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1

Moshe Mortner, Esq.


2 Mortner Law Office, PC
130 William Street, 5th Floor
3 New York, NY 10038
Telephone 646-783-7544
4
mm@mortnerlaw.com
5
Attorney for Debtor
6 Lenny K. Dykstra
(Pro Hac Vice Application Sub Judice)
7
UNITED STATES BANKRUPTCY COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9 SAN FERNANDO VALLEY DIVISION

10 In re
CASE NO.: 1:09-bk-18409-GM
11
Chapter 7
12
LEY KYLE DYKSTRA,
13 DEBTORS SUPPLEMETAL
OPPOSITIO TO TRUSTEE’S MOTIO
14 FOR ORDER APPROVIG
Debtor. SETTLEMET AD COMPROMISE
15 BETWEE THE ESTATE, TERRI
16 DYKSTRA, AD JPMORGA CHASE,
ADDRESSIG ISSUES OF:
17 (i) STADIG OF
JP MORGA CHASE, AD
18 (ii) POTETIAL BARS TO THE
ASSERTIO OF ORIGIATIO
19 DEFESES TO THE OTE; AD
20
DEBTOR’S OBJECTIO TO THE
21 PROOF OF CLAIM OF JP MORGA
CHASE, PURSUAT TO 11 U.S.C. § 502(a)
22 ***
23
DECLARATIO OF MOSHE MORTER
24 I SUPPORT

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27

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1
Table of Contents
2
SUPPLEMETAL OPPOSTIO TO MOTIO OF FORMER TRUSTEE FOR
3
APPROVAL OF SETTLEMET WITH JP MORGA CHASE AD OBJECTIO TO
4
5 PROOF OF CLAIM ........................................................................................................................ 5

6
PRELIMIARY STATEMET ........................................................................................ 5
7
STATEMET OF FACTS ................................................................................................. 6
8

9 MEMORADUM OF LEGAL AUTHORITIES ........................................................... 12


10
A. JP MORGAN CHASE LACKS STANDING TO APPEAR AS A CREDITOR ..... 12
11
1. The Debtor has Standing to Object to JP Morgan Chase’s Proof of Claim ....... 12
12
13 2. The Legal Standard under Fed.R.Civ.P. 12(b)(1) ............................................... 12

14 3. The Creditor’s “Real Party In Interest” Standing Requirement ......................... 13

15 4. California’s Commercial Code Establishes JP Morgan Chase is not a Holder . 14


16 5. JP Morgan Chase Has 3o Conveyance of the Deed of Trust. ............................ 17
17
6. JP Morgan Chase has no Standing as a Loan Servicer ...................................... 17
18
7. JP Morgan Chase’s Proof of Claim Should be Disallowed. ............................... 19
19
B. JP MORGAN CHASE SHOULD BE SANCTIONED FOR VIOLATING
20

21 BANKRUPTCY RULE 3001 ...................................................................................................... 20

22 C. D'OE3CH, FEDERAL HOLDER IN DUE COURSE AND FIRREA DO NOT BAR

23 TILA DEFENSES........................................................................................................................ 21
24
D. THE P&A IS NOT A BAR TO ORIGINATION DEFENSES OF BORROWERS . 23
25
COCLUSIO .................................................................................................................. 24
26
27 DECLARATIO OF MOSHE MORTER ................................................................... 26
28

2
1
TABLE OF LEGAL AUTHORITIES
2

3 CASES

4
Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) .................................................................13
5 Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) .................................................14, 16

6 Cetacean Community v. Bush, 386 F.3d 1169, 1174 (9th Cir.2004) ..............................................................................12

7 Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) ..............................................................................19
8 Doran v. 7-Eleven Inc., 524 F.3d 1034, 1044 (9th Cir.2008) .........................................................................................13

9 Eads, 135 B.R. 387, 391 (E.D.Cal.,1991).......................................................................................................................13

10 In re Depugh, 409 B.R. 84, 97, 111 (Bankr.S.D.Tex.2009) ...........................................................................................20


11 In re Gavin, 319 B.R. 27, 31 (1st Cir. BAP 2004)..........................................................................................................18
12 In re Hernandez, 2009 WL 4639645 (Bkrtcy.S.D.Tex. 2009) .................................................................................12, 19
13 In re Kang Jin Hwang, 396 B.R. 757 (C.D.CA Bankr.2008) ............................................................................. 13, 14, 17

14 In re Maisel, 378 B.R. 19, 21 (Bankr.D.Mass.2007) ......................................................................................................14


15 In re Sheridan, 2009 WL 631355 (Bankr. D.Idaho, 2009) .............................................................................................19

16 In re Urdahl, 2008 WL 8013408 (Bkrtcy.S.D.Cal., 2008) .......................................................................................14, 16


In re Village Rathskeller, 147 B.R. 665, at 668 (Bankr.S.D.N.Y.1992) .........................................................................13
17
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ....................12
18
LaSalle Bank 3.A. v. Lehman Bros. Holdings, Inc., 237 F.Supp.2d 618, 631-34 (D.Md.2002).....................................17
19
LaSalle Bank 3.A. v. 3omura Asset Capital Corp., 180 F.Supp.2d 465, 469-71 (S.D.N.Y.2001).................................17
20
Magill v. Davenport, 120 Cal.App. 387, 8 P.2d 169 (App. 1 Dist. 1932) ......................................................................15
21
Mancuso v. Sullivan (In re Sullivan), 153 B.R. 751, 754 (Bankr.N.D.Tex.1993) ..........................................................12
22
Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed.Cir.2007) .................................................................................13
23
Murphy v. FDIC, 61 F.3d 34 (D.C. Cir. 1995) ...............................................................................................................21
24
O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994) .........................................................................................................21
25
Porras v. Petroplex Sav. Ass'n, 903 F.2d 379 (5th Cir.1990) .........................................................................................22
26
RTC v. Kennelly, 57 F.3d 819 (9th Cir. 1995) ................................................................................................................22
27
Spencer v. Sterling Bank, 74 Cal.Rptr.2d 576, 63 Cal.App.4th 1055 (App. 2 Dist. 1998) .............................................15
28 Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) ...................13

3
1
U.S. v. AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir.1992) ..............................................................................................13
2
Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ..........................................................................13
3
4 STATUTES

5 11 U.S.C. § 362(d) ..........................................................................................................................................................18

6 11 U.S.C. § 502(a) ..........................................................................................................................................................12

7 11 U.S.C. §502 (b) ..........................................................................................................................................................12


8 12 U.S.C. § 1819 ............................................................................................................................................................23

9 12 U.S.C. § 1823(e) ..................................................................................................................................................21, 22

10 15 U.S.C. §1601 et seq. ..................................................................................................................................................22


11 CCom § 3109(c) .............................................................................................................................................................15
CComC § 3102(a)...........................................................................................................................................................14
12
CComC § 3104(a), (b) and (e) ........................................................................................................................................15
13
CComC § 3201 ...............................................................................................................................................................16
14
CComC § 3205(a).....................................................................................................................................................15, 30
15
CComC § 3205(b) ..........................................................................................................................................................15
16
CComC § 3301(a)...........................................................................................................................................................15
17

18 RULES

19
Fed.R.Bankr.P. 3001....................................................................................................................................... 6, 19, 20, 21
20
Fed.R.Civ.P. 12(b)(1) .....................................................................................................................................................12
21 Fed.R.Civ.P. 17 ..............................................................................................................................................................18

22
TREATISES
23
24 6A Wright § 1553 ...........................................................................................................................................................18

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26
27

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1
SUPPLEMETAL OPPOSTIO TO MOTIO OF FORMER TRUSTEE FOR
2 APPROVAL OF SETTLEMET WITH JP MORGA CHASE AD OBJECTIO TO
PROOF OF CLAIM
3
In this opposition of LENNY KYLE DYKSTRA (“Debtor”) to the former trustee’s motion
4
5 for approval of settlement with JP Morgan Chase, the Debtor respectfully represents that approval

6 of the settlement should be rejected, because JP Morgan Chase lacks standing in this proceeding,

7 and Debtor hereby objects to the proof of claim of JP Morgan Chase.


8
In further opposition to the former trustee’s Motion, the Debtor respectfully represents as
9
follows:
10
PRELIMIARY STATEMET
11
Debtor sets forth herein the following contentions and legal arguments:
12
13 (1) That JP Morgan Chase lacked standing to file its Proof of Claim, and therefore, in

14 an adversary proceeding or upon motion of the new chapter 7 trustee, JP Morgan

15 Chase’s complaint and proof of claim would be dismissed by this Court;


16
(2) That, upon the objection of Debtor herein, this Court should disallow the Proof of
17
Claim of JP Morgan Chase due to lack of standing, which deprives this Court of
18
jurisdiction over the claim;
19
(3) That the Debtor is entitled to recover sanctions and attorney's fees from JP Morgan
20

21 Chase because of the false and fraudulent filing of its ProofS of Claim and the

22 pattern of concealment of documents material to the Debtor’s defense of this claim;


23 (4) That, notwithstanding the lack of standing defense to JP Morgan Chase, the Court
24
should not approve the Trustee’s proposed settlement with JP Morgan Chase,
25
because the claim would be subject to Debtor’s defenses arising from the
26
origination of the underlying loan including Truth In Lending Act defenses for
27

28 recoupment; and

5
1
(5) That the Debtor’s loan origination defenses would not be barred by:
2
a. Federal Holder in Due Course common law;
3
b. The doctrine of D'Oench Dhume;
4
c. Holder in Due Course law of the Uniform Commercial Code under the laws
5
of the State of California;
6
d. The protections afforded to the FDIC and its assuming banks by FIRREA;
7 and

8 e. The bar against borrowers’ defenses that is allegedly granted to JP Morgan


Chase by the Purchase and Assumption Agreement between JP Morgan
9 Chase and the FDIC (the “P&A”); and
10 Thus, the Debtor requests the following relief: (1) An order disallowing the Proof of Claim
11
of JP Morgan Chase; and (2) actual damages, punitive damages, and sanctions pursuant to 11
12
U.S.C. §§ 105(a) , 362(a), & 501, and Bankruptcy Rule 3001(c) & (d). Alternatively, Debtor
13
requests that the Court deny the Trustee’s motion for approval of the proposed settlement and
14
15 compromise agreement with JP Morgan Chase and allow an adversary proceeding as to the claim

16 of JP Morgan Chase.
17 As will be shown below, all of the arguments that have been advanced by the former
18
trustee as proxy for JP Morgan Chase and in support of the proposed settlement agreement are
19
vacuous and without merit.
20
Regarding JP Morgan Chase’s claim in this proceeding, we say with a clear and confident
21
voice, “The Emperor has no clothes!”
22
23
24 STATEMET OF FACTS
25 On October 19, 2009, JP Morgan Chase filed a Proof of Claim in this proceeding, Claim
26 No. 21-1. The first page of the Proof of Claim form stated “Basis of Claim: Money Loaned, Real
27
Property.” Attached to Proof of Claim 21-1 was a deed of trust and a promissory note executed by
28
Terri Dykstra. On each page of the note was a stamp that says, “WE HEREBY CERTIFY THAT

6
1
THIS IS A TRUE AND CORRECT COPY OF THE ORIGINAL IN OUR FILE.” o further
2
indorsements appear on the face of the note attached to JP Morgan Chase Proof of Claim, for
3
Claim o. 21-1. This was the first act of fraudulent concealment by JP Morgan Chase of
4
5 documents that invalidate the claim.

6 The deed of trust, attached to the Proof of Claim for Claim No. 21-1 states that the claim is

7 secured by certain real estate known as the 1072 Newbern Court, Westlake Village, CA 91361
8
(the “Newbern Property”). The amount of the claim stated on page one of the Proof of Claim is
9
$13,033,044.05. A copy of JP Morgan Chase’s Proof of Claim for Claim No. 21-1 is annexed to
10
the Mortner Declaration as Exhibit A.
11
On February 23, 2010, JP Morgan Chase filed a new Proof of Claim in this proceeding,
12
13 Claim No. 43-1. However, this time the first page of the Proof of Claim form stated “Basis of

14 Claim: promissory note & deed of trust.” Strangely though, on Claim No. 43-1 no promissory
15 note was attached to the Proof of Claim. This was the second act of fraudulent concealment by

16
JP Morgan Chase of documents that invalidate the claim.
17
The absence of the note on Claim No. 43-1 was a violation of the requirements of
18
Bankruptcy Rule 3001.
19

20 The amount of the claim stated on page one of Proof of Claim 43-1 is $13,862,499.10. A

21 copy of JP Morgan Chase’s Proof of Claim for Claim 43-1 is annexed to the Mortner Declaration

22 as Exhibit B.
23 The Deed of Trust attached to Claim 43-1 was the same Deed of Trust, dated August 21,
24
2007, that was attached to Claim 21-1. The lender listed on the Deed of Trust is Washington
25
Mutual Bank FA (“WaMu”), not JP Morgan Chase. The Deed of Trust states, “This Security
26
Instrument [i.e., the Deed of Trust] secures to Lender: (i) the repayment of the Loan, and all
27

28 renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's

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1
covenants and agreements under this Security Instrument and the Note.” Moreover, the Deed of
2
Trust states that “[t]he [Deed of Trust] shall be governed by federal law and the law of the
3
jurisdiction in which the Property is located.”
4
5 By motion filed March 23, 2010, the former trustee, who was representing JP Morgan

6 Chase as counsel in more than 250 other cases, sought the Court’s approval of a settlement with JP

7 Morgan Chase on its Claim No. 21-1, which included a copy of the Note executed by Terri
8
Dykstra. No mention of Claim No. 43-1 appears in the former trustee’s motion.
9
In a hearing before the Court on August 6, 2010, counsel for Debtor raised the issue that
10
there remained a question as to whether JP Morgan Chase was in fact a holder of the Note
11
executed by Terri Dykstra. Therefore, the Court directed counsel for JP Morgan Chase to produce
12
13 within one week any documents that would evidence whether JP Morgan Chase is a holder of the

14 note on which its claim is based.


15 By email on August 13, 2010, counsel for JP Morgan Chase, David Neale, Esq., provided
16
his response to the Court ordered discovery, stating,
17
[A]s to the holder in due course issue, it appears at this time
18 that the only relevant document is the agreement with the FDIC
regarding the transfer of the WaMu loans to JP Morgan Chase
19 Bank. 1
20
A copy of Mr. Neale’s August 13th response to the Court’s discovery order is annexed to
21
the Mortner Declaration as Exhibit C.
22
Mr. Neale’s August 13th response appeared to conclude the discovery issue and the date
23
that the Court had fixed for Debtor to file any motion to compel JP Morgan Chase to produce
24

25 documents, August 18, 2010, passed. Then on August 20, 2010, Mr. Neale sent another email,
26 stating, in pertinent part,
27
1
28 Mr. Neale’s response refers to the “Purchase and Assumption Agreement, Whole Bank” between the FDIC
and JP Morgan Chase regarding the assets of WaMu (“P&A Agreement”). A copy of the P&A Agreement is annexed
to the Mortner Declaration as Exhibit B.

8
1
I have seen an email from Mr. Dykstra where he contends
2 that my client does not have the original note. To the contrary, and
as reflected in the proof of claim filed by my client, JP Morgan
3 Chase is the holder of the original note signed by Terri Dykstra. A
true and correct copy of that note (which has already been submitted
4
in several contexts in this case, including, I believe, by you) from
5 the JP Morgan Chase files is attached for your reference.

6 A copy of Mr. Neale’s August 20th supplemental response to the Court’s discovery order is

7 annexed to the Mortner Declaration as Exhibit D.


8 The copy supplied by Mr. Neale was similar to the copy attached to JP Morgan Chase’s
9
Proof of Claim for Claim No. 21-1. The copy of the Note supplied on August 20, 2010 by Mr.
10
Neale, like the copy attached to JP Morgan Chase’s Proof of Claim for Claim No. 21-1, did not
11
have a special indorsement over the blank indorsement of Terri Dykstra. The copy of the note
12
th
13 supplied with Mr. Neale’s August 20 email is annexed hereto as Exhibit E. This was the third act

14 of fraudulent concealment by JP Morgan Chase of documents that invalidate the claim.


15 Mr. Neale’s August 20th email raised more questions than it resolved. First, Mr. Neale
16
stated that his client’s possession of the original note was “reflected in the proof of claim.”
17
However, there was no note attached to the Proof of Claim for Claim No. 43-1, only for Claim No.
18
21-1. Second, he stated that the attached note was a true and correct copy of the note “from the
19
JP Morgan Chase files.” Indeed, the copy Mr. Neale attached bore a legend stating it is a true
20

21 and correct copy. However, the legend appeared not to have been stamped onto the Note by JP

22 Morgan Chase, which would have indicated that the copy was a copy of the original in JP Morgan
23 Chase’s files. Rather the copy supplied by Mr. Neale appeared to be a copy of the Note that had
24
been supplied by the Dykstras’ title company, West Coast Escrow, and the stamp stating it was a
25
true and correct copy appeared to be the stamp affixed by West Coast Escrow - not by JP Morgan
26
Chase. Therefore, it appeared that contrary to his representation, Mr. Neale had not supplied a
27

28 true copy of the original Note from the JP Morgan Chase files.

9
1
Therefore, Debtor’s counsel demanded an inspection of the original Note.
2
This demand opened up a slurry of objections and excuses as to why JP Morgan Chase did
3
not need to and could not produce the original note for inspection.2 (See the email thread attached
4
5 to the Mortner Declaration as Exhibit F.) At one point, JP Morgan Chase’s counsel shot back that

6 if Debtor wanted to inspect the original Note the inspection would have to take place in Louisiana.

7 At another point, JP Morgan Chase offered a sworn affidavit of authenticity in lieu of an


8
inspection of the original note.
9
Fortunately, Debtor’s counsel did not waiver in demanding inspection of the original note.
10
For, when the Note was finally produced it was revealed for the first time that it bore a material
11
difference from the “true and correct” copies that had been supplied by JP Morgan Chase; the
12
13 original note bore a stamp stating: “Pay to the order of, without recourse, Washington Mutual

14 Bank, FA” signed by a Vice President of WaMu. A copy of the true original Note, bearing the
15 special indorsement, which was finally produced on August 25, 2010, is annexed to the Mortner

16
Declaration as Exhibit G.
17
This special indorsement had been concealed by JP Morgan Chase in the October 2009
18
filing of its first Proof of Claim for Claim No. 21-1. Then, the special indorsement was concealed
19

20 again when JP Morgan Chase, having changed counsel, filed in February 2010 a Proof of Claim

21

22
2
August 23, 2010 Mr. Neale: It is patently unreasonable for you to demand that the original
23
document be delivered here within 1 week. First of all, it is not clear to me why you need the original,
24
particularly since no one has ever challenged the fact that the note was duly executed by Terri Dykstra.
25
August 25, 2010, Mr. Neale: The issue is not the relevance of the note, the question is your need to
26
27 inspect the original. My client would be happy to provide a declaration under penalty of perjury that it

28 holds the original note.

10
1
for a new claim, Claim No. 43-1. This time, rather than offer a nonconforming copy of the Note,
2
JP Morgan Chase simply filed no copy of the Note with the second Proof of Claim.
3
As explained below, on the basis of this special indorsement, JP Morgan Chase is deprived
4
5 of the status of a holder, and thus has no standing in this Court.

6 Accordingly, the months of tortuous proceedings over the former trustee’s proposed

7 settlement agreement could have been avoided had JP Morgan Chase faithfully disclosed this
8
document, as required by the Rules.
9
Instead, JP Morgan Chase withheld this document. In fact at the hearing on August 6,
10
2010, JP Morgan Chase’s counsel even went so far as to argue that the Court should make a
11
speedy determination on the motion to approve the settlement by setting a “drop dead date.” Had
12
13 the Court accepted that argument, then JP Morgan Chase would have been allowed to steal the

14 Dykstra’s home without the true content of the Note ever being revealed.
15 Furthermore, following the August 6th hearing, JP Morgan Chase continued in its ongoing
16
efforts to conceal the truth from this Court, by producing on August 20, 2010 a nonconforming
17
copy of the note and claiming it was a “true and correct copy” of the original document “in the JP
18
Morgan Chase files”. The nonconforming copy did not contain the special indorsement. Had
19

20 Debtor’s counsel simply accepted JP Morgan Chase’s representation, without demanding

21 inspection of the original document, the truth would never have come out and JP Morgan Chase

22 would have been allowed to steal the Debtor’s home.


23 Only when there was no way to continue withholding the original document from
24
inspection, did JP Morgan Chase come clean, and now the truth is at last revealed. JP Morgan
25
Chase never had a valid claim.
26
27

28

11
1

2
MEMORADUM OF LEGAL AUTHORITIES
3
4
5 A. JP MORGA CHASE LACKS STADIG TO APPEAR AS A CREDITOR

6 1. The Debtor has Standing to Object to JP Morgan Chase’s Proof of Claim

7 The Debtor has standing to object to the Proof of Claim of JP Morgan Chase because 11
8 U.S.C. § 502(a) states that “[a] claim or interest, proof of which is filed under section 501 of this

9
title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a
10
partnership that is a debtor in a case under chapter 7 of this title, objects.” 11 U.S.C. § 502(a). The
11
Debtor is a party-in-interest in this Chapter 7 case. Accordingly, the Debtor has standing to object
12
13 to the Proof of Claim. Once an objection has been filed, the court may determine the amount of

14 the claim after a noticed hearing. 11 U.S.C. §502 (b). See In re Hernandez, 2009 WL 4639645
15 (Bkrtcy.S.D.Tex. 2009).

16
17
2. The Legal Standard under Fed.R.Civ.P. 12(b)(1)
18
On a motion to dismiss the complaint of JP Morgan Chase in an adversary proceeding, the
19
court would apply the following legal standard. A motion to dismiss for lack of standing may be
20
treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
21

22 12(b)(1). Mancuso v. Sullivan (In re Sullivan), 153 B.R. 751, 754 (Bankr.N.D.Tex.1993). If a
23 plaintiff lacks constitutional standing, the suit “is not a ‘case or controversy’, and an Article III
24 federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Community v.

25
Bush, 386 F.3d 1169, 1174 (9th Cir.2004). On a motion to dismiss for lack of subject matter
26
jurisdiction, the plaintiff bears the burden of establishing subject matter jurisdiction. See
27
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391
28
(1994); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225

12
1
(9th Cir.1989). “The burden of proof is on the party asserting jurisdiction.” Eads, 135 B.R. 387,
2
391 (E.D.Cal.,1991).
3
4
5 3. The Creditor’s “Real Party In Interest” Standing Requirement

6 The threshold issue of whether JP Morgan Chase may enforce the Note is one of standing.

7 “Generally, a party without legal rights to enforce an obligation under applicable substantive law
8 lacks prudential standing.” Doran v. 7-Eleven Inc., 524 F.3d 1034, 1044 (9th Cir. 2008). Similar

9
to Article III standing, prudential standing, i.e., the real party in interest, is a “threshold
10
determinant of the propriety of judicial intervention,” Warth, 422 U.S. at 498-99, 95 S.Ct. 2197,
11
and places a limit “on the exercise of federal jurisdiction.” Allen v. Wright, 468 U.S. 737, 751, 104
12
13 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

14 The court in In re Kang Jin Hwang, 396 B.R. 757 (C.D.CA Bankr.2008) provided the

15 following exposition of the standing issue in Bankruptcy Court:

16
Standing is a “threshold question in every federal case,
17 determining the power of the court to entertain the suit.” Warth v.
Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Hence,
18 “a defect in standing cannot be waived; it must be raised, either by
the parties or by the court, whenever it becomes apparent.” U.S. v.
19 AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir.1992).
20
***
21
The “real party in interest” requirement, on the other hand, is
22 generally regarded as one of many “prudential” considerations that
have been “judicially engrafted onto the Article III requirements for
23 standing.” See, e.g., In re Village Rathskeller, 147 B.R. 665, at 668
(Bankr.S.D.N.Y.1992). To obtain relief in federal court, a party
24
must meet both the constitutional requirements (standing) and the
25 prudential requirements (including real party in interest). Morrow v.
Microsoft Corp., 499 F.3d 1332, 1339 (Fed.Cir.2007); see also
26 Village Rathskeller, Inc., 147 B.R. at 668 (citing Warth v. Seldin,
422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) for the
27 proposition that “[t]he concept of standing subsumes a blend of
28 constitutional requirements and prudential considerations”).

13
1
Id., at 768-9
2
In addition to standing, the Trustee must show that JP Morgan Chase is entitled to relief
3
from the automatic stay, because by its terms, the proposed settlement agreement seeks to grant JP
4
5 Morgan Chase relief from the automatic stay to proceed with foreclosure on the Debtors' Newbern

6 residence. Bankruptcy Code section 362(d) provides for relief from stay on request of a “party in

7 interest.”
8
In defining a “party in interest” the Court in In re Urdahl, 2008 WL 8013408, 1
9
(Bkrtcy.S.D.Cal., 2008) held that “[a] party seeking relief from the automatic stay to exercise
10
rights as to property must demonstrate at least a colorable claim to the property.” citing In re
11
Maisel, 378 B.R. 19, 21 (Bankr.D.Mass.2007).
12
13

14 4. California’s Commercial Code Establishes JP Morgan Chase is not a Holder


15 To determine whether JP Morgan Chase is a holder of the Note it is necessary to examine
16
the law of promissory notes.
17
Bankruptcy law does not generally provide for the enforcement of promissory notes. As a
18
result, the legal obligations of the parties must be determined by applicable non-bankruptcy law,
19
which is usually state law. See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59
20

21 L.Ed.2d 136 (1979). There is no unified federal law governing promissory notes; however, each

22 state has adopted a version of the U.C.C. concerning negotiable instruments, which applies to
23 promissory notes. Accordingly, the Court must turn to the California statutes incorporating the
24
Uniform Commercial Code, specifically Article 3 dealing with negotiable instruments. The
25
substantive California law that governs negotiable instruments is CComC Division 3 (the
26
California version of UCC Article 3). See CComC § 3102(a).
27

28

14
1
The note here at issue is a negotiable instrument, as defined in the CComC § 3104(a), (b)
2
and (e). The note is on a standard printed form that is used in the finance industry for notes that are
3
freely bought and sold in a manner consistent with treating it as a negotiable note.
4
5 In addition, this case involves a note secured by a deed of trust. An instrument, including

6 one secured by deed of trust, may only be enforced by the “holder” of the note. See CComC §

7 3301(a); UCC § 3-301(a). Only a transfer by negotiation can result in the party obtaining the
8
instrument receiving the rights of a holder, the right to enforce the note.
9
A fundamental feature of negotiable instruments is that they are not transferred by contract
10
or assignment. Rather, negotiable instruments, in the case of notes with blank indorsements, are
11
transferred by the delivery of possession, and thereby are enforceable by anyone in its possession
12
13 (much like paper currency). See CComC § 3205(b); UCC § 3-205(b). Whereas, in the case of

14 specially indorsed notes, they are transferred by delivery of possession plus the transferor must
15 indorse the instrument to make it payable to the transferee. (CComC § 3205(a); UCC § 3-205(a)).

16
“When specially indorsed, an instrument becomes payable to the identified person and may be
17
negotiated only by the indorsement of that person.” (CComC § 3205(a); UCC § 3-205(a)).
18
On the Note relied upon by JP Morgan Chase for its claim in this case, WaMu added its
19

20 own special indorsement, making the Note “payable to the order” of WaMu, itself. When

21 specially indorsed, an instrument that formerly had a blank indorsement, becomes payable to the

22 identified person and may only be further negotiated by an indorsement of that person. Spencer v.
23 Sterling Bank, 74 Cal.Rptr.2d 576, 63 Cal.App.4th 1055 (App. 2 Dist. 1998). Cal.Com.Code §§
24
3109(c). When a holder of a note writes over a blank indorsement and indorses the note payable
25
in full to itself, the payee’s blank indorsement is thereby converted to a special indorsement.
26
Magill v. Davenport, 120 Cal.App. 387, 8 P.2d 169 (App. 1 Dist. 1932). Therefore, the Terri
27

28

15
1
Dykstra Note could only be negotiated to JP Morgan Chase by another special indorsement from
2
WaMu making the Note payable to JP Morgan Chase or payable to bearer.
3
In In re Urdahl, 2008 WL 8013408, 1 (Bkrtcy.S.D.Cal.,2008), Deutsche Bank, as Trustee
4
5 for a WaMu securitization trust moved for relief from the automatic stay to proceed with

6 foreclosure proceedings on the Debtors' residence. The Trustee opposed the motion on the

7 grounds that Deutsche Bank lacked standing. In support of the motion, Deutsche Bank provided
8
the copies of the original Note and Deed of Trust. Regarding the Deed of Trust, the Court found,
9
“Though it is undisputed that WAMU held a security interest in the Property by virtue of the Deed
10
of Trust, Deutsche Bank has provided no evidence at all that any interest in the Deed of Trust was
11
ever assigned from WAMU to Deutsche Bank, or to anyone else for that matter.” Regarding the
12
13 note, the Court observed that the Note had an endorsement that was a stamp signed by a vice

14 president of WaMu reading “Pay to the order of ______.” The space for payees was left blank.
15 The Court found there was no evidence of the Note being transferred to Deutsche Bank or the

16
Trust it represented and denied the motion for relief.
17
Here the note offered by JP Morgan Chase also had an endorsement that was a stamp
18
signed by a vice president of WaMu, except that here the stamp read “Pay to the order of
19

20 Washington Mutual Bank.” Under these facts, JP Morgan Chase clearly fails to qualify as the

21 holder of the Note.

22 To argue that JP Morgan Chase is conferred the status of a holder by virtue of the P&A
23 would be contrary to the law of California with respect to the negotiation of instruments and their
24
enforcement, which is the controlling law in this District. Butner v. United States, 440 U.S. 48,
25
54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). The here specifically identified the party to whom it
26
was payable, WaMu, and the note therefore cannot be transferred unless the note is endorsed. See
27

28 Cal. Com. Code §§3109, 3201, 3203, 3204.

16
1

2
5. JP Morgan Chase Has o Conveyance of the Deed of Trust.
3
Moreover, as in Urdahl, there is no evidence here that any interest in the Deed of Trust
4
5 was ever assigned from WaMu to the alleged transferee, JP Morgan Chase. In fact, the P&A, by

6 its own terms, requires that the conveyance of the Deed of Trust be supported with a further deed

7 to JP Morgan Chase. Section 3.3 of the P&A states, “THE CONVEYANCE OF ALL ASSETS,
8 INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY THE

9
ASSUMING BANK UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY
10
RECEIVER’S DEED OR RECEIVERS’S BILL OF SALE….” See the Purchase and Assumption
11
Agreement annexed as Exhibit H to the Mortner Declaration. Thus, the P&A, section 3.3, requires
12
13 documentary evidence for each transfer of a deed of trust to JP Morgan Chase. No such

14 documentation exists in support of JP Morgan Chase’s claim herein.


15

16
6. JP Morgan Chase has no Standing as a Loan Servicer
17
WaMu may have been the loan servicer for the note herein, even after it sold the note in a
18
securitization deal. Moreover, JP Morgan Chase may have acquired WaMu’s status as the note’s
19
servicer via the Purchase and Assumption Agreement.
20

21 As noted above, when a loan has been securitized, the real party in interest is the trustee of

22 the securitization trust, not the servicing agent, albeit the servicing agent may be a party in
23 interest. In re Kang Jin Hwang, 396 B.R. 757 (C.D.CA Bankr.2008) (citing LaSalle Bank 3.A. v.
24 3omura Asset Capital Corp., 180 F.Supp.2d 465, 469-71 (S.D.N.Y.2001); accord, LaSalle Bank

25
3.A. v. Lehman Bros. Holdings, Inc., 237 F.Supp.2d 618, 631-34 (D.Md.2002)).
26
However, as the court in Hwang pointed out, being a party in interest is limited to
27
purposes of bankruptcy, such as in the context of relief from the automatic stay, 11 U.S.C. §
28

17
1
362(d). Conversely, for purposes of standing, Rule 17 of the Federal Rules of Civil Procedure
2
requires that a party be a real party in interest.
3
In Hwang, the court posed the question thus: “[T]he question remains: to whom is the debt
4
5 owed (i.e., who owns the promissory note)? See In re Gavin, 319 B.R. 27, 31 (1st Cir. BAP

6 2004)” The right to enforce a note on behalf of a noteholder does not convert the noteholder's

7 agent into a real party in interest. See Hwang, at 767, quoting “As a general rule, a person who is
8
an attorney-in-fact or an agent solely for the purpose of bringing suit is viewed as a nominal rather
9
than a real party in interest and will be required to litigate in the name of his principal rather than
10
in his own name.” 6A Wright § 1553.
11
Consequently, even when the claimant offers evidence that a proper agency relationship
12
13 exists between the claimant and the true holder of the note, that would not excuse the requirement

14 that the claim be prosecuted in the name of the noteholder, who is the real party in interest – not
15 in the name of the servicer. Fed.R.Civ.P. 17(a)(1).

16
In Hwang, the court found that at most the bank retained only loan servicing rights. The
17
court stated,
18
Most likely, Freddie Mac sold the note into a securitization
19 trust. IndyMac does not know who owns the note today, although it
20 still has possession of the note and there is nothing on the note to
indicate that it has been transferred.… In addition, IndyMac has
21 failed to provide any documents showing its sale of the note or its
status as a servicing agent for the note's new owner.
22
Based on all the evidence submitted by JP Morgan Chase in this case, the bank is neither a
23
24 holder or a servicer of this Note. Therefore, they lack standing and their claim must be dismissed.

25 In fact, the Court cannot determine who the real party in interest is. However, without doubt, JP
26 Morgan Chase has no standing. Therefore, the proof of claim filed in JP Morgan Chase’s name
27
must be disallowed for lack of standing.
28

18
1
7. JP Morgan Chase’s Proof of Claim Should be Disallowed.
2
Based on all of the foregoing, the Court should find that JP Morgan Chase has failed to
3
establish that it is a real party in interest. Therefore, JP Morgan Chase may not be appear as a
4
5 creditor of the Debtor herein. A party seeding to file a claim “bears the burden of demonstrating

6 standing and must plead its components with specificity. Coyne v. American Tobacco Co., 183

7 F.3d 488, 494 (6th Cir. 1999). Accordingly, JP Morgan Chase lacks standing to file the Proof of
8 Claim. Fed.R.Bankr.P. 3001 (“A proof of claim shall be executed by the creditor or the creditor's

9
authorized agent.”).
10
Since the claimant, JP Morgan Chase, has not established that it is the owner of the note
11
secured by the Deed of Trust, or even the transferee of the Deed of Trust, JP Morgan Chase is
12
13 unable to assert a claim for payment in this case.

14 No documents have been attached to the Proof of Claim (or subsequently produced)

15 evidencing that the Note (or even the Deed of Trust) was assigned, transferred, or delivered to JP

16
Morgan Chase. In fact the subsequently produced Note affirmatively establishes that the Note was
17
not transferred to JP Morgan Chase. Since the Note was never assigned, transferred, or properly
18
delivered to JP Morgan Chase, JP Morgan Chase is not the party holding the Note and, therefore,
19
may not be a creditor; accordingly, JP Morgan Chase lacks standing to file the Proof of Claim.
20

21 Fed. R. Bankr.P. 3001 (“A proof of claim shall be executed by the creditor or the creditor's

22 authorized agent.”). Therefore, the Debtor’s objection should be sustained, and the proof of claim
23 of JP Morgan Chase should be disallowed in its entirety. See In re Hernandez, 2009 WL 4639645
24
(Bkrtcy.S.D.Tex. 2009); In re Jacobsen, 402 B.R. at 359 (Bankr. W.D.Wash. 2009); In re
25
Sheridan, 2009 WL 631355 (Bankr. D.Idaho, 2009).
26
27

28

19
1
B. JP MORGA CHASE SHOULD BE SACTIOED FOR VIOLATIG
2 BAKRUPTCY RULE 3001

3 The Debtor alleges that the first Proof of Claim filed by JP Morgan Chase, Claim No. 21-1
4 was fraudulent because it attached a copy of the Note that did not have the special indorsement of
5
WaMu that appears on the original document. In addition, the second Proof of Claim filed by JP
6
Morgan Chase, Claim No. 43-1 was fraudulent, because it concealed the fact that the note had a
7
special indorsement from WaMu, by simply not attaching a copy of the Note. Both of the Proofs
8

9 of Claim filed with this Court are in violation of Bankruptcy Rule 3001 because they lack

10 necessary and true documents, i.e.,a true copy of the Note.


11 Furthermore, this Court has previously required claimant JP Morgan Chase to accurately
12 document ownership of its specific claim in compliance with Bankruptcy Rule 3001. Yet, JP
13
Morgan Chase responded by attempting to conceal the true contents of the Note by supplying a
14
non-conforming copy, objecting to producing the original for inspection and offering a sworn
15
affidavit instead of the true document. (See Statement of Facts, above.)
16
17 In fact, JP Morgan Chase committed three overt acts of concealment of the true original

18 Note, which would have shown from the start that JP Morgan Chase’s claim is invalid. JP Morgan
19 Chase is guilty of flagrant misconduct and fraudulent concealment of the truth before this Court in

20
an effort to preserve a claim that never should have been filed.
21
Courts have required claimants to accurately document ownership of a specific claim and
22
set show cause hearings for failure to comply with Bankruptcy Rule 3001. See, e.g., In re
23
Depugh, 409 B.R. 84, 97, 111 (Bankr.S.D.Tex.2009) (setting a show cause hearing requiring an
24

25 attorney to explain why he should not be sanctioned for violating Bankruptcy Rule 3001 and
26 providing grossly deficient proofs of claim).
27

28

20
1
Debtor requests the following relief: (1) attorney’s fees, actual damages, punitive damages,
2
and sanctions pursuant to 11 U.S.C. §§ 105(a) , 362(a), & 501, and Bankruptcy Rule 3001(c) &
3
(d).
4
5

6
C. D'OECH, FEDERAL HOLDER I DUE COURSE AD FIRREA DO OT
7 BAR TILA DEFESES

8 Notwithstanding the foregoing attack on JP Morgan Chase’s standing to file its Proof of

9 Claim herein, if the Court were to allow JP Morgan Chase’s claim, the claim would still be subject

10 to the truth in Lending Act (“TILA”) defenses that have been previously enumerated by Debtor.
11
This is because Debtor’s TILA’s defenses would not be barred by The common law D’Oench
12
doctrine, federal holder-in-due-course doctrine or FIRREA, 12 U.S.C. § 1823(e).
13
By way of background, the common law D’Oench doctrine and its statutory analogue, §
14
15 1823(e), each provide the FDIC with protection from unwritten agreements made by the failed

16 banks that the FDIC deals with. However, the common law D’Oench doctrine has always
17 provided broader protection than § 1823(e). In fact, the common law D’Oench doctrine has

18 gradually been expanded into a federal holder-in-due-course doctrine.


19
In the 1980s, the United States was embroiled in another banking crisis. To help the FDIC
20
cope with these failed banks, Congress enacted a number of laws, including the Financial
21
Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). FIRREA expanded the
22
23 scope of 12 U.S.C. § 1823(e) and increased the FDIC’s protection against claims arising from oral,
24 noncontemporaneous, unapproved, and unofficial agreements between failed banks and borrowers.

25 However, FIRREA had another effect as well. In 1995, the Court of Appeals for the
26
District of Columbia in Murphy v. FDIC, 61 F.3d 34 (D.C. Cir. 1995) held that FIRREA
27
preempted the common law D’Oench doctrine. The D.C. Circuit relied on O’Melveny & Myers v.
28
FDIC, 512 U.S. 79 (1994), which held that the judiciary could not create new federal common law

21
1
that alters congressional legislation. Subsequently, the Ninth Circuit issued a similar holding in
2
RTC v. Kennelly, 57 F.3d 819 (9th Cir. 1995).
3
FIRREA only bars the use of unwritten agreements in borrowers’ defenses against a note
4
5 held by the FDIC or a subsequent holder from FDIC.

6 Here, there is fraud in the origination and violations of TILA and RESPA that do not

7 require Debtor to rely on allegations of an unwritten agreement.


8
To the extent that any such arguments were advanced, Debtor hereby withdraws those
9
arguments and relies solely on allegations of fraud and violations of law in the loan origination
10
that do not involve allegations of unwritten promises or agreements.
11
Debtor has raised affirmative defenses alleging violations of the Truth in Lending Act
12
13 (TILA), 15 U.S.C. §1601 et seq., in the consummation of the underlying loan transaction. For

14 relief, Debtor has requested recoupment which is allowed defensively when Debtor is faced with
15 an action for collection of the debt.

16
12 U.S.C. § 1823(e) can be asserted by assignees of the FDIC. See Porras v. Petroplex
17
Sav. Ass'n, 903 F.2d 379 (5th Cir.1990). The FIRREA, as well as the D'Oench doctrine only
18
prevent the assertion of side agreements to defeat the interest of the FDIC where those agreements
19

20 are not in the records or books of the failed institution. However, the mistakes in the Truth in

21 Lending statements in this case do not qualify under the terms of section 1823(e), because they

22 come from the face of the documents of the institution itself. There is no secret agreement
23 between WaMu and Debtor which would reduce the value of an asset of WaMu.
24
Therefore, in this case as the issues are presented, the Court should hold that JP Morgan
25
Chase can be liable for section 1640 damages if Debtor proves TILA violations apparent on the
26
face of the loan documents.
27

28

22
1
However, because of the issue of standing and jurisdiction, the Court should not reach the
2
merits of the various TILA violations alleged by Debtor.
3
4
5 D. THE P&A IS OT A BAR TO ORIGIATIO DEFESES OF BORROWERS
6 The former Trustee has argued that all borrowers’ defenses against JP Morgan Chase
7
arising from the origination of the loans by WaMu, including the TILA defenses are barred
8
pursuant to section 2.5 of the P&A. Put another way, this argument contends that the contract
9
between JP Morgan Chase and the FDIC has the ability to impair the rights of third-parties. This
10
11 argument, of course runs contrary to basic contract law.
12 Moreover, FDIC cannot create protections for assuming banks beyond the protections that

13 Congress created in FIRREA. For, just as the courts have held that FIRREA preempted and

14 abrogated federal holder in due course common law, similarly the FDIC has no authority to limit
15
the defenses available to borrowers beyond the limits set forth in FIRREA. There simply is no
16
authority for the FDIC to create ad hoc protections for assuming banks that go beyond the scope of
17
existing law, and how much more so, since Congress has preempted this area with the enactment
18
19 of FIRREA.

20 Furthermore, FDIC has no enumerated power in this area. Indeed, were FDIC given such

21 authority to impair the rights of borrowers to seek redress in the courts, it would need to cite some

22
specific legal authority to do so.
23
However, Congress has expressly refrained from giving the FDIC powers that would
24
abrogate extant law. In the Federal Deposit Insurance Act, 12 U.S.C. § 1819, the FDIC is
25
prevented from exercising any powers that are inconsistent with law.3 Thus, FDIC has no ability
26
27

28 3
Federal Deposit Insurance Act, 12 U.S.C. § 1819 provides, in pertinent part,

23
1
to deny borrowers their rights under either the UCC, TILA or any other source of legal redress
2
they may have available to them. To say that the FDIC via the P&A abolished the legal rights of
3
borrowers by fiat is contrary to the clear language of the Federal Deposit Insurance Act.
4
5 Accordingly, the P&A cannot be used as a bar against borrowers’ defenses. At most the

6 P&A affords JP Morgan Chase as the assuming bank the right to seek redress against the FDIC by

7 putting assets back on the FDIC or seeking indemnification from FDIC for recoupment claims of
8
borrowers.
9
Therefore, in this case as the issues are presented, the Court should hold that JP Morgan
10
Chase can be liable for section 1640 damages if Debtor proves TILA violations apparent on the
11
face of the loan documents, notwithstanding the language contained in section 2.5 of the P&A.
12
13 However, because of the issue of standing and jurisdiction, the Court should not reach the

14 merits of the various TILA violations alleged by Debtor.


15

16
COCLUSIO
17
WHEREFORE, based upon the foregoing, the Debtor, Lenny Kyle Dykstra respectfully
18
submits that the court should rule that JP Morgan Chase has failed to satisfy the procedural
19
requirements of federal law in bringing its claim. These requirements include establishing
20

21 standing. The Court should dismiss the claim of JP Morgan Chase for lack of standing, and the

22
23 Corporate powers

24 (a) IN GENERAL.--Upon the date of enactment of the Banking Act of 1933, the Corporation shall
become a body corporate and as such shall have power--
25
Sixth. To prescribe, by its Board of Directors, bylaws not inconsistent with law, regulating
26 the manner in which its general business may be conducted, and the privileges granted to it
27 by law may be exercised and enjoyed.
Seventh. To exercise by its Board of Directors, or duly authorized officers or agents, all
28 powers specifically granted by the provisions of this chapter, and such incidental powers as
shall be necessary to carry out the powers so granted.

24
1
Court should award sanctions and Debtor’s counsel fees and cost in opposing this motion, and
2
such other and further relief as the Court deems just and proper.
3
DATED: September 7, 2010 THE MORTER LAW OFFICE, PC
4
5
By:__________________________
6 Moshe Mortner
Attorney for Debtor
7
8

10
11
12
13

14
15

16
17

18
19

20

21

22
23
24

25
26
27

28

25
1
DECLARATIO OF MOSHE MORTER
2

3
I, Moshe Mortner, declare and state as follows:
4
1. I am counsel for Lenny Kyle Dykstra (“Debtor”) (as of this writing pro hac vice
5

6 application sub judice). I have personal knowledge of the facts set forth herein and could, if called

7 as a witness, competently testify thereto.


8 2. I make this Declaration in opposition to the former trustee’s Motion for an order
9 approving a settlement with JP Morgan Chase.

10
3. I have read and I am aware of the contents of the Motion and the accompanying
11
Statement of Facts and Memorandum of Legal Authorities. The facts stated in the Motion and the
12
points and authorities are true to the best of my knowledge.
13

14 4. A copy of JP Morgan Chase’s Proof of Claim for Claim No. 21-1 is annexed hereto

15 as Exhibit A.

16 5. A copy of JP Morgan Chase’s Proof of Claim for Claim No. 43-1 is annexed hereto
17
as Exhibit B.
18
6. A copy of Mr. Neale’s August 13, 2010 response to the Court’s discovery order is
19
annexed as Exhibit C.
20
7. A copy of Mr. Neale’s August 20th supplemental response to the Court’s discovery
21

22 order is annexed as Exhibit D.


23 8. A copy of the note attached to the August 20, 2010 supplemental response of JP
24 Morgan Chase is annexed as Exhibit E.

25
9. A copy of the email thread evidencing JP Morgan Chase’s refusal or inability to
26
produce the original note is attached as Exhibit F.
27
10. A copy of the true original Note, bearing the special indorsement, which was
28
finally produced on August 25, 2010, is annexed as Exhibit G.

26
1

2
11. A copy of the Purchase and Assumption Agreement annexed is as Exhibit H.
3
12. For all of the foregoing reasons set forth in the attached Memorandum, I believe
4
5 that JP Morgan Chase lacks standing to appear as a creditor in this case.

6 I declare under penalty of perjury under the laws of the United States of America that the

7 foregoing is true and correct.


8
Executed on September 7, 2010 at New York, New York.
9

10
________________________
11 Moshe Mortner
12
13

14
15

16
17

18
19

20

21

22
23
24

25
26
27

28

27
PROOF OF SERVICE

2 I, Dorothy Van Kalsbeek, declare:

3 I am over the age of 18 years and not a party to the within action or proceeding. My
business address is in the city of Los Angeles, County of Los Angeles, State of California.
4

5 On September 7, 2010, I served a true copy of the foregoing;

6 DEBTORS MOTION UNDER 11 U.S.C. § 701(a) FOR VOLUNTARY DISMISSAL OF


BANKRUPTCY
7
[ ] E-mail: By transmitting said document(s) via e-mail before 5:00 p.m. on this date
8
9 to the e-mail address(es) set forth below. The transmission was reported as complete and

10 without error.
11
[ ] Facsimile: By transmitting said document(s) via facsimile before 5:00 p.m. on
12
this date to the fax number(s) set forth below. The transmission was reported as complete and
13
without error.
14

15 [X] By Mail: By placing said document(s) in a sealed envelope, with postage thereon
16 fully prepaid, addressed as set forth below, and on this date depositing said envelope in the
17
United States mail at Los Angeles County, California. I am aware that on motion of the party
18
served, service by mail is presumed invalid if postal cancellation date or postage meter date is
19
more than one day after the date of deposit for mailing as set forth herein.
20

21 See Attached List


22 I declare under penalty of perjury under the laws of the State of California and the United
States of America that the foregoing is true and correct; and that this Proof of Service was
23 executed on September 7, 2010, at Los Angeles, California.
24

25
26
__________________________
27
28 28
PROOF OF SERVICE ISTRUCTIOS

2 Serve by first class mail:

3
4
Hon. Geraldine Mund
5
United States Bankruptcy Court - Central District of California
6
21041 Burbank Boulevard, Suite 342
7
Woodland Hills, CA 91367
8
9
S. Margaux Ross
10 Atty for US Trustee I. Bruce Speiser
21051 Warner Center Ln. #115 Pircher, Nichols & Meeks
11 Woodland Hills, CA 91367 1925 Canterbury Park East, Suite 1700
Los Angeles, CA 90067
12 M. Jonathan Hayes
13 9700 Reseda Blvd. Suite 201 Richard P Towne
Northridge, CA 91324 3625 Thousand Oaks Blvd Ste 267
14 Westlake Village, CA 91362
Arturo Cisneros
15 2112 Business Center Drive David Vigliano
2nd Floor 405 Park Avenue, Ste. 1700
16 Irvine, CA 92612 New York, NY 10022
17
Leonard M. Shulman
18 Robert E. Huttenhoff
Shulman Hodges & Bastian LLP
19 26632 Towne Center Dr. Suite 300
Foothill Ranch, CA 92610
20
K & L Gates
21 Evan B Sorensen 10100 Santa Monica Blvd., 7th Floor
Tressler, Soderstrom, Maloney & Priess Los Angeles, CA 90067
22 3070 Bristol Street, Suite 450
Costa Mesa, CA 92626 O'Melveny & Myers
23 c/o Daniel Petrocelli
David Neale 1999 Ave of the Stars
24
JP Fritz Los Angeles, CA 90067
25 Levene, Neale, Bender, Rankin & Brill
LLP Sherwood Country Club
26 10250 Constellation Blvd, Suite 1700 320 W. Stafford Road
Los Angeles, CA 90067 Westlake Village, CA 91361
27
28 29
2
, 3205(a)
3
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8
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