued for appellant Allana Baroni;


Bernard Kornberg of Severson & Werson argued for
appellee Nationstar Mortgage, LLC.

21
22

Before: KURTZ, DUNN and TAYLOR, Bankruptcy Judges.

23
24
25
26
27
28

This disposition is not appropriate for publication.


Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
See 9th Cir. BAP Rule 8024-1.

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INTRODUCTION

1
2

Desc

The debtor Allana Baroni1 commenced an adversary proceeding

against Nationstar Mortgage LLC challenging Nationstars proof of

secured claim, and the bankruptcy court granted summary judgment

in favor of Nationstar.

there was no genuine factual dispute that Nationstar possessed

the original promissory note indorsed in blank, so Nationstar

qualified as a person entitled to enforce the note and hence had

standing to file the proof of claim.

The bankruptcy court determined that

Allana asserts that

10

Nationstar demonstrated neither that it had a right to enforce

11

the note and the deed of trust nor that it had an agency

12

relationship with someone else who did.

13

Our resolution of this appeal largely hinges on our answer

14

to a single question: when a creditor, in the process of

15

supporting a proof of claim based on a promissory note, presents

16

the bankruptcy court with two materially different copies of the

17

indorsements supposedly accompanying the note, can the court on

18

summary judgment correctly determine that there is no genuine

19

dispute that the note has been duly indorsed in blank?

20

this question in the negative.

21

summary judgment against Allana on one of Allanas four claims

22

for relief can be affirmed on alternate grounds, summary judgment

23

on the other three claims for relief must be reversed.

24
25

We answer

While the bankruptcy courts

Accordingly, we AFFIRM IN PART, REVERSE IN PART AND REMAND


FOR FURTHER PROCEEDINGS.

26
27
1

28

For the sake of clarity, we refer to Allana and her husband


James Baroni by their first names. No disrespect is intended.
2

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FACTS

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2

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In February 2004, Allanas husband James refinanced a parcel

of residential real property located in Carmel, California.

According to several of Allanas filings in her bankruptcy case,

the Baronis did not actually reside in the Carmel property but

instead used it as a rental property.

refinancing, James executed a note in the amount of $1,430,000.00

and a deed of trust securing repayment of the note.

In furtherance of the

At the time of the refinancing, James owned the Carmel

10

property as his sole and separate property.

11

the refinancing, James executed a grant deed conveying the Carmel

12

property to himself and Allana as husband and wife as joint

13

tenants.

14

the Carmel property subject to the deed of trust and in that

15

sense has admitted that she might be obliged to repay the Carmel

16

note in order to prevent foreclosure of her real property

17

interest.

18

certain who she is obliged to pay.

19

Carmel note and the Carmel deed of trust have been irrevocably

20

split, which has rendered the deed of trust unenforceable.

21

But shortly after

Allana does not dispute that she took her interest in

On the other hand, Allana claims that she is not


She also claims that the

In February 2012, Allana commenced her bankruptcy case by

22

filing a voluntary chapter 132 petition.

23

she voluntarily converted her case from chapter 13 to chapter 11.

Later that same month,

24
25
26
27
28

Unless specified otherwise, all chapter and section


references are to the Bankruptcy Code, 11 U.S.C. 101-1532, and
all "Rule" references are to the Federal Rules of Bankruptcy
Procedure. All Civil Rule references are to the Federal Rules
of Civil Procedure, and all Evidence Rule references are to the
Federal Rules of Evidence.
3

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Desc

In September 2012, Nationstar filed a proof of claim asserting a

claim in Allanas bankruptcy case in the approximate amount of

$1,480,000.00.

of a promissory note and a deed of trust both apparently executed

by James in February 2004 (respectively, the POC Note Copy and

the POC Trust Deed Copy).

as the borrower and Platinum Capital Group as the lender.

principal amount stated in the POC Note Copy is $1,430,000.00.

Nationstar attached to the proof of claim copies

The POC Note Copy identifies James


The

The POC Note Copy also contains on the signature page what

10

appears to be James signature.

The page immediately following

11

the signature page is blank, with the exception of what appear to

12

be three indorsements.3

13

indorsement appears to be signed by an assistant secretary of

14

Platinum Capital Group and appears to make the note payable to

15

Lehman Brothers Bank FSB.

16

first indorsement is another indorsement apparently signed by an

17

authorized signatory of Lehman Brothers Holdings, Inc.

18

pay to the order line of that indorsement is blank.

19

Immediately beneath the Lehman Brothers Holdings, Inc.

20

indorsement is a third indorsement apparently signed by a Vice

21

President of Lehman Brothers Bank, FSB and apparently making the

22

note payable to Lehman Brothers Holdings, Inc.4

Reading from left to right, the first

Immediately to the right of the

The

23
24
25

A copy of this indorsements page is attached as Appendix A


to this decision.
4

26
27
28

Of course, reading these undated indorsements in this order


makes no sense except for the purpose of describing their
relative positions on the indorsements page. The three
indorsements only can be understood sensibly in the following
(continued...)
4

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Desc

The POC Trust Deed Copy identifies James as the borrower,

Platinum Capital Group as the lender, and MERS as the

beneficiary, but solely as the nominee of the lender and the

lenders successors and assigns.

the first page of the POC Trust Deed Copy indicates that the

trust deed was recorded in the Monterey County Recorders Office

in March 2004.

transfer of an interest in the Carmel property to secure the

repayment of the Carmel note.

10

The recording information on

The POC Trust Deed Copy further reflects the

In April 2013, over Nationstars objection, Allana obtained

11

an order confirming her second amended reorganization plan.

12

relevant part, Allana set forth in her disclosure statement and

13

plan that she disputed and objected to Nationstars proof of

14

claim but that, to the extent the bankruptcy court ultimately

15

allowed any claim secured by the Carmel property, she would pay

16

the holder of that allowed claim in accordance with the terms of

17

her plan.

18

In

That same month, Allana filed her complaint against

19

Nationstar.

In the complaint, Allana pointed out that neither

20

the Carmel note nor the Carmel deed of trust identify Nationstar

21

in any way.

22

proof of claim established that Nationstar was entitled to

23

enforce either the Carmel note or the Carmel deed of trust.

Therefore, Allana posited, nothing in Nationstars

24
4

25
26
27
28

(...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

Allana also included in her complaint copies of a number of

communications she received from third parties.

communications opine (without actually proving) that the Carmel

note was sold to a mortgage securitization trust and that the

trust owns the note.

concept of note ownership with the concept of being a holder of

the note.

its standing to file the proof of claim if it demonstrated its

title to the Carmel note within the chain of ownership.

These

The complaint then proceeds to conflate the

The complaint asserts that Nationstar only could prove

10

According to the complaint, Allana would be unjustifiably exposed

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

13

holder of the Carmel note and hence had standing to file a

14

proof of claim based on the Carmel note.

15

In addition, Allanas complaint pointed out that there was

16

no documentation indicating that Nationstar is the beneficiary

17

under the deed of trust or an assignee of the beneficiary.

18

Based on the allegations set forth above, Allanas complaint

19

included a claim for declaratory relief seeking a judicial

20

determination as to whether Nationstars proof of claim should be

21

allowed or disallowed and whether that claim was secured or

22

unsecured.

23

alleging that Nationstar would be unjustly enriched if its claim

24

were allowed in the absence of proof that Nationstar was

25

entitled to enforce the Carmel note and deed of trust.

26

complaints third claim for relief under the Fair Debt Collection

27

Practices Act, 15 U.S.C. 1692, et seq., alleged that Nationstar

28

falsely represented that it was entitled to enforce the Carmel

The complaint also included a claim for relief

The

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note and deed of trust by filing the proof of claim.5

fourth and final claim for relief, based on all of the same

allegations, set forth a claim under Californias unfair

competition law, Cal. Bus. & Profs. Code 17200, et seq.

Desc

Allanas

Nationstar sought dismissal of Allanas complaint under

Civil Rule 12(b)(6), but the bankruptcy court denied Nationstars

dismissal motion.

complaint in November 2013, and close to a year later, in

September 2014, Nationstar filed its summary judgment motion.

Nationstar then filed an answer to Allanas

10

Even though Nationstar did not so indicate in its proof of claim,

11

Nationstar identified itself in the summary judgment motion as

12

the servicing agent for the owner of the note, Wells Fargo Bank,

13

as trustee of the securitization trust referenced in Allanas

14

complaint.

15

In order to prove up Wells Fargos interest in the Carmel

16

note, Nationstar submitted the declaration of Edward Hyne.

Hyne

17

identified himself as a Litigation Resolution Analyst employed

18

by Nationstar.

19

familiarity with the manner in which Nationstars business

20

records are prepared and maintained.

21

Nationstars records are prepared by Nationstar employees and

22

agents with personal knowledge of the facts set forth therein or

23

with information supplied by others with personal knowledge.

By virtue of his employment, Hyne claimed

Hyne further claimed that

24
5

25
26
27
28

The FDCPA claim also alleged that Nationstar has


misrepresented the amount due on the note and has falsely failed
to credit Allana for all of the payments she has made. Allana
has abandoned these issues for appeal purposes by not addressing
them in her opening appeal brief. Christian Legal Soc'y v. Wu,
626 F.3d 483, 48788 (9th Cir. 2010); Brownfield v. City of
Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010).
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In a bit of a disconnect, Hyne stated that the facts set

forth in his declaration were based on the files and records for

[Allanas] loan, but he does not identify those loan files and

records as Nationstars business records.

accurate to characterize them as Nationstars business records.

There is no reason to suspect let alone conclude that anyone at

Nationstar prepared any of the documents pertaining to the

origination or sale of the Carmel loan.

summary judgment record suggests that Nationstar played any role

Nor would it seem

In fact, nothing in the

10

in the origination or sale of that loan, so it makes no sense

11

that Nationstar would have prepared any documents pertaining to

12

the origination or sale of the loan.

13

Based on the above description of the source of his

14

knowledge, Hyne asserted that the note attached as Exhibit A to

15

his declaration was a true copy of the Carmel note and that

16

Exhibit C to his declaration a mortgage loan sale & assignment

17

agreement between Lehman Brothers Holdings, Inc. as seller and

18

Structured Asset Securities Corp. as buyer evidences the

19

transfer of the Carmel note to Wells Fargo as Trustee for the

20

Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-

21

Through Certificates, Series 2004-5.

22

Unfortunately, Hyne did not specify what was purportedly

23

transferred to Wells Fargo: possession of the note, beneficial

24

ownership of the note, mere legal title to the note, or the right

25

to payment under the note.

26

agreement attached as Exhibit C does not evidence or even

27

reference any such transfers to Wells Fargo.

28

Moreover, the sale and assignment

Meanwhile, attached to Exhibit C is a single page on which


8

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everything is redacted, except for the following single line of

information: 17362807

Hyne and Nationstar presumably claim that this redacted page

attached to Exhibit C evidences the inclusion of the Carmel note

in the mortgage pool covered by the sale and assignment

agreement.

schedules that are supposed to identify the loans covered by the

sale and assignment agreement, but both of those schedules are

blank, except for a type-written notation on the face of each

3 Carmel

CA

93923 1430000 1430000.6

Immediately preceding the redacted page are two

10

schedule indicating that the actual listing of covered loans is

11

on file in the Philadelphia offices of Morgan, Lewis & Bockius

12

LLP.

13

agreement of the relationship between the blank schedules and the

14

redacted page immediately following the blank schedules.

15

Hyne attempt to explain the relationship.

16

one who arguably might have had personal knowledge of what

17

actually is in the completed schedules supposedly held by Morgan,

18

Lewis & Bockius attempted to explain the significance of the

19

redacted page.

20

There is no explanation in the sale and assignment

Nor did

More importantly, no

Finally, Hyne stated that Nationstar is Wells Fargos

21

servicing agent for purposes of the Carmel note.

In support of

22

this statement, Hyne referenced the limited power of attorney

23

attached to his declaration as Exhibit D.

The power of attorney,

24
6

25
26
27
28

The significance of the number 17362807" is equivocal. It


is not the loan number assigned to the Carmel refinancing loan at
the time the loan was made. That loan number apparently is
11101490. The summary judgment record reflects that 17362807"
was handwritten onto some copies of the Carmel note but not onto
others. Who wrote that number on some copies and what that
number purportedly signifies never was addressed by either party.
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apparently executed by Wells Fargo as the trustee of certain

designated securitization trusts, identified Nationstar as the

assignee of Aurora Loan Services LLCs loan servicing rights and

duties and granted Nationstar the authority to, among other

things, execute on Wells Fargos behalf all documents and

instruments necessary in appearance and prosecution of bankruptcy

proceedings . . . .

Structured Adjustable Rate Mortgage Loan Trust Mortgage Pass-

Through Certificates, Series 2004-5, as one of the securitization

The limited power of attorney listed the

10

trusts covered.

11

established that ownership of the Carmel note had been

12

transferred to that particular securitization trust, any more

13

than the sale and assignment agreement had.

14

But nothing in the limited power of attorney

Nationstar further supported its summary judgment motion by

15

filing the declaration of one of its attorneys, Adam Barasch.

16

relevant part, Barasch stated that, on behalf of his client

17

Nationstar, he was in possession of the original note and

18

original deed of trust executed by James.

19

that the copy of the Carmel note attached as Exhibit A to the

20

Hyne declaration is a true copy of the original note in his

21

possession.

22

In

Barasch further stated

In October 2014, Allana filed her opposition to Nationstars

23

summary judgment motion.

Allana principally argued that a

24

genuine issue of material fact existed as to whether there were

25

two different original Carmel notes memorializing the same

26

obligation.

27

attached to the Hyne declaration differs in several respects from

28

the POC Note Copy.

Allana pointed out that the copy of the Carmel note

Most importantly, the indorsements page in


10

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each copy is significantly different.

POC Note Copy, the Platinum Capital Group indorsement and the

Lehman Brothers Holdings indorsement are side by side and the

Lehman Brothers Bank indorsement is beneath the Lehman Brothers

Holdings indorsement.

note, the Lehman Brothers Bank indorsement and the Lehman

Brothers Holdings indorsement are side by side and the Platinum

Capital Group indorsement is above the Lehman Brothers Bank

indorsement.7

10

As described above, in the

In the Hyne declaration copy of the Carmel

In support of her opposition, Allana submitted a declaration

11

of a questioned-documents expert by the name of Meredith DeKalb

12

Miller.

13

2011 several different copies of the Carmel note and deed of

14

trust that Allana had provided to her as well as an original note

15

and an original deed of trust, which she examined in person in

16

June 2011 in the Chicago offices of McGinnis Tessitore Wutcher

17

LLP.

18

had marks indicative of hole punches and fasteners while others

19

did not.

20

she examined had the hand-printed notation kahrl and 17362807"

21

in the upper right hand corner while others did not.

22

one of the four note copies included a stamped notation stating

23

that the copy was certified to be a true and correct copy.

24
25

Miller explained in her declaration that she examined in

Miller observed that some of the note copies she examined

Miller further observed that some of the note copies

Meanwhile,

Notwithstanding these and other differences, Miller also


stated that all of the copies provided to her were

26
27
7

28

A copy of the indorsements page accompanying the Hyne


declaration is attached as Appendix B to this decision.
11

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representative copies of the same adjustable rate note and that

the signatures of James she observed on the original note and on

all of the note copies are consistent.

26.

Miller Decl. at 20,

In her summary judgment opposition, Allana claimed that a

2011 report attached to Millers declaration as Exhibit 2 (on

which Millers 2014 declaration was based) demonstrated that the

POC Note Copy and the Hyne declaration note copy are not copies

of the same original note.8

However, neither the 2011 Miller

10

report nor the 2014 Miller declaration demonstrate what Allana

11

claims they do.

12

certain minor differences between various copies of the note

13

provided to her long before either Nationstars 2012 proof of

14

claim or Hynes 2014 declaration even existed.9

At most, Millers declaration and report observe

15

In addition to her claim that there appeared to exist two

16

different original Carmel notes, Allana asserted that the Hyne

17

declaration and the Barasch declaration did not contain competent

18

evidence regarding who owned the Carmel note and who was the

19

holder of the Carmel note.

20

Allana formally made several different evidentiary objections to

21

both declarations, which the bankruptcy court never addressed.

In conjunction with this assertion,

22
23
24
25
26
27
28

The summary judgment opposition stated at page 9: As


described in the Forensic Examiners report attached as
Exhibit 2, the Note Mr. Barasch apparently has in his
possession, and attached as Exhibit A to Mr. Hynes declaration
is not the same Note attached to Claim 9-1 . . . .
9

The indorsement pages included with the note copies


provided to Miller are a different matter. Miller duly noted
that the indorsement signatures on some copies were configured
differently than other copies.
12

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Allana further contended that she was not given adequate

opportunity to conduct discovery.

In support of this contention,

Allana referenced certain examinations and document requests she

had sought under Rule 2004 from Nationstar, Wells Fargo and

others before she filed her adversary proceeding against

Nationstar.

fully complied with her Rule 2004 examination and document

requests.

made to conduct or compel discovery during the roughly 18 months

According to Allana, none of the responding parties

Allana did not identify what efforts, if any, she had

10

that elapsed between the filing of her complaint and the filing

11

of her summary judgment opposition.

12

After holding a hearing at which both parties submitted

13

without argument, the bankruptcy court entered an order granting

14

summary judgment to Nationstar.

15

reasoning.

16

challenge Nationstars proof of claim because only James executed

17

the Carmel note and deed of trust.

18

The order set forth the courts

According to the court, Allana lacked standing to

Alternately, the bankruptcy court explained, Nationstar had

19

established that it had possession of the original Carmel note,

20

indorsed in blank, so Nationstar was a person entitled to

21

enforce the Carmel note under Uniform Commercial Code 3-301

22

and hence had standing to file a proof of claim based on the

23

Carmel note.

24

of the note, the court reasoned, Nationstar had established that

25

it possessed the note on behalf of Wells Fargo as trustee of a

26

securitization trust and that Wells Fargo owned the Carmel note

27

as trustee of that trust.

28

Fargos servicing agent, Nationstar had alternately established

Even if Nationstar had not qualified as the holder

Thus the court held that, as Wells

13

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that it was a nonholder in possession of the instrument who has

the rights of a holder under Uniform Commercial Code 3-301.

Based on its analysis of Nationstars and Wells Fargos

rights in relation to the Carmel note, the bankruptcy court

concluded that, as a matter of law, Allana could not prevail on

any of her claims for relief.

denying relief on Allanas unjust enrichment claim, the

bankruptcy court held that Allanas action was an action based on

contract and that unjust enrichment was not available in an

As an additional ground for

10

action based on contract.

11

relief on Allanas Fair Debt Collection Practices Act claim, the

12

bankruptcy court held that Nationstar was not a debt collector

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

15

was not consumer debt.

16
17

On December 15, 2014, Allana timely filed her notice of


appeal from the bankruptcy courts summary judgment.
JURISDICTION

18
19

As additional grounds for denying

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

20

1334 and 157(b)(2)(B) and (C).

21

28 U.S.C. 158.
ISSUES

22
23
24

Did the bankruptcy court correctly grant summary judgment in


favor of Nationstar?
STANDARD OF REVIEW

25
26

We have jurisdiction under

We review de novo the bankruptcy courts summary judgment

27

ruling.

Wank v. Gordon (In re Wank), 505 B.R. 878, 886 (9th Cir.

28

BAP 2014).
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SUMMARY JUDGMENT STANDARDS

1
2

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Because we review summary judgment rulings de novo, we

utilize the same summary judgment standards as other federal

courts use.

Cir. BAP 1995), aff'd, 100 F.3d 110 (9th Cir. 1996).

Civil Rule 56(a), which is made applicable in adversary

proceedings by Rule 7056, summary judgment may be appropriate "if

the movant shows that there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter

Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th

10

of law."

11

judgment, the court is not permitted to weigh the evidence;

12

instead, it only may determine whether a genuine and material

13

factual issue remains for trial.

14

there is enough evidence for a reasonable trier of fact to make a

15

finding in favor of the non-moving party, and an issue is

16

material if it might affect the outcome of the case.

17

Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing

18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24849 (1986)).

19

In re Wank, 505 B.R. at 886.

Pursuant to

Id.

In considering summary

An issue is genuine if

Far Out

The initial summary judgment burden rests on the moving

20

party.

In re Wank, 505 B.R. at 886.

21

presented facts as undisputed and has presented admissible

22

evidence in support of those facts, the non-moving party may be

23

deemed to have admitted those facts for summary judgment purposes

24

unless he or she specifically challenges those facts and presents

25

controverting evidence in support of his or her position.

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

Once the moving party has

See

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not controverted at trial, would entitle him to a Rule 50

judgment as a matter of law that evidence must be accepted as

true on a summary-judgment motion.).


DISCUSSION

4
5
6

Desc

A.

Allanas Standing
We first address the bankruptcy courts ruling that Allana

lacked standing to pursue her adversary proceeding against

Nationstar.

Employers-Teamsters Local Nos. 175 & 505 Pension Trust Fund v.

Standing typically is jurisdictional.

10

Anchor Capital Advisors, 498 F.3d 920, 923 (9th Cir. 2007)

11

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

12

(1992)).

13

every federal case.

14

It is a threshold requirement that must be satisfied in


Warth v. Seldin, 422 U.S. 490, 498 (1975).

The three core components necessary for constitutional

15

standing are: (1) injury in fact, (2) causation, and

16

(3) redressability.

17

Inc., 554 U.S. 269, 27374 (2008).

18

constitutional components are present, the plaintiff also may

19

need to address certain prudential standing concerns.

20

Am. Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897,

21

906-07 (9th Cir. BAP 2011).

22

are judicially self-imposed limits on the exercise of

23

jurisdiction.

24

289).

25

known as third party standing.

26

289-90.

27

rights and may not assert the legal rights of others.

28

Veal, 450 B.R. at 907.

See Sprint Commc'ns Co. v. APCC Servs.,


Even if the the core

Veal v.

These prudential standing concerns

Id. (quoting Sprint Commc'ns Co., 554 U.S. at

One of the more common prudential standing concerns is


Sprint Commc'ns Co., 554 U.S. at

This means that a plaintiff must assert its own legal


In re

In the context of both constitutional and


16

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prudential standing issues, the plaintiff bears the burden of

proof to establish its standing as to each claim for relief

asserted.

Desc

Id. at 907 n.11.

We disagree with the bankruptcy courts ruling that Allana

lacked standing.

Allanas adversary proceeding was filed in

response to the proof of claim Nationstar filed in her bankruptcy

case, pursuant to which Nationstar sought to perfect its right

(or Wells Fargos right) to share in any distributions made by

Allana to her creditors in accordance with her proposed

10

reorganization plan.

11

of claim on her plan distributions amply satisfies the core

12

constitutional standing components of injury in fact, causation

13

and redressability.

14

that creditor had satisfied constitutional standing requirements

15

in light of the effect of bankruptcy claim allowance procedures

16

on the creditors ability to obtain a distribution on its claim).

17

The potential impact of Nationstars proof

Cf. In re Veal, 450 B.R. at 906 (holding

Nor do we perceive the third party standing doctrine as an

18

impediment to Allanas entitlement to sue Nationstar.

19

bankruptcy court indicated that Nationstars proof of claim was

20

based on a debt for which only James was personally liable, the

21

debt was secured by property of Allanas bankruptcy estate, and

22

in light of the clear impact of Nationstars proof of claim on

23

both Allanas property and on her chapter 11 plan, we hold that

24

she was asserting and protecting her own rights and interests and

25

not those belonging to James.

26

While the

Allanas position is no different than that of any debtor

27

whose property is encumbered by a non-recourse debt.

28

might not be personally liable for repayment of the Carmel note,


17

While she

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her interest in the Carmel property is directly and adversely

affected pecuniarily by Nationstars claim.

cited any authority to us indicating that a person whose interest

in real property is encumbered by a non-recourse debt lacks

standing to challenge both the validity of the lien and the

validity of the underlying debt.

authority.

decisions, a debtor whose property is subject to a lien securing

non-recourse debt may object to a claim filed in his or her

Nationstar has not

Nor are we aware of any such

To the contrary, as indicated by one of our prior

10

bankruptcy case based on that debt.

11

Nat. Trust Co. (In re Simpson), 2013 WL 2350967 (9th Cir. BAP

12

May 29, 2013) (Mem. Dec.).

13

See Simpson v. Deutsche Bank

Furthermore, the fact that Allanas standing arose after

14

James incurred the debt when James conveyed an interest in the

15

Carmel property to Allana subject to the Carmel deed of trust

16

does not alter or impair her standing to challenge the lien and

17

the underlying debt.

18

at 290, a party with standing may confer standing on a third

19

party by transferring a property interest to that third party.

20

As noted in Sprint Commc'ns Co., 554 U.S.

Accordingly, the bankruptcy courts standing ruling does not

21

support the courts summary judgment in favor of Nationstar.

22

B.

23

Nationstars Standing
Having concluded that Allana had standing to challenge

24

Nationstars proof of claim and to assert the claims for relief

25

set forth in her complaint, we next turn our attention to

26

Nationstars standing to file its proof of claim, an issue on

27

which resolution of this appeal largely turns.

28

Allana sometimes refers to this as a problem of standing and


18

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sometimes as a problem of who qualifies as the real party in

interest under Civil Rule 17(a).

explained that who has standing and who is the real party in

interest are legally distinct issues.

at 907-08.

based on a promissory note, we effectively held in In re Veal

that the distinction between the two issues is irrelevant because

a claimant who is a person entitled to enforce the note satisfies

both the standing and real party in interest requirements, and a

In In re Veal, this Panel

See In re Veal, 450 B.R.

At the same time, in the context of a proof of claim

10

claimant who is not a person entitled to enforce the note

11

satisfies neither requirement.

Id. at 920.

12

1.

Applicable Law

13

Similar standing and real party in interest issues have been

14

addressed in a number of published and unpublished Panel

15

decisions over the last several years.

16

Bank, N.A. (In re Allen), 472 B.R. 559, 565 (9th Cir. BAP 2012);

17

In re Veal, 450 B.R. at 897; see also Rivera v. Deutsche Bank

18

Nat'l Trust Co. (In re Rivera), 2014 WL 6675693, at *6-7 (9th

19

Cir. BAP Nov. 24, 2014) (Mem. Dec.); Green v. Waterfall Victoria

20

Master Fund 20081 Grantor Trust Series A (In re Green), 2012 WL

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

105 (9th Cir. BAP 2011) (focusing on creditor standing issue in

24

the context of a relief from stay motion).

25

In re Veal, we generally held that a party is entitled to file a

26

proof of claim based on a secured promissory note if that party

27

is a person entitled to enforce the note under 3301 of the

28
19

See, e.g., Allen v. U.S.

In In re Allen and in

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Uniform Commercial Code (UCC).10

In re Veal, 450 B.R. at 902.

become a person entitled to enforce the note under UCC 3301,

but one common way is for the person to become a "holder" of the

note, as defined in UCC 1201(b)(21)(A).

at 565; In re Veal, 450 B.R. at 91011.

1201(b)(21)(A), a holder includes a person in possession of

a negotiable instrument that is payable . . . to bearer . . . .

And a negotiable instrument is payable to the bearer when it is

In re Allen, 472 B.R. at 565;

There are several ways a party may

In re Allen, 472 B.R.

As set forth in UCC

10

indorsed in blank.

See UCC 3205(b) (If an indorsement is

11

made by the holder of an instrument and it is not a special

12

indorsement, it is a blank indorsement.

13

blank, an instrument becomes payable to bearer and may be

14

negotiated by transfer of possession alone until specially

15

indorsed.); see also In re Allen, 472 B.R. at 567.11

When indorsed in

16
17
18
19
20
21
22
23
24
25
26
27
28

10

Because the Carmel note and deed of trust apparently were


signed in California, the real property securing the note is
located in California and Allana at all relevant times has
resided in California, Californias version of the UCC applies
for purposes of determining the parties rights and duties with
respect to the note. See UCC 1-301(b); Barclays Discount Bank
Ltd. v. Levy, 743 F.2d 722, 725 (9th Cir. 1984); see also
In re Veal, 450 B.R. at 921 n.41 (applying Arizona's counterpart
to UCC 1-301(b) under similar circumstances). For purposes of
resolving this appeal, there is no material difference between
the uniform version of the UCC and Californias version of the
UCC. Meanwhile, the deed of trust identifies federal law and the
law of the jurisdiction in which the Carmel property is located
as the governing law. Thus, California law also governs
interpretation and enforcement of the deed of trust. Id.
Moreover, the parties papers assume that California law applies.
11

The reasoning of the bankruptcy court and the arguments of


both parties have at all times assumed that the Carmel note
(continued...)
20

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Nationstars Alleged Possession of the Original Note


Indorsed in blank

2
3

Nationstar claims to have possession of the Carmel note

indorsed in blank and thereby claims to be a holder of the note

and hence a person entitled to enforce the note.

that Nationstars possession of the Carmel note indorsed in blank

would be insufficient by itself to support the assertion that

Nationstar is entitled to enforce the note.

Nationstar also must establish who owns the note and whether

Allana claims

According to Allana,

10

Nationstar is the owners agent.

11

plain language of UCC 3-301 provides, [a] person may be a

12

person entitled to enforce the instrument even though the person

13

is not the owner of the instrument or is in wrongful possession

14

of the instrument.

15

Allana is incorrect.

As the

As we explained at length in In re Veal, so long as Allana

16

knows that, if she pays Nationstar she has satisfied the debt,

17

Allana should be indifferent as to who ultimately is determined

18

to be the owner of the note and whether Nationstar is the owners

19

agent.

20

913, 919 (holding that alleged servicer can establish entitlement

21

to payment and to file proof of claim by showing that it is a

22

person entitled to enforce the note or that it is the agent of a

23

person entitled to enforce the note).

In re Veal, 450 B.R. at 910, 912 & n.27; see also id. at

Put another way, if

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

within the meaning of UCC


regarding whether UCC
has been forfeited. See
re Choo), 273 B.R. 608, 613

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Nationstar has established it is a person entitled to enforce the

note, then Nationstar has provided Allana with the requisite

assurance that her plan payments on account of Nationstars claim

will satisfy the debt, in accordance with UCC 3-602.

In re Veal, 450 B.R. at 910.

See

Allana argues that there is a triable issue of fact

regarding whether there exist two originals of the Carmel note.

We disagree.

summary judgment record as well as the declaration and expert

We have reviewed all of the note copies in the

10

report of Meredith DeKalb Miller and none of these items support

11

the notion that two original notes exist.

12

judgment record indicates that there is only one original Carmel

13

note and that Nationstars attorney Adam Barasch is in possession

14

of it.

15

Millers statement that all of the note copies are representative

16

copies of the same note and that James signature on each of the

17

note copies is consistent.

18

Rather, the summary

Having studied all of the note copies, we agree with

Allana attacked Adam Baraschs declaration on a number of

19

evidentiary grounds including hearsay, lack of foundation and

20

lack of personal knowledge, but these grounds are meritless to

21

the extent Allana seeks to challenge Baraschs assertion that he

22

is in possession of the original of the Carmel note.

23

competent to employ his powers of personal observation to assess

24

whether he is in possession of an original document.

25

Evidence Rule 602 and accompanying Advisory Committee Notes.

26

Barasch also is competent to compare the original in his

27

possession to the copy attached to the Hyne declaration and to

28

declare whether the Hyne declaration note copy is identical to


22

Barasch is

See

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the original.

Jamess signature on the Carmel note, but he does not need to.

Signatures on negotiable instruments are presumed to be authentic

and authorized, and Allana has not presented any evidence to

overcome that presumption.

(Bankr. D. Nev. 2012)(citing UCC 1206 & 3308).

Id.

Desc

Barasch cannot attest to the authenticity of

See In re Stanley, 514 B.R. 27, 39

On the other hand, the authenticity of the indorsements is a

different matter.

Like James signature on the note, indorsement

signatures on a negotiable instrument typically are self-

10

authenticating.

11

material issues regarding whether the original of the Carmel note

12

was duly indorsed in blank.

13

Id.

And yet, here, there are genuine and

Barasch indicated in his declaration that the indorsement

14

page attached to the Hyne declaration note copy is identical to

15

the original.

16

indorsements appear on the back of the notes signature page or

17

whether they appear on a separate piece of paper attached to the

18

note, which would make the page containing the indorsements an

19

allonge.

20

when as here the debtor legitimately contests the validity of the

21

indorsements, the bankruptcy court is obliged to physically

22

inspect them.

23

However, Barasch did not specify whether the

See In re Veal, 450 B.R. at 911 & n.24.

Either way,

Id.

Here, Nationstar itself created a genuine issue of material

24

fact by presenting with its proof of claim a copy of the note

25

containing a materially different indorsements page than that

26

contained in the Hyne declaration note copy.

27

above, the indorsements are configured differently in the POC

28

note copy and in the Hyne declaration note copy.


23

As we explained

In spite of the

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statement in the Barasch declaration that the Hyne declaration

note copy is identical to the original, the contents of the

indorsements page in the POC note copy is controverting evidence

that could permit a reasonable trier of fact to discredit

Baraschs statement regarding what the original Carmel note looks

like (at least regarding what the indorsements page accompanying

the original note looks like).

trier of fact also might infer from the divergent indorsements

pages that the original Carmel note never was properly indorsed;

More importantly, a reasonable

10

rather, an indorsements page might have been placed with the

11

original note by some unknown third party without authority to

12

indorse the Carmel note.

13

As a result, there is a genuine issue of material fact

14

regarding whether the Carmel note was duly endorsed in blank and

15

made payable to the bearer and hence there also is a genuine

16

issue of material fact as to whether Nationstar qualifies as a

17

holder of the note and a person entitled to enforce the note.

18

3.

Wells Fargo as Non-holder in Possession of Note with


the Rights of a Holder; Evidentiary Problems

19
20

Alternately, Nationstar claims that it possesses the Carmel

21

note on Wells Fargos behalf and that Wells Fargo therefore

22

qualifies as nonholder in possession of the note with the rights

23

of holder, which is another means of qualifying as a person

24

entitled to enforce the note under UCC 3-301.

25

450 B.R. at 911.

26

dual contentions that Wells Fargo, as trustee of a securitization

27

trust, owns the Carmel note and that Nationstar is Wells Fargos

28

agent.

See In re Veal,

This alternate claim depends upon Nationstars

As indicated in In re Veal, proving a non-holder claim of


24

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this type is harder than proving holder status because the

claimant must demonstrate not only possession of the original

note but also the transfer of some form of interest in the note

either to the party in possession of the note or to a party on

whose behalf the possessor has taken possession of the note.

at 911-12.

Id.

To support these contentions, Nationstar largely relies on

the Hyne declaration.

But Hynes critical declaration testimony

lacks adequate foundation as to his personal knowledge of key

10

factual matters, and many of his statements appear to be based on

11

inadmissible hearsay contained in documents attached as exhibits.

12

Generally speaking, in order to establish the admissibility

13

of his declaration testimony, Hyne needed to satisfy the

14

foundational requirement of demonstrating his personal knowledge

15

of the facts set forth in his declaration.

16

see also United States v. Lopez, 762 F.3d 852, 863 (9th Cir.

17

2014) (Personal knowledge means knowledge produced by the direct

18

involvement of the senses.).

19

properly lay a foundation regarding his personal knowledge or

20

based his testimony on inadmissible hearsay statements contained

21

in documents attached to his declaration as exhibits, his

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

exclusion of witness testimony that was based on inadmissible

26

hearsay).

Evidence Rule 602;

To the extent Hyne did not

See Medina v. Multaler, Inc.,

27

From an evidentiary standpoint, of most concern to us is

28

Hynes statement indicating that ownership of the Carmel note was


25

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transferred to Wells Fargo as trustee of a securitization trust

in April 2004.

came by this information.

on Nationstars books and records in preparing his declaration

does virtually nothing to assure us of his personal knowledge

regarding ownership of the Carmel note.

reliable indication that anyone else at Nationstar had personal

knowledge regarding the sale of the Carmel note to Wells Fargo or

that anyone at Nationstar prepared business records regarding the

There is no specific explanation as to how Hyne


His generic statement that he relied

Nor is there any

10

sale based on information received from persons known to have

11

personal knowledge.

12

To corroborate his statement regarding Wells Fargos

13

ownership of the Carmel note, Hyne apparently relied on the

14

document attached to his declaration as Exhibit C: the mortgage

15

loan sale & assignment agreement between Lehman Brothers

16

Holdings, Inc. as seller and Structured Asset Securities Corp. as

17

buyer.

18

relying upon to corroborate his declaration testimony qualify as

19

inadmissable hearsay.

20

sale and assignment agreement refers to Wells Fargo as trustee of

21

certain mortgage note securitization trusts.

22

attempted to establish that the contents of the sale and

23

assignment agreement were excepted from the rule against hearsay

24

by the business records exception set forth in Evidence

25

Rule 803(6), Hyne failed to demonstrate that he qualified as the

26

custodian of the sale and assignment agreement or as another

27

qualified witness competent to testify regarding the

28

prerequisites for application of the business records exception.

But the statements in Exhibit C that Hyne seems to be

For instance, in a passing reference, the

26

While Hyne

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See Evidence Rule 803(6)(D).


If Allana had not objected to this particular portion of

Hynes declaration testimony on foundation, lack of personal

knowledge, hearsay and similar grounds, we might have concluded

that Allana had forfeited these evidentiary objections.

Allana did make the requisite evidentiary objections, and the

bankruptcy court ignored these objections.

circumstances presented here, the bankruptcy court committed

reversible error in doing so.

But

Under the

10

Even if Nationstar somehow could overcome Allanas evidentiary

11

objections, the sale and assignment agreements passing reference

12

to Wells Fargos role as trustee of certain securitization trusts

13

does not contain admissible evidence that would permit the

14

bankruptcy court to conclude for summary judgment purposes that

15

the Carmel note was included in any of the securitization trusts

16

for which Wells Fargo allegedly serves as trustee.

17

As for Nationstars contention that it is Wells Fargos

18

servicing agent, Hynes statement to that effect appears at first

19

blush to be corroborated by the limited power of attorney

20

attached as Exhibit D to Hynes declaration.

21

if we were to assume that Allanas evidentiary objections to this

22

statement are not well taken, the limited power of attorney does

23

not demonstrate that it covers the Carmel note.

24

limited power of attorney is the Carmel note listed.

25

power of attorney does list the securitization trust that

26

Nationstar asserts included the Carmel note: the Structured

27

Adjustable Rate Mortgage Loan Trust Mortgage Pass-Through

28

Certificates, Series 2004-5.


27

Nonetheless, even

Nowhere in the
The limited

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But there is a critical gap in Nationstars evidence.

Nowhere in the Hyne declaration or in the exhibits attached

thereto is there any competent evidence demonstrating that

ownership of the Carmel note was transferred to the above-

referenced securitization trust.

evidence, Nationstar did not establish, for summary judgment

purposes or otherwise, that Wells Fargo owned the Carmel note and

that Nationstar was Wells Fargos agent for purposes of servicing

the Carmel note.

10

In the absence of such

In short, Nationstar did not meet its summary judgment

11

burden to establish that it qualified as a person entitled to

12

enforce the Carmel note under either of its alternate theories

13

pursuant to UCC 3-301.

14

erred when it granted Nationstar summary judgment with respect to

15

Allanas declaratory relief claim and her California unfair

16

competition law claim, which rulings wholly relied on

17

Nationstars status as a person entitled to enforce the note.

18

C.

19

This means that the bankruptcy court

Alternate Theories in Support of Summary Judgment


The bankruptcy court offered an alternate theory for its

20

summary judgment ruling with respect to Allanas unjust

21

enrichment claim.

22

against Nationstar sounded in contract, and unjust enrichment

23

does not apply to actions based in contract.

24

Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1388 (2012).

25

According to the court, Allanas complaint

See Klein v.

We are perplexed by the bankruptcy courts unjust enrichment

26

ruling.

We are not aware of any contract between Nationstar and

27

Allana.

At most, the summary judgment record reflects that

28

Allana obtained an interest in the Carmel property subject to the


28

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lien securing repayment of the Carmel note.

perceive any contractual relationship between Allana and

Nationstar, nor do we perceive any contract-based claim in

Allanas complaint against Nationstar.

Desc

We simply dont

Some California courts have held that unjust enrichment is a

remedy and is not an independent cause of action.

See, e.g.,

Jogani v. Superior Court, 165 Cal.App.4th 901, 911 (2008);

Melchior v. New Line Prods., Inc., 106 Cal.App.4th 779, 794

(2003).

Even so, the Ninth Circuit Court of Appeals recently

10

interpreted California law on this point and held that, when

11

faced with a claim for relief alleging unjust enrichment,

12

district courts ordinarily should treat the claim for relief as

13

a quasi-contract claim seeking restitution.

14

Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015).

15

further held that courts should not dismiss such claims as

16

duplicative or superfluous of other claims.

17

Astiana v. Hain
Astiana

Id.

As for Allanas fourth and final claim her Fair Debt

18

Collection Practices Act (FDCPA) claim the bankruptcy court

19

also offered an alternate theory for its summary judgment ruling

20

on that claim.

21

the FDCPA did not apply because Nationstar was not a debt

22

collector within the meaning of the FDCPA.

23

specialized and narrow definition of the term debt collector,

24

which states in relevant part as follows:

25
26
27
28

The bankruptcy court held that, as matter of law,

The Act provides a

(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
29

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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.

15 U.S.C.A. 1692a (West).


The bankruptcy court did not explain its reasoning for this

10

holding, but it seems to be based on the notion that mortgage

11

servicers generally are not considered debt collectors under the

12

FDCPA, so long as their role as mortgage servicer arose before

13

the borrower defaulted.

14

1197, 1208 (5th Cir. 1985); see also Lal v. Am. Home Servicing,

15

Inc., 680 F.Supp.2d 1218, 1224 (E.D. Cal. 2010) (quoting Perry

16

and stating: [t]he law is well settled that FDCPA's definition

17

of debt collector does not include the consumer's creditors, a

18

mortgage servicing company, or any assignee of the debt.);

19

Mansour v. Cal-Western Reconveyance Corp., 618 F.Supp.2d 1178,

20

1182 (D. Ariz. 2009) (same).

21

Perry v. Stewart Title Co., 756 F.2d

Assuming without deciding that Perry, Lal and Mansour have

22

correctly interpreted the FDCPA, we still cannot affirm the

23

bankruptcy courts ruling on the FDCPA claim on this basis.

24

There are a number of disputed material factual issues that

25

prevent us from doing so, including but not limited to the

26

following: (1) whether the Carmel loan is in default; (2) if so,

27

when that default occurred; (3) whether Nationstar is the

28

mortgage servicer for the Carmel note; and (4) if so, when it
30

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became the servicer for that note.

The parties contested all of

these issues in the adversary proceeding, and the bankruptcy

court incorrectly attempted to decide them on summary judgment.

As a second alternate theory for granting summary judgment

against Allana on her FDCPA claim, the bankruptcy court held that

the Carmel refinancing loan was not a debt covered by the

FDCPA.

8
9
10

We agree.

Under the FDCPA, a debt is defined as:

any obligation or alleged obligation of a consumer to


pay money arising out of a transaction in which the
money, property, insurance, or services which are the
subject of the transaction are primarily for personal,
family, or household purposes. . . .

11

15 U.S.C. 1692a(5) (emphasis added); see also Miller v.

12

McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C.,

13

214 F.3d 872, 874-75 (7th Cir. 2000); Bloom v. I.C. Sys., Inc.,

14

972 F.2d 1067, 1068 (9th Cir. 1992).

15

Here, the summary judgment record establishes that the

16

Carmel loan was used to refinance the Carmel property, and in her

17

bankruptcy filings, Allana repeatedly admitted that the Carmel

18

property was not used as the Baronis residence, but

19

rather was used as a rental property to generate income.12

20

these circumstances, we hold that the bankruptcy court correctly

21

determined that the Carmel refinancing loan was not a debt

22

covered by the FDCPA.

23

that a loan used to refinance property that at the time of the

Under

Cf. Miller, 214 F.3d at 874-75 (indicating

24
25
26
27
28

12

The loan documentation for the Carmel refinancing loan


further supports the notion that the Carmel property was not used
as the Baronis residence at the time James entered into the
transaction. The Carmel deed of trust included an assignment of
rents rider that, among other things, relieved James from the
obligation of occupying the Carmel property as his residence.
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transaction is used as a rental property to generate income is

not covered by the FDCPA).

court correctly granted Nationstar summary judgment on Allanas

FDCPA claim.13

D.

Thus, on this basis, the bankruptcy

Other Arguments and Issues


We also must address Allanas argument that the Carmel note

and the Carmel deed of trust have been irrevocably split and,

therefore, that the Carmel deed of trust is invalid, so the claim

based on the Carmel note should be treated as unsecured.

This

10

argument fails because, under California law, the right to

11

enforce the deed of trust automatically follows the note.

12

Cal. Civ. Code 2936 (The assignment of a debt secured by

13

mortgage carries with it the security.); Cockerell v. Title Ins.

14

& Trust Co., 42 Cal.2d 284, 291 (1954) (Assuming for the moment

15

that the assignment of the note, secured by the third trust deed,

16

was a valid assignment, no further assignment of the deed of

17

trust was necessary.); see also Carpenter v. Longan, 83 U.S.

18

271, 275 (1872) (The transfer of the note carries with it the

19

security, without any formal assignment or delivery, or even

20

mention of the latter.).

21

See

Allana additionally argued that the bankruptcy court erred

22

by not giving her more time to conduct discovery before ruling on

23

Nationstars summary judgment motion.

In support of this

24
13

25
26
27
28

Allana did not attempt to address this issue regarding the


application of the FDCPA until she filed her reply brief on
appeal. Her failure to address this issue in her opening appeal
brief provides a separate and independent basis for rejecting her
belated contention that the Carmel refinance loan is covered by
the FDCPA. Christian Legal Soc'y, 626 F.3d at 48788;
Brownfield, 612 F.3d at 1149 n.4.
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argument, Allana contends that Nationstar, Wells Fargo and others

never fully complied with the discovery requests she made

pursuant to Rule 2004 before she filed her adversary proceeding.

Allana further contends that Nationstar violated Civil Rule 26 by

not disclosing its alleged servicer role and Wells Fargos

alleged ownership of the Carmel note.

In light of our disposition of this appeal, we decline to

resolve Allanas discovery-related issues.

However, we do note

that there is no evidence in the summary judgment record that

10

Allana took any affirmative action to conduct or compel discovery

11

during the entire time her adversary proceeding was pending.

12

did she comply with the applicable procedures for requesting

13

additional time to conduct discovery.

14

also Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443

15

(9th Cir. 1986).

16
17
18

Nor

See Civil Rule 56(d); see

CONCLUSION
For the reasons set forth above, we AFFIRM IN PART, REVERSE
IN PART AND REMAND FOR FURTHER PROCEEDINGS.

19
20
21
22
23
24
25
26
27
28
33

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Appendix A

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PROOF OF SERVICE OF DOCUMENT


I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:
Law Office of Richard L. Antognini
2036 Nevada City Highway, Suite 636
Grass Valley, California 95945-7700
A true and correct copy of the foregoing document entitled (specify): NOTICE OF MOTION AND MOTION FOR
LEAVE TO FILE PLAINTIFFS SECOND AMENDED COMPLAINT
will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in
the manner stated below:

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

Service information continued on attached page

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

June 19, 2016


Date

/s/ Richard Antognini


Printed Name

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