plaintiff statement of objections / request for order to qls msj

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PERRY v. JPMorgan Chase et al Case # MSC10-02914

Page 1 Statement of Objections to FNMA / JPM Motion for Summary Judgment / Adjudication

Leighton Lee Perry 6724 Waverly Road Martinez, Ca 94553 Phone (925) 949-8377 Email: [email protected]

Plaintiff Pro Se

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

LEIGHTON LEE PERRY,

Plaintiff,

vs.

JP MORGAN CHASE BANK N.A.; CHASE HOME FINANCE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP.; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1-100, Inclusive,

Defendant.

Case No. MSC10-02914

STATEMENT OF OBJECTIONS AND REQUEST FOR DECISION IN OPPOSITION TO QUALITY LOAN SERVICE CORPS MOTION FOR SUMMARY JUDGEMENT TO FIRST AMENDED COMPLAINT

Judge: Hon. Laurel S. Brady Dept: 31 Date: May 23, 2013 9:00 a.m.

Plaintiff Leighton Lee Perry makes the following objections in opposition to statements, issues,

and defenses presented in this Motion for Summary Judgment by Defendant Quality Loan Service Corp.

(QLS). Plaintiff further requests the Court to issue a decision on these objections with its decision on

the Motion for Summary Judgment.

EVIDENCIARY OBJECTIONS

A. Objections to Defendants Request for Judicial Notice in Support of Motion For Summary Judgment to the First Amended Complaint 1.) All Exhibits: In general the court does not take judicial notice of [contestable] factual matters

stated within the documents of which judicial notice is requested. See Poseidon Development, Inc. v.

Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117.

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2.) Exh. A; Deed of Trust: Illegible. Terms of loan in 19 are not distinct.

3.) Exh. B; Assignment of Deed of Trust: foundation, hearsay. The Notarys commission expired

in 1990, but the document was filed in 1991. Furthermore, the constructive date of such assignments is

the date filed for recording [Cal Civ Code 2934]. Backdating and presenting such documents is felony

false filing, offering false evidence, and perjury [Cal. Penal Code 115.5, 132, 118].

4.) Exh. B; Assignment of Deed of Trust: Important details have been obliterated by the image

manipulation of the original document presented as a copy (e.g. Pool # 066627, loans on Attachment

A). Document makes no direct reference to the Subject Loan or Subject Property. No amount greater

than zero was stated as consideration.

5.) Exh. D; Assignment of Deed of Trust: lack of personal knowledge - document is signed by Tim

Bargenquast, AVP of McCarthy & Holthus, an employee of Defendant Quality Loan Service Corp

[Admission #14 of QLS in RFA SET ONE] and no agency relationship exists between the two

companies. Judicial notice cannot be taken of the legal effect of a legally operative document (like the

assignment of the deed of trust, because the vitality of the assignment was reasonably subject to dispute

without independent proof that the party assigning the interest had the authority to do so. Herrera v.

Deutsche Bank National Trust Co. (2011), 196 Cal.App.4th at p. 1375

6.) Exh. E; Notice of Default: does not conform to the terms on the Deed of Trust [Exh. A 19 ln7 et

seq]. Document makes no direct reference to the recorded beneficiary or Trustee; false filing [Penal

Code 115.5]: Power of sale solely retained by Trustee for deed of trust loans per Stockwell so question

arises if agent for beneficiary can file the NoD under Cal Civ. Code 2924. QLS indicates both an

investor and beneficiary claimed right to receive payments when Notice was filed. [Perry Decl

Exhibit B] Furthermore, if JP Morgan was ever the beneficiary it was not executed and recorded until

two months later, yet the document is claimed to be signed by an agent of the (unnamed) Beneficiary

that requested another agent (LSI Title) to actually record it by an unnamed squiggle.

B. Objections to Declaration of Charles E. Bell, Esq., In Support of Motion for Summary Judgment to the First Amended Complaint

Mr. Bells declaration contains alleged facts which are false and irrelevant. Mr. Bell is not a fact

witness; he is counsel for JPMorgan and FNMA. Therefore, he has no basis to testify as a fact witness or

to declare ultimate facts, conclusions of law or legal contentions. Schaelter v. Manufacturers Bank, 104

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Cal. App. 3d 70,76 (1980); Snider v. Snider, 200 Cal. App. 2d 741,751 (1962). Statements concerning

matters not within the personal knowledge of the declarant are not admissible. S & H Ins. Co. v.

California State AutoAss'n, 139 Cal. App. 3d 509,514 (1983). Furthermore, case law is clear that

declarations by counsel regarding facts of the case are inadmissible.

7.) Bell Decl 3 counsel for Chase and FNMA presented Plaintiff with documents that he

identified as the original note: Lacking authentication, [Cal. Evid. Code 1400], foundation, hearsay.

Deposition does not indicate the documents that were presented were authenticated original loan

documents for the Subject Loan. There was no certification or authentication of the document presented

to Plaintiff at the deposition. Document was introduced in deposition as an adjustable rate note (see

Chavez Declaration in Support of MSJ to FAC by JPMorgan and FNMA Exhibit 1 Pg 16 ln 2)

8.) Bell Decl 3 Plaintiff testified that the signatures appeared to be his: Foundation,

irrelevant. Misleading conclusion by sentence fragment selection contradicted by previous portion of

sentence. Relevant portion of sentence states I wouldnt swear that that is not a copy . (see

Chavez Declaration Exhibit 1 Pg 16 ln 12)

9.) Bell Decl Exhibit 2: Copy of note taken at deposition does not show endorsements on back of

last page. Relevance, authentication.

C. Motion for Summary Judgment to the First Amended Complaint: Memorandum of Points and Authorities 10.) Pg 2 ln 8 VALLEY executed an Assignment of Deed of Trust to Defendant FNMA:

Hearsay (Evid. Code, 1200); lack of personal knowledge (Evid. Code, 702(a)). See objections to

Request for Judicial Notice above 2 - 4

11.) Pg 2 ln 18 23 an Assignment of Deed of Trust was executed by FNMA: hearsay,

inadmissible legal conclusion.

12.) Pg 6 ln 3: Said Assignment transferred all beneficial interest together with the Promissory

Note to JPMORGAN Inadmissible legal conclusion (Evid. Code, 1200); Stockwell decision

renders moot the presumption that all assignments are recorded for deed of trust loans. No

documentation was produced by any Defendant that FNMA either sold the beneficiary interest, or

JPMORGAN paid any amount greater than zero for the Subject Loan. No documentation was produced

by any Defendant ever transferred custody or a Bailee Letter in its stead, for the promissory note for the

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Subject Loan.

13.) Pg 3 ln 6: was executed by the agent for the beneficiary Inadmissible legal conclusion. At the

time of the non-judicial referral to QLS both an investor and a beneficiary were identified with

rights to the proceeds of Plaintiffs loan payments. [Perry Decl 6 Exh E]

14.) Pg 6 ln 3: after being presented with the original note and deed of trust Lack of proper

authentication (Evid. Code, 1200); lack of personal knowledge (Evid. Code, 702(a); foundation.

D. The Courts Interference in Admitting or Denying Discovery Responses

The preceding objections are provisional on the Courts delayed decision on 4 discovery motions

made by Plaintiff that were originally heard on Feb. 28, 2013, where it was ordered into facilitation, and

heard again on April 18, 2013. Although the docket shows a certificate of a mailing by the clerk of the

Court on April 26, it has not been received as of this pleading being filed. The court appears to have

mailed it so its arrival would coincide with the deadline for Plaintiff to file oppositions to 2 motions for

summary judgments.

Respectfully submitted,

Dated: May 2, 2013 ___________________LEIGHTON LEE PERRY

Plaintiff pro se

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Perry v JP Morgan Chase et al CASE NUMBER: MSC10-02914

PAGE 1 OF 7 Order on Objections by Plaintiff in Opposition to MSJ of FNMA / JP Morgan

Leighton Lee Perry 6724 Waverly Road Martinez, Ca 94553 Phone (925) 949-8377 Email: [email protected] Plaintiff Pro Se

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

LEIGHTON LEE PERRY,

Plaintiff,

vs.

JP MORGAN CHASE BANK N.A.; CHASE HOME FINANCE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP.; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1-100, Inclusive,

Defendant.

Case No. MSC10-02914

(PROPOSED) ORDER ON OBJECTIONS BY PLAINTIFF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY JPMORGAN CHASE BANK NA IN ITSELF AND AS SUCCESSOR BY MERGER TO CHASE HOME FINANCE LLC AND FEDERAL NATIONAL MORTGAGE ASSOCIATION

Judge: Hon. Laurel S. Brady Dept: 31 Date: 9:00 a.m.

(Proposed) ORDER ON OBJECTIONS

Defendants Request for Judicial Notice in Support of Motion For Summary Judgment to the First Amended Complaint

1.) All Exhibits: In general the court does not take judicial notice of [contestable] factual

matters stated within the documents of which judicial notice is requested. See Poseidon Development,

Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117.

Sustained: _________ Overruled:_________

2.) Exh. A: Deed of Trust: Illegible. Terms of loan in 19 are not distinct.


3.) Exh. B; Assignment of Deed of Trust: foundation, hearsay, authentication. [Evidence

Code 700, 400-406, 1200, 1400-1401] The Notarys commission expired in 1990, but the document

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was filed in 1991. Furthermore, the constructive date of such assignments is the date filed for recording

[Cal Civ Code 2934]. Backdating and presenting such documents is felony false filing, offering false

evidence, and perjury [Cal. Penal Code 115.5, 132, 118].


4.) Exh. B Assignment of Deed of Trust: Important details have been obliterated by the

image manipulation of the original document presented as a copy (e.g. Pool # 066627, loans on

Attachment A).


5.) Exh. D Notice of Default: Foundation. Does not conform to the terms on the Deed of

Trust (see Exh. B 19 ln7 et seq) [Evidence Code 700, 400-406]. Document makes no direct reference

to the recorded beneficiary or Trustee; false filing [Penal Code 115.5]


6.) Exh. D; Assignment of Deed of Trust: lack of personal knowledge [Evid. Code, 702].


Declaration of Charles Bell In Support of Motion for Summary Judgment to the First Amended Complaint

7.) Bell Decl 3 counsel for Chase and FNMA presented Plaintiff with documents that

he identified as the original note: Foundation, Inadmissible hearsay, lack of personal

knowledge, authentication. [Evid. Code 700, 400-406, 1200, 702, 1400]


8.) Bell Decl 3 Plaintiff testified that the signatures appeared to be his: Foundation,

Inadmissible hearsay, lack of personal knowledge, authentication. [Evid. Code 700, 400-406,

1200, 702, 1400]


9.) Bell Decl Exhibit 2: Copy of note taken at deposition does not show endorsements on

back of last page. Foundation, authentication. [Evid. Code 700, 400-406, 702, 1400-1401]


Motion for Summary Judgment to the First Amended Complaint: Memorandum of Points and Authorities

10.) Pg 2 ln 8 VALLEY executed an Assignment of Deed of Trust to Defendant

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FNMA: Hearsay, conclusion [Evid. Code, 1200, 800, 803].


11.) Pg 2 ln 18 23 an Assignment of Deed of Trust was executed by FNMA: Hearsay,

inadmissible legal conclusion; [Evid. Code, 1200, 800, 803].


12.) Pg 6 ln 3: Said Assignment transferred all beneficial interest together with the

Promissory Note to JPMORGAN: Inadmissible legal conclusion, authentication [Evid.

Code, 800, 803, 1400-1401].


13.) Pg 3 ln 6: was executed by the agent for the beneficiary: Foundation, Inadmissible

legal conclusion. [Evid. Code, 700, 400-406, 800, 803].


14.) Pg 6 ln 3: after being presented with the original note and deed of trust

Authentication, speculation [Evid. Code, 1400-1401, 800, 803].


Date: ______________________ _______________________________ Judge

plaintiff statement of objections / request for order to qls msj

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