memo no standing

8/8/2019 Memo No Standing

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Moshe Mortner, Esq.

Mortner Law Office, PC

130 William Street, 5th FloorNew York, NY 10038Telephone [email protected]

Attorney for DebtorLenny K. Dykstra(Pro Hac Vice Application Sub Judice)

UNITED STATES BANKRUPTCY COURTCENTRAL DISTRICT OF CALIFORNIASAN FERNANDO VALLEY DIVISION

In re

LEY KYLE DYKSTRA,

Debtor.

CASE NO.: 1:09-bk-18409-GM

Chapter 7

DEBTORS SUPPLEMETAL

OPPOSITIO TO TRUSTEES MOTIO

FOR ORDER APPROVIG

SETTLEMET AD COMPROMISE

BETWEE THE ESTATE, TERRI

DYKSTRA, AD JPMORGA CHASE,

ADDRESSIG ISSUES OF:

(i) STADIG OF

JP MORGA CHASE, AD

(ii) POTETIAL BARS TO THEASSERTIO OF ORIGIATIO

DEFESES TO THE OTE; AD

DEBTORS OBJECTIO TO THE

PROOF OF CLAIM OF JP MORGA

CHASE, PURSUAT TO 11 U.S.C. 502(a)

***

DECLARATIO OF MOSHE MORTER

I SUPPORT


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Table of Contents

SUPPLEMETAL OPPOSTIO TO MOTIO OF FORMER TRUSTEE FOR

APPROVAL OF SETTLEMET WITH JP MORGA CHASE AD OBJECTIO TO

PROOF OF CLAIM ........................................................................................................................ 5

PRELIMIARY STATEMET ........................................................................................ 5

STATEMET OF FACTS ................................................................................................. 6

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

A. JPMORGANCHASELACKSSTANDINGTOAPPEARASACREDITOR ..... 12

1. The Debtor has Standing to Object to JP Morgan Chases Proof of Claim ....... 12

2. The Legal Standard under Fed.R.Civ.P. 12(b)(1) ............................................... 12

3. The Creditors Real Party In Interest Standing Requirement ......................... 13

4. Californias Commercial Code Establishes JP Morgan Chase is not a Holder . 14

5. JP Morgan Chase Has o Conveyance of the Deed of Trust. ............................ 17

6. JP Morgan Chase has no Standing as a Loan Servicer ...................................... 17

7. JP Morgan Chases Proof of Claim Should be Disallowed. ............................... 19

B. JPMORGANCHASESHOULDBESANCTIONEDFORVIOLATING

BANKRUPTCYRULE3001 ...................................................................................................... 20

C. D'OECH,FEDERALHOLDERINDUECOURSEANDFIRREADONOTBAR

TILADEFENSES ........................................................................................................................ 21

D. THEP&AISNOTABARTOORIGINATIONDEFENSESOFBORROWERS . 23

COCLUSIO .................................................................................................................. 24

DECLARATIO OF MOSHE MORTER ................................................................... 26


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TABLE OF LEGAL AUTHORITIES

CASES

Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) .......... .......... ........... .......... ........... .......... ... 13

Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) .......... ........... .......... ........... ....... 14, 16

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

Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) .......... ........... .......... ........... .......... ........... ........... .... 19

Doran v. 7-Eleven Inc., 524 F.3d 1034, 1044 (9th Cir.2008) ........... .......... ........... .......... ........... .......... ........... ........... .... 13

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

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

Inre Gavin, 319 B.R. 27, 31 (1st Cir. BAP 2004)................... .......... ........... ........... .......... ........... .......... ........... .......... ... 18

In re Hernandez, 2009 WL 4639645 (Bkrtcy.S.D.Tex. 2009) .......... ........... ........... .......... ........... .......... ........... ....... 12, 19

In re Kang Jin Hwang, 396 B.R. 757 (C.D.CA Bankr.2008) ........... .......... ........... .......... ........... .......... ........... ... 13, 14, 17

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

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

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

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) .......... .......... 12

LaSalle Bank .A. v. Lehman Bros. Holdings, Inc., 237 F.Supp.2d 618, 631-34 (D.Md.2002) .......... .......... ........... ...... 17

LaSalle Bank .A. v. omura Asset Capital Corp., 180 F.Supp.2d 465, 469-71 (S.D.N.Y.2001) ........... .......... ........... . 17

Magill v. Davenport, 120 Cal.App. 387, 8 P.2d 169 (App. 1 Dist. 1932) ........... ........... .......... ........... .......... ........... ...... 15

Mancuso v. Sullivan (In re Sullivan), 153 B.R. 751, 754 (Bankr.N.D.Tex.1993) .......... .......... ........... .......... ........... ...... 12

Morrow v. Microsoft Corp., 499 F.3d 1332, 1339 (Fed.Cir.2007) ................................................................................. 13

Murphy v. FDIC, 61 F.3d 34 (D.C. Cir. 1995) .......... .......... ........... .......... ........... ........... .......... ........... .......... ........... ...... 21

OMelveny & Myers v. FDIC, 512 U.S. 79 (1994) ......................................................................................................... 21

Porras v. Petroplex Sav. Ass'n, 903 F.2d 379 (5th Cir.1990) ........... .......... ........... .......... ........... .......... ........... ........... .... 22

RTC v. Kennelly, 57 F.3d 819 (9th Cir. 1995) ................................................................................................................ 22

Spencer v. Sterling Bank, 74 Cal.Rptr.2d 576, 63 Cal.App.4th 1055 (App. 2 Dist. 1998) ........... .......... ........... .......... ... 15

Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) ........... ........ 13


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U.S. v. AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir.1992) .......... ........... ........... .......... ........... .......... ........... .......... .......... 13

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) .......... .......... ........... .......... ........... .......... ........... . 13

STATUTES

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

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

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

12 U.S.C. 1819 ............................................................................................................................................................ 23

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

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

CCom 3109(c) ............................................................................................................................................................. 15

CComC 3102(a) ........................................................................................................................................................... 14

CComC 3104(a), (b) and (e) .......... ........... .......... ........... .......... ........... ........... .......... ........... .......... ........... .......... .......... 15

CComC 3201 ............................................................................................................................................................... 16

CComC 3205(a) ..................................................................................................................................................... 15, 30

CComC 3205(b) .......................................................................................................................................................... 15

CComC 3301(a) ........................................................................................................................................................... 15

RULES

Fed.R.Bankr.P. 3001....................................................................................................................................... 6, 19, 20, 21

Fed.R.Civ.P. 12(b)(1) ..................................................................................................................................................... 12

Fed.R.Civ.P. 17 .............................................................................................................................................................. 18

TREATISES

6A Wright 1553 ........................................................................................................................................................... 18


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SUPPLEMETAL OPPOSTIO TO MOTIO OF FORMER TRUSTEE FOR

APPROVAL OF SETTLEMET WITH JP MORGA CHASE AD OBJECTIO TO

PROOF OF CLAIM

In this opposition of LENNY KYLE DYKSTRA (Debtor) to the former trustees motion

for approval of settlement with JP Morgan Chase, the Debtor respectfully represents that approval

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

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

In further opposition to the former trustees Motion, the Debtor respectfully represents as

follows:

PRELIMIARY STATEMET

Debtor sets forth herein the following contentions and legal arguments:

(1) That JP Morgan Chase lacked standing to file its Proof of Claim, and therefore, inan adversary proceeding or upon motion of the new chapter 7 trustee, JP Morgan

Chases complaint and proof of claim would be dismissed by this Court;

(2) That, upon the objection of Debtor herein, this Court should disallow the Proof ofClaim of JP Morgan Chase due to lack of standing, which deprives this Court of

jurisdiction over the claim;

(3) That the Debtor is entitled to recover sanctions and attorney's fees from JP MorganChase because of the false and fraudulent filing of its ProofS of Claim and the

pattern of concealment of documents material to the Debtors defense of this claim;

(4) That, notwithstanding the lack of standing defense to JP Morgan Chase, the Courtshould not approve the Trustees proposed settlement with JP Morgan Chase,

because the claim would be subject to Debtors defenses arising from the

origination of the underlying loan including Truth In Lending Act defenses for

recoupment; and


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(5) That the Debtors loan origination defenses would not be barred by:a. Federal Holder in Due Course common law;b. The doctrine ofD'Oench Dhume;c. Holder in Due Course law of the Uniform Commercial Code under the laws

of the State of California;

d. The protections afforded to the FDIC and its assuming banks by FIRREA;and

e. The bar against borrowers defenses that is allegedly granted to JP MorganChase by the Purchase and Assumption Agreement between JP MorganChase and the FDIC (the P&A); and

Thus, the Debtor requests the following relief: (1) An order disallowing the Proof of Claim

of JP Morgan Chase; and (2) actual damages, punitive damages, and sanctions pursuant to 11

U.S.C. 105(a) , 362(a), & 501, and Bankruptcy Rule 3001(c) & (d). Alternatively, Debtor

requests that the Court deny the Trustees motion for approval of the proposed settlement and

compromise agreement with JP Morgan Chase and allow an adversary proceeding as to the claim

of JP Morgan Chase.

As will be shown below, all of the arguments that have been advanced by the former

trustee as proxy for JP Morgan Chase and in support of the proposed settlement agreement are

vacuous and without merit.

Regarding JP Morgan Chases claim in this proceeding, we say with a clear and confident

voice, The Emperor has no clothes!

STATEMET OF FACTS

On October 19, 2009, JP Morgan Chase filed a Proof of Claim in this proceeding, Claim

No. 21-1. The first page of the Proof of Claim form stated Basis of Claim: Money Loaned, Real

Property. Attached to Proof of Claim 21-1 was a deed of trust and a promissory note executed by

Terri Dykstra. On each page of the note was a stamp that says, WE HEREBY CERTIFY THAT


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THIS IS A TRUE AND CORRECT COPY OF THE ORIGINAL IN OUR FILE. o further

indorsements appear on the face of the note attached to JP Morgan Chase Proof of Claim, for

Claim o. 21-1. This was the first act of fraudulent concealment by JP Morgan Chase of

documents that invalidate the claim.

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

secured by certain real estate known as the 1072 Newbern Court, Westlake Village, CA 91361

(the Newbern Property). The amount of the claim stated on page one of the Proof of Claim is

$13,033,044.05. A copy of JP Morgan Chases Proof of Claim for Claim No. 21-1 is annexed to

the Mortner Declaration as Exhibit A.

On February 23, 2010, JP Morgan Chase filed a new Proof of Claim in this proceeding,

Claim No. 43-1. However, this time the first page of the Proof of Claim form stated Basis of

Claim: promissory note & deed of trust. Strangely though, on Claim No. 43-1 no promissory

note was attached to the Proof of Claim. This was the second act of fraudulent concealment by

JP Morgan Chase of documents that invalidate the claim.

The absence of the note on Claim No. 43-1 was a violation of the requirements of

Bankruptcy Rule 3001.

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

copy of JP Morgan Chases Proof of Claim for Claim 43-1 is annexed to the Mortner Declaration

as Exhibit B.

The Deed of Trust attached to Claim 43-1 was the same Deed of Trust, dated August 21,

2007, that was attached to Claim 21-1. The lender listed on the Deed of Trust is Washington

Mutual Bank FA (WaMu), not JP Morgan Chase. The Deed of Trust states, This Security

Instrument [i.e., the Deed of Trust] secures to Lender: (i) the repayment of the Loan, and all

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


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I have seen an email from Mr. Dykstra where he contendsthat my client does not have the original note. To the contrary, andas reflected in the proof of claim filed by my client, JP MorganChase is the holder of the original note signed by Terri Dykstra. Atrue and correct copy of that note (which has already been submittedin several contexts in this case, including, I believe, by you) fromthe JP Morgan Chase files is attached for your reference.

A copy of Mr. Neales August 20th supplemental response to the Courts discovery order is

annexed to the Mortner Declaration as Exhibit D.

The copy supplied by Mr. Neale was similar to the copy attached to JP Morgan Chases

Proof of Claim for Claim No. 21-1. The copy of the Note supplied on August 20, 2010 by Mr.

Neale, like the copy attached to JP Morgan Chases Proof of Claim for Claim No. 21-1, did not

have a special indorsement over the blank indorsement of Terri Dykstra. The copy of the note

supplied with Mr. Neales August 20th email is annexed hereto as Exhibit E. This was the third act

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

Mr. Neales August 20th email raised more questions than it resolved. First, Mr. Neale

stated that his clients possession of the original note was reflected in the proof of claim.

However, there was no note attached to the Proof of Claim for Claim No. 43-1, only for Claim No

21-1. Second, he stated that the attached note was a true and correct copy of the note from the

JP Morgan Chase files. Indeed, the copy Mr. Neale attached bore a legend stating it is a true

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

Morgan Chase, which would have indicated that the copy was a copy of the original in JP Morgan

Chases files. Rather the copy supplied by Mr. Neale appeared to be a copy of the Note that had

been supplied by the Dykstras title company, West Coast Escrow, and the stamp stating it was a

true and correct copy appeared to be the stamp affixed by West Coast Escrow - not by JP Morgan

Chase. Therefore, it appeared that contrary to his representation, Mr. Neale had not supplieda

true copy of the original Notefrom the JP Morgan Chase files.


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Therefore, Debtors counsel demanded an inspection of the original Note.

This demand opened up a slurry of objections and excuses as to why JP Morgan Chase did

not need to and could not produce the original note for inspection.2 (See the email thread attached

to the Mortner Declaration as Exhibit F.) At one point, JP Morgan Chases counsel shot back that

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

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

inspection of the original note.

Fortunately, Debtors counsel did not waiver in demanding inspection of the original note.

For, when the Note was finally produced it was revealed for the first time that it bore a material

difference from the true and correct copies that had been supplied by JP Morgan Chase; the

original note bore a stamp stating: Pay to the order of, without recourse, Washington Mutual

Bank, FA signed by a Vice President of WaMu. A copy of the true original Note, bearing the

special indorsement, which was finally produced on August 25, 2010, is annexed to the Mortner

Declaration as Exhibit G.

This special indorsement had been concealed by JP Morgan Chase in the October 2009

filing of its first Proof of Claim for Claim No. 21-1. Then, the special indorsement was concealed

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

2August 23, 2010 Mr. Neale: It is patently unreasonable for you to demand that the original

document be delivered here within 1 week. First of all, it is not clear to me why you need the original,

particularly since no one has ever challenged the fact that the note was duly executed by Terri Dykstra.

August 25, 2010, Mr. Neale: The issue is not the relevance of the note, the question is your need to

inspect the original. My client would be happy to provide a declaration under penalty of perjury that it

holds the original note.


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for a new claim, Claim No. 43-1. This time, rather than offer a nonconforming copy of the Note,

JP Morgan Chase simply filed no copy of the Note with the second Proof of Claim.

As explained below, on the basis of this special indorsement, JP Morgan Chase is deprived

of the status of a holder, and thus has no standing in this Court.

Accordingly, the months of tortuous proceedings over the former trustees proposed

settlement agreement could have been avoided had JP Morgan Chase faithfully disclosed this

document, as required by the Rules.

Instead, JP Morgan Chase withheld this document. In fact at the hearing on August 6,

2010, JP Morgan Chases counsel even went so far as to argue that the Court should make a

speedy determination on the motion to approve the settlement by setting a drop dead date. Had

the Court accepted that argument, then JP Morgan Chase would have been allowed to steal the

Dykstras home without the true content of the Note ever being revealed.

Furthermore, following the August 6th hearing, JP Morgan Chase continued in its ongoing

efforts to conceal the truth from this Court, by producing on August 20, 2010 a nonconforming

copy of the note and claiming it was a true and correct copy of the original document in the JP

Morgan Chase files. The nonconforming copy did not contain the special indorsement. Had

Debtors counsel simply accepted JP Morgan Chases representation, without demanding

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

would have been allowed to steal the Debtors home.

Only when there was no way to continue withholding the original document from

inspection, did JP Morgan Chase come clean, and now the truth is at last revealed. JP Morgan

Chase never had a valid claim.


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MEMORADUM OF LEGAL AUTHORITIES

A. JP MORGA CHASE LACKS STADIG TO APPEAR AS A CREDITOR1. The Debtor has Standing to Object to JP Morgan Chases Proof of Claim

The Debtor has standing to object to the Proof of Claim of JP Morgan Chase because 11

U.S.C. 502(a) states that [a] claim or interest, proof of which is filed under section 501 of this

title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a

partnership that is a debtor in a case under chapter 7 of this title, objects. 11 U.S.C. 502(a). The

Debtor is a party-in-interest in this Chapter 7 case. Accordingly, the Debtor has standing to object

to the Proof of Claim. Once an objection has been filed, the court may determine the amount of

the claim after a noticed hearing. 11 U.S.C. 502 (b). SeeIn re Hernandez, 2009 WL 4639645

(Bkrtcy.S.D.Tex. 2009).

2. The Legal Standard under Fed.R.Civ.P. 12(b)(1)On a motion to dismiss the complaint of JP Morgan Chase in an adversary proceeding, the

court would apply the following legal standard. A motion to dismiss for lack of standing may be

treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.

12(b)(1). Mancuso v. Sullivan (In re Sullivan), 153 B.R. 751, 754 (Bankr.N.D.Tex.1993). If a

plaintiff lacks constitutional standing, the suit is not a case or controversy, and an Article III

federal court therefore lacks subject matter jurisdiction over the suit. Cetacean Community v.

Bush, 386 F.3d 1169, 1174 (9th Cir.2004). On a motion to dismiss for lack of subject matter

jurisdiction, the plaintiff bears the burden of establishing subject matter jurisdiction. See

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391

(1994); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225


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(9th Cir.1989). The burden of proof is on the party asserting jurisdiction.Eads, 135 B.R. 387,

391 (E.D.Cal.,1991).

3. The Creditors Real Party In Interest Standing RequirementThe threshold issue of whether JP Morgan Chase may enforce the Note is one of standing.

Generally, a party without legal rights to enforce an obligation under applicable substantive law

lacks prudential standing.Doran v. 7-Eleven Inc., 524 F.3d 1034, 1044 (9th Cir. 2008). Similar

to Article III standing, prudential standing, i.e., the real party in interest, is a threshold

determinant of the propriety of judicial intervention, Warth, 422 U.S. at 498-99, 95 S.Ct. 2197,

and places a limit on the exercise of federal jurisdiction.Allen v. Wright, 468 U.S. 737, 751, 104

S.Ct. 3315, 82 L.Ed.2d 556 (1984).

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

following exposition of the standing issue in Bankruptcy Court:

Standing is a threshold question in every federal case,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,

a defect in standing cannot be waived; it must be raised, either bythe parties or by the court, whenever it becomes apparent. U.S. v.AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir.1992).

***

The real party in interest requirement, on the other hand, isgenerally regarded as one of many prudential considerations thathave been judicially engrafted onto the Article III requirements forstanding. 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

must meet both the constitutional requirements (standing) and theprudential requirements (including real party in interest). Morrow v.Microsoft Corp., 499 F.3d 1332, 1339 (Fed.Cir.2007); see alsoVillage 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 proposition that [t]he concept of standing subsumes a blend ofconstitutional requirements and prudential considerations).


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Id., at 768-9

In addition to standing, the Trustee must show that JP Morgan Chase is entitled to relief

from the automatic stay, because by its terms, the proposed settlement agreement seeks to grant JP

Morgan Chase relief from the automatic stay to proceed with foreclosure on the Debtors' Newbern

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

interest.

In defining a party in interest the Court inIn re Urdahl, 2008 WL 8013408, 1

(Bkrtcy.S.D.Cal., 2008) held that [a] party seeking relief from the automatic stay to exercise

rights as to property must demonstrate at least a colorable claim to the property. citingIn re

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

4. Californias Commercial Code Establishes JP Morgan Chase is not a HolderTo determine whether JP Morgan Chase is a holder of the Note it is necessary to examine

the law of promissory notes.

Bankruptcy law does not generally provide for the enforcement of promissory notes. As a

result, the legal obligations of the parties must be determined by applicable non-bankruptcy law,

which is usually state law. SeeButner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59

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

state has adopted a version of the U.C.C. concerning negotiable instruments, which applies to

promissory notes. Accordingly, the Court must turn to the California statutes incorporating the

Uniform Commercial Code, specifically Article 3 dealing with negotiable instruments. The

substantive California law that governs negotiable instruments is CComC Division 3 (the

California version of UCC Article 3). See CComC 3102(a).


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The note here at issue is a negotiable instrument, as defined in the CComC 3104(a), (b)

and (e). The note is on a standard printed form that is used in the finance industry for notes that are

freely bought and sold in a manner consistent with treating it as a negotiable note.

In addition, this case involves a note secured by a deed of trust. An instrument, including

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

3301(a); UCC 3-301(a). Only a transfer by negotiation can result in the party obtaining the

instrument receiving the rights of a holder, the right to enforce the note.

A fundamental feature of negotiable instruments is that they are not transferred by contract

or assignment. Rather, negotiable instruments, in the case of notes with blank indorsements, are

transferred by the delivery of possession, and thereby are enforceable by anyone in its possession

(much like paper currency). See CComC 3205(b); UCC 3-205(b). Whereas, in the case of

specially indorsed notes, they are transferred by delivery of possession plus the transferor must

indorse the instrument to make it payable to the transferee. (CComC 3205(a); UCC 3-205(a)).

When specially indorsed, an instrument becomes payable to the identified person and may be

negotiated only by the indorsement of that person. (CComC 3205(a); UCC 3-205(a)).

On the Note relied upon by JP Morgan Chase for its claim in this case, WaMu added its

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

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

identified person and may only be further negotiated by an indorsement of that person. Spencer v.

Sterling Bank, 74 Cal.Rptr.2d 576, 63 Cal.App.4th 1055 (App. 2 Dist. 1998). Cal.Com.Code

3109(c). When a holder of a note writes over a blank indorsement and indorses the note payable

in full to itself, the payees blank indorsement is thereby converted to a special indorsement.

Magill v. Davenport, 120 Cal.App. 387, 8 P.2d 169 (App. 1 Dist. 1932). Therefore, the Terri


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Dykstra Note could only be negotiated to JP Morgan Chase by another special indorsement from

WaMu making the Note payable to JP Morgan Chase or payable to bearer.

InInre Urdahl, 2008 WL 8013408, 1 (Bkrtcy.S.D.Cal.,2008), Deutsche Bank, as Trustee

for a WaMu securitization trust moved for relief from the automatic stay to proceed with

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

grounds that Deutsche Bank lacked standing. In support of the motion, Deutsche Bank provided

the copies of the original Note and Deed of Trust. Regarding the Deed of Trust, the Court found,

Though it is undisputed that WAMU held a security interest in the Property by virtue of the Deed

of Trust, Deutsche Bank has provided no evidence at all that any interest in the Deed of Trust was

ever assigned from WAMU to Deutsche Bank, or to anyone else for that matter. Regarding the

note, the Court observed that the Note had an endorsement that was a stamp signed by a vice

president of WaMu reading Pay to the order of ______. The space for payees was left blank.

The Court found there was no evidence of the Note being transferred to Deutsche Bank or the

Trust it represented and denied the motion for relief.

Here the note offered by JP Morgan Chase also had an endorsement that was a stamp

signed by a vice president of WaMu, except that here the stamp read Pay to the order of

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

holder of the Note.

To argue that JP Morgan Chase is conferred the status of a holder by virtue of the P&A

would be contrary to the law of California with respect to the negotiation of instruments and their

enforcement, which is the controlling law in this District. Butner v. United States, 440 U.S. 48,

54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). The here specifically identified the party to whom it

was payable, WaMu, and the note therefore cannot be transferred unless the note is endorsed. See

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


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5. JP Morgan Chase Has o Conveyance of the Deed of Trust.Moreover, as in Urdahl, there is no evidence here that any interest in the Deed of Trust

was ever assigned from WaMu to the alleged transferee, JP Morgan Chase. In fact, the P&A, by

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

to JP Morgan Chase. Section 3.3 of the P&A states, THE CONVEYANCE OF ALL ASSETS,

INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY THE

ASSUMING BANK UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY

RECEIVERS DEED OR RECEIVERSS BILL OF SALE. See the Purchase and Assumption

Agreement annexed as Exhibit H to the Mortner Declaration. Thus, the P&A, section 3.3, requires

documentary evidence for each transfer of a deed of trust to JP Morgan Chase. No such

documentation exists in support of JP Morgan Chases claim herein.

6. JP Morgan Chase has no Standing as a Loan ServicerWaMu may have been the loan servicer for the note herein, even after it sold the note in a

securitization deal. Moreover, JP Morgan Chase may have acquired WaMus status as the notes

servicer via the Purchase and Assumption Agreement.

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

the securitization trust, not the servicing agent, albeit the servicing agent may be a party in

interest. In re Kang Jin Hwang, 396 B.R. 757 (C.D.CA Bankr.2008) (citingLaSalle Bank .A. v.

omura Asset Capital Corp., 180 F.Supp.2d 465, 469-71 (S.D.N.Y.2001); accord,LaSalle Bank

.A. v. Lehman Bros. Holdings, Inc., 237 F.Supp.2d 618, 631-34 (D.Md.2002)).

However, as the court inHwangpointed out, being aparty in interestis limited to

purposes of bankruptcy, such as in the context of relief from the automatic stay, 11 U.S.C.


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362(d). Conversely, for purposes of standing, Rule 17 of the Federal Rules of Civil Procedure

requires that a party be a realparty in interest.

InHwang, the court posed the question thus: [T]he question remains: to whom is the debt

owed (i.e., who owns the promissory note)? See In re Gavin, 319 B.R. 27, 31 (1st Cir. BAP

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

agent into a real party in interest. SeeHwang, at 767, quoting As a general rule, a person who is

an attorney-in-fact or an agent solely for the purpose of bringing suit is viewed as a nominal rather

than a real party in interest and will be required to litigate in the name of his principal rather than

in his own name. 6A Wright 1553.

Consequently, even when the claimant offers evidence that a proper agency relationship

exists between the claimant and the true holder of the note, that would not excuse the requirement

that the claim be prosecuted in the name of the noteholder, who is the real party in interest not

in the name of the servicer. Fed.R.Civ.P. 17(a)(1).

InHwang, the court found that at most the bank retained only loan servicing rights. The

court stated,

Most likely, Freddie Mac sold the note into a securitizationtrust. IndyMac does not know who owns the note today, although itstill has possession of the note and there is nothing on the note toindicate that it has been transferred. In addition, IndyMac hasfailed to provide any documents showing its sale of the note or itsstatus as a servicing agent for the note's new owner.

Based on all the evidence submitted by JP Morgan Chase in this case, the bank is neither a

holder or a servicer of this Note. Therefore, they lack standing and their claim must be dismissed.

In fact, the Court cannot determine who the real party in interest is. However, without doubt, JP

Morgan Chase has no standing. Therefore, the proof of claim filed in JP Morgan Chases name

must be disallowed for lack of standing.


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7. JP Morgan Chases Proof of Claim Should be Disallowed.Based on all of the foregoing, the Court should find that JP Morgan Chase has failed to

establish that it is a real party in interest. Therefore, JP Morgan Chase may not be appear as a

creditor of the Debtor herein. A party seeding to file a claim bears the burden of demonstrating

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

F.3d 488, 494 (6th Cir. 1999). Accordingly, JP Morgan Chase lacks standing to file the Proof of

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

authorized agent.).

Since the claimant, JP Morgan Chase, has not established that it is the owner of the note

secured by the Deed of Trust, or even the transferee of the Deed of Trust, JP Morgan Chase is

unable to assert a claim for payment in this case.

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

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

Morgan Chase. In fact the subsequently produced Note affirmatively establishes that the Note was

not transferred to JP Morgan Chase. Since the Note was never assigned, transferred, or properly

delivered to JP Morgan Chase, JP Morgan Chase is not the party holding the Note and, therefore,

may not be a creditor; accordingly, JP Morgan Chase lacks standing to file the Proof of Claim.

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

authorized agent.). Therefore, the Debtors objection should be sustained, and the proof of claim

of JP Morgan Chase should be disallowed in its entirety. SeeIn re Hernandez, 2009 WL 4639645

(Bkrtcy.S.D.Tex. 2009);In re Jacobsen, 402 B.R. at 359 (Bankr. W.D.Wash. 2009);In re

Sheridan, 2009 WL 631355 (Bankr. D.Idaho, 2009).


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B. JP MORGA CHASE SHOULD BE SACTIOED FOR VIOLATIGBAKRUPTCY RULE 3001

The Debtor alleges that the first Proof of Claim filed by JP Morgan Chase, Claim No. 21-1

was fraudulent because it attached a copy of the Note that did not have the special indorsement of

WaMu that appears on the original document. In addition, the second Proof of Claim filed by JP

Morgan Chase, Claim No. 43-1 was fraudulent, because it concealed the fact that the note had a

special indorsement from WaMu, by simply not attaching a copy of the Note. Both of the Proofs

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

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

Furthermore, this Court has previously required claimant JP Morgan Chase to accurately

document ownership of its specific claim in compliance with Bankruptcy Rule 3001. Yet, JP

Morgan Chase responded by attempting to conceal the true contents of the Note by supplying a

non-conforming copy, objecting to producing the original for inspection and offering a sworn

affidavit instead of the true document. (See Statement of Facts, above.)

In fact, JP Morgan Chase committed three overt acts of concealment of the true original

Note, which would have shown from the start that JP Morgan Chases claim is invalid. JP Morgan

Chase is guilty of flagrant misconduct and fraudulent concealment of the truth before this Court in

an effort to preserve a claim that never should have been filed.

Courts have required claimants to accurately document ownership of a specific claim and

set show cause hearings for failure to comply with Bankruptcy Rule 3001. See, e.g., In re

Depugh, 409 B.R. 84, 97, 111 (Bankr.S.D.Tex.2009) (setting a show cause hearing requiring an

attorney to explain why he should not be sanctioned for violating Bankruptcy Rule 3001 and

providing grossly deficient proofs of claim).


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Debtor requests the following relief: (1) attorneys fees, actual damages, punitive damages,

and sanctions pursuant to 11 U.S.C. 105(a) , 362(a), & 501, and Bankruptcy Rule 3001(c) &

(d).

C.D'OECH, FEDERAL HOLDER I DUE COURSE AD FIRREA DO OTBAR TILA DEFESES

Notwithstanding the foregoing attack on JP Morgan Chases standing to file its Proof of

Claim herein, if the Court were to allow JP Morgan Chases claim, the claim would still be subject

to the truth in Lending Act (TILA) defenses that have been previously enumerated by Debtor.

This is because Debtors TILAs defenses would not be barred by The common lawDOench

doctrine, federal holder-in-due-course doctrine or FIRREA, 12 U.S.C. 1823(e).

By way of background, the common lawDOench doctrine and its statutory analogue,

1823(e), each provide the FDIC with protection from unwritten agreements made by the failed

banks that the FDIC deals with. However, the common lawDOench doctrine has always

provided broader protection than 1823(e). In fact, the common lawDOench doctrine has

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

In the 1980s, the United States was embroiled in another banking crisis. To help the FDIC

cope with these failed banks, Congress enacted a number of laws, including the Financial

Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). FIRREA expanded the

scope of 12 U.S.C. 1823(e) and increased the FDICs protection against claims arising from oral

noncontemporaneous, unapproved, and unofficial agreements between failed banks and borrowers

However, FIRREA had another effect as well. In 1995, the Court of Appeals for the

District of Columbia in Murphy v. FDIC, 61 F.3d 34 (D.C. Cir. 1995) held that FIRREA

preempted the common lawDOench doctrine. The D.C. Circuit relied on OMelveny & Myers v.

FDIC, 512 U.S. 79 (1994), which held that the judiciary could not create new federal common law


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that alters congressional legislation. Subsequently, the Ninth Circuit issued a similar holding in

RTC v. Kennelly, 57 F.3d 819 (9th Cir. 1995).

FIRREA only bars the use of unwritten agreements in borrowers defenses against a note

held by the FDIC or a subsequent holder from FDIC.

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

require Debtor to rely on allegations of an unwritten agreement.

To the extent that any such arguments were advanced, Debtor hereby withdraws those

arguments and relies solely on allegations of fraud and violations of law in the loan origination

that do not involve allegations of unwritten promises or agreements.

Debtor has raised affirmative defenses alleging violations of the Truth in Lending Act

(TILA), 15 U.S.C. 1601 et seq., in the consummation of the underlying loan transaction. For

relief, Debtor has requested recoupment which is allowed defensively when Debtor is faced with

an action for collection of the debt.

12 U.S.C. 1823(e) can be asserted by assignees of the FDIC. SeePorras v. Petroplex

Sav. Ass'n, 903 F.2d 379 (5th Cir.1990). The FIRREA, as well as theD'Oench doctrine only

prevent the assertion of side agreements to defeat the interest of the FDIC where those agreements

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

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

come from the face of the documents of the institution itself. There is no secret agreement

between WaMu and Debtor which would reduce the value of an asset of WaMu.

Therefore, in this case as the issues are presented, the Court should hold that JP Morgan

Chase can be liable for section 1640 damages if Debtor proves TILA violations apparent on the

face of the loan documents.


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However, because of the issue of standing and jurisdiction, the Court should not reach the

merits of the various TILA violations alleged by Debtor.

D. THE P&A IS OT A BAR TO ORIGIATIO DEFESES OF BORROWERSThe former Trustee has argued that all borrowers defenses against JP Morgan Chase

arising from the origination of the loans by WaMu, including the TILA defenses are barred

pursuant to section 2.5 of the P&A. Put another way, this argument contends that the contract

between JP Morgan Chase and the FDIC has the ability to impair the rights of third-parties. This

argument, of course runs contrary to basic contract law.

Moreover, FDIC cannot create protections for assuming banks beyond the protections that

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

abrogated federal holder in due course common law, similarly the FDIC has no authority to limit

the defenses available to borrowers beyond the limits set forth in FIRREA. There simply is no

authority for the FDIC to create ad hoc protections for assuming banks that go beyond the scope of

existing law, and how much more so, since Congress has preempted this area with the enactment

of FIRREA.

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

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

specific legal authority to do so.

However, Congress has expressly refrained from giving the FDIC powers that would

abrogate extant law. In the Federal Deposit Insurance Act, 12 U.S.C. 1819, the FDIC is

prevented from exercising any powers that are inconsistent with law.3 Thus, FDIC has no ability

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


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to deny borrowers their rights under either the UCC, TILA or any other source of legal redress

they may have available to them. To say that the FDIC via the P&A abolished the legal rights of

borrowers by fiat is contrary to the clear language of the Federal Deposit Insurance Act.

Accordingly, the P&A cannot be used as a bar against borrowers defenses. At most the

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

putting assets back on the FDIC or seeking indemnification from FDIC for recoupment claims of

borrowers.

Therefore, in this case as the issues are presented, the Court should hold that JP Morgan

Chase can be liable for section 1640 damages if Debtor proves TILA violations apparent on the

face of the loan documents, notwithstanding the language contained in section 2.5 of the P&A.

However, because of the issue of standing and jurisdiction, the Court should not reach the

merits of the various TILA violations alleged by Debtor.

COCLUSIO

WHEREFORE, based upon the foregoing, the Debtor, Lenny Kyle Dykstra respectfully

submits that the court should rule that JP Morgan Chase has failed to satisfy the procedural

requirements of federal law in bringing its claim. These requirements include establishing

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

Corporate powers

(a) IN GENERAL.--Upon the date of enactment of the Banking Act of 1933, the Corporation shallbecome a body corporate and as such shall have power--

Sixth. To prescribe, by its Board of Directors, bylaws not inconsistent with law, regulatingthe manner in which its general business may be conducted, and the privileges granted to itby law may be exercised and enjoyed.Seventh. To exercise by its Board of Directors, or duly authorized officers or agents, allpowers specifically granted by the provisions of this chapter, and such incidental powers asshall be necessary to carry out the powers so granted.


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Court should award sanctions and Debtors counsel fees and cost in opposing this motion, and

such other and further relief as the Court deems just and proper.

DATED: September 7, 2010 THE MORTER LAW OFFICE, PC

By:__________________________Moshe MortnerAttorney for Debtor


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DECLARATIO OF MOSHE MORTER

I, Moshe Mortner, declare and state as follows:

1. I am counsel for Lenny Kyle Dykstra (Debtor) (as of this writingpro hac viceapplicationsub judice). I have personal knowledge of the facts set forth herein and could, if called

as a witness, competently testify thereto.

2. I make this Declaration in opposition to the former trustees Motion for an orderapproving a settlement with JP Morgan Chase.

3. I have read and I am aware of the contents of the Motion and the accompanyingStatement of Facts and Memorandum of Legal Authorities. The facts stated in the Motion and the

points and authorities are true to the best of my knowledge.

4. A copy of JP Morgan Chases Proof of Claim for Claim No. 21-1 is annexed heretoas Exhibit A.

5. A copy of JP Morgan Chases Proof of Claim for Claim No. 43-1 is annexed heretoas Exhibit B.

6. A copy of Mr. Neales August 13,2010 response to the Courts discovery order isannexed as Exhibit C.

7. A copy of Mr. Neales August 20th supplemental response to the Courts discoveryorder is annexed as Exhibit D.

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

9. A copy of the email thread evidencing JP Morgan Chases refusal or inability toproduce the original note is attached as Exhibit F.

10. A copy of the true original Note, bearing the special indorsement, which wasfinally produced on August 25, 2010, is annexed as Exhibit G.


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11. A copy of the Purchase and Assumption Agreement annexed is as Exhibit H.12. For all of the foregoing reasons set forth in the attached Memorandum, I believe

that JP Morgan Chase lacks standing to appear as a creditor in this case.

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

foregoing is true and correct.

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

________________________Moshe Mortner


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PROOF OF SERVICE

I, Dorothy Van Kalsbeek, declare:

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

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

DEBTORS MOTION UNDER 11 U.S.C. 701(a) FOR VOLUNTARY DISMISSAL OFBANKRUPTCY

[ ] E-mail: By transmitting said document(s) via e-mail before 5:00 p.m. on this date

to the e-mail address(es) set forth below. The transmission was reported as complete and

without error.

[ ] Facsimile: By transmitting said document(s) via facsimile before 5:00 p.m. on

this date to the fax number(s) set forth below. The transmission was reported as complete and

without error.

[X] By Mail: By placing said document(s) in a sealed envelope, with postage thereon

fully prepaid, addressed as set forth below, and on this date depositing said envelope in the

United States mail at Los Angeles County, California. I am aware that on motion of the party

served, service by mail is presumed invalid if postal cancellation date or postage meter date is

more than one day after the date of deposit for mailing as set forth herein.

See Attached List

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 wasexecuted on September 7, 2010, at Los Angeles, California.

__________________________


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PROOF OF SERVICE ISTRUCTIOS

Serve by first class mail:

Hon. Geraldine Mund

United States Bankruptcy Court - Central District of California

21041 Burbank Boulevard, Suite 342

Woodland Hills, CA 91367

S. Margaux Ross

Atty for US Trustee21051 Warner Center Ln. #115Woodland Hills, CA 91367

M. Jonathan Hayes9700 Reseda Blvd. Suite 201Northridge, CA 91324

Arturo Cisneros2112 Business Center Drive2nd Floor

Irvine, CA 92612

Leonard M. ShulmanRobert E. HuttenhoffShulman Hodges & Bastian LLP26632 Towne Center Dr. Suite 300Foothill Ranch, CA 92610

Evan B SorensenTressler, Soderstrom, Maloney & Priess3070 Bristol Street, Suite 450

Costa Mesa, CA 92626

David NealeJP FritzLevene, Neale, Bender, Rankin & Brill

LLP10250 Constellation Blvd, Suite 1700Los Angeles, CA 90067

I. Bruce SpeiserPircher, Nichols & Meeks1925 Canterbury Park East, Suite 1700Los Angeles, CA 90067

Richard P Towne3625 Thousand Oaks Blvd Ste 267Westlake Village, CA 91362

David Vigliano405 Park Avenue, Ste. 1700

New York, NY 10022

K & L Gates10100 Santa Monica Blvd., 7th FloorLos Angeles, CA 90067

O'Melveny & Myersc/o Daniel Petrocelli1999 Ave of the StarsLos Angeles, CA 90067

Sherwood Country Club320 W. Stafford RoadWestlake Village, CA 91361


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, 3205(a)

memo no standing

Documents