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Robert P. Goe - State Bar No. 137019 Elizabeth A. LaRocque State Bar No. 219977 GOE & FORSYTHE, LLP 18101 Von Karman Avenue, Suite 510 Irvine, California 92612 rgoe@goeforlaw.com elarocque@goeforlaw.com Telephone: (949) 798-2460 Facsimile: (949) 955-9437 Attorneys for Debtor

UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION

In re TRUDY KALUSH, an individual,

Case No. 8:11-bk-19563-ES Chapter 11 Proceeding DEBTORS OPPOSITION TO MOTION BY DEUTSCHE BANK TO RECONSIDER ORDER SUSTAINING OBJECTION TO CLAIM NO. 6.; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ROBERT P. GOE IN SUPPORT THEREOF Hearing: Date: April 5, 2012 Time: 10:30 a.m. Ctrm: 5A

Debtor and Debtor-inPossession.

TO THE HONORABLE ERITHE SMITH, UNITED STATES BANKRUPTCY JUDGE, AND THE UNITED STATES TRUSTEE:

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Trudy Kalush, Debtor and Debtor-in-Possession herein (Debtor), hereby files her Opposition to the Motion to Reconsider Order Sustaining Objection to Claim No. 6 (Claim No. 6) (the Motion) filed by Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2005-AR12, Mortgage Pass-Through Certificates, Series 2005-AR12 under the Pooling and Servicing Agreement dated June 1, 2005 (Deutsche Bank). First and foremost, Deutsche Banks counsel should be sanctioned pursuant to a separately filed motion for their outright fraud on the Court. What Deutsche Bank fails to tell the Court is that Michael B. Shaw is a Texas attorney that signed Claim No. 6 as Creditors Authorized Agent and at the time he signed Claim No. 6 he worked for the Brice Firm (as defined below). The Brice Firm is the same firm filing the Motion and never once informs the Court of this fact, nor does it attach a declaration of Mr. Shaw, who was sent letters, discovery pleadings, etc. Typical games of disputed lenders, and no facts or law is presented to support the Motion. Rather, it appears Deutsche Bank has claims against its counsel, which is of no concern to Debtor or the Court. Debtors Opposition is based upon this Opposition to Motion; Memorandum of Points

15 and Authorities, Declaration of Robert P. Goe (Goe Declaration) and exhibits attached 16 thereto and in support thereof, the records on file herein, and such other evidence and oral 17 18 19 20 21 22 23 24 25 26 27 28
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argument as may be presented at the hearing on this Motion. The Motion should be denied for the following reasons: 1. Reconsideration under Federal Rule of Bankruptcy Procedure (FRBP) 60(b)(4) is not appropriate as service of the Objection to Claim No. 6 (Objection to Claim) was proper, thus the Order sustaining the Objection to Claim No. 6 is not void. 2. Reconsideration is not appropriate under the excusable neglect analysis as Deutsche Bank, OneWest Bank FSB (OneWest) (Deutsche Banks agent) and National Bankruptcy Services, LLC (NBS) (in house bankruptcy servicer) are all represented by the law firm of Brice, Vander Linden & Wernichk, PC (the Brice

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Firm) or attorneys employed by the Brice Firm. NBS is actually located in the same office as the Brice Firm office. Thus, service on Michael Shaw at the Brice Firm, an attorney at the Brice Firm during the relevant time period, provided notice to Deutsche Bank and OneWest, and NBS. As stated, Deutsche Bank and/or its attorneys are lying about the relationship between the Brice Firm, Michael Shaw, and Mark D. Estle, who, during the relevant time period, all worked together at the Brice Firm. 3. The record does not show any appearance [of counsel] for OneWest, or agency documents for OneWest to have proper standing to speak for Deutsche Bank. 4. Deutsche Bank still has not demonstrated that it holds a valid lien to the real property located at 16625 S. Pacific Coast Highway, Sunset Beach, CA 90742 (the Property), thus the Order sustaining the Objection to Claim No. 6 was proper. Based upon the above, the Motion should be denied. PLEASE TAKE NOTICE THAT, ACCORDING TO LOCAL BANKRUPTCY RULE 9013-1(f)(1), ANY REPLY TO THIS OPPOSITION SHALL BE FILED WITH THE COURT AND SERVED ON OPPOSING COUNSEL NOT LATER THAN SEVEN (7) CALENDAR DAYS (NOT EXCLUDING SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS) PRIOR TO THE HEARING ON THE MOTION.

Dated: March 22, 2012 20 21 22 23 24 25 26 27 28

Respectfully Submitted by GOE & FORSYTHE, LLP

By: /s/Robert P. Goe______________________ Robert P. Goe Attorneys for Debtor and Debtor-inPossession

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MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS 1. On July 7, 2011, the Debtor filed for protection under Chapter 11 of the

Bankruptcy Code. 2. Deutsche Bank through its attorney Agent Michael B. Shaw, an attorney at the

Brice Firm, and a licensed Texas attorney, filed Claim No. 6 on August 2, 2011. A true and correct copy of Claim No. 6 is attached to the Goe Declaration as Exhibit 1. 3. Claim No. 6 indicates that OneWest is the entity on whom notices should be

served for Deutsche Bank. 4. Claim No. 6 further provides that Michael B. Shaw is Deutsche Banks

Authorized Agent. The address provided for Michael B. Shaw is PO Box 829009, Dallas Texas 75382. 5. Deutsche Bank included with Claim No. 6 a copy of the promissory note with a

certification stamp on the note that it is the true and correct copy. The copy was three (3) pages and included no endorsements [where room was available] or allonge, and no explanation why Deutsche Bank had any interest. A copy of the original Deed of Trust included the failed Commercial Capital Bank, FSB. No assignments were provided. See Exhibit 1. In support of its Motion, Deutsche Bank alleges newly discovered evidence which is false as no documents would have existed prior to Claim No. 6 being filed. 6. On November 8, 2011, Debtor sent a letter to Deutsche Bank c/o OneWest, to

the attention of Michael Shaw, requesting documents reflecting Standing for Deutsche Bank to file its POC. Deutsche Bank did not respond. A true and correct copy of the November 8, 2011 letter is attached to the Goe Declaration as Exhibit 2. 7. On November 23, 2011, the Debtor filed an objection to Claim No. 6, and a

Notice of the objection to claim. The Objection to Claim and the Notice of Objection to Claim was served on Deutsche Banks authorized agent and attorney at the Brice Firm, Michael B. Shaw, at the address provided on Claim No. 6. They were also served on

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OneWest Bank at the address provided in Claim No. 6. True and correct copies of the Objection to Claim and Notice of Objection to Claim are attached to the Goe Declaration as Exhibit 3. 8. On November 29, 2011, Debtor sent requests for production of Documents to

both OneWest Bank, the purported agent of Deutsche Bank, and to Deutsche Bank at the two addresses supplied on Claim No. 6. True and correct copies of the Debtors Request for Production of Documents on OneWest and Deutsche Bank are attached to the Goe Declaration as Exhibits 4 and 5, respectively. No responses were provided. 9. The address for the servicing of Deutsche Bank's Agent Michael B. Shaw

[attorney for the Brice Firm] is P. O. Box 829009 Dallas, Texas 75382-9009. Courtesy Notice was sent to OneWest Bank at the address supplied on Claim No. 6. 10. On January 17, 2012, the motion was heard, and an order was entered

sustaining Debtor's Objection to Deutsche Bank's Claim No. 6, based on the documents submitted to the Court for this matter. 11. Deutsche Bank, OneWest (Deutsche Banks agent) and NBS (in house

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bankruptcy servicer) are all represented by or associated with the Brice Firm or attorneys employed by the Brice Firm. NBS is actually located in the same office as the Brice Firm office. Thus, service on Michael Shaw at the Brice Firm, an attorney at the Brice Firm during the relevant time period, provided notice to Deutsche Bank and OneWest, and NBS. Deutsche Bank and/or its attorneys are not being forthcoming about the relationship between the Brice Firm, Michael Shaw, and Mark D. Estle, who, during the relevant time period, all worked \ together at the Brice Firm. 12. Michael Shaw was employed by the Brice Firm at the time he filed Claim No.

6. A true and correct copy of Michael Shaws LinkedIn account (www.linkedin.com/pub/michael-shaw/17/569/8bb), his professional information from the State Bar of Texas, and his lawyer profile in the Dallas, Texas legaldirectories.com are

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attached to the Goe Declaration as Exhibit 6. The information on Mr. Shaw indicates that he worked at the Brice Firm from January 2011 March 2012, and that his business address was 9441 LBJ Fwy., Ste. 250, Dallas TX 75243, which is the same address as the Brice Firm. 13. NBSs executive team consists of its Chief Executive Officer, Larry J.

Buckley, who is also the President of the Brice Firm. NBSs Chairman is Lance Vander Linden, who indicates that he has been involved with both NBS and the Brice Firm and has been instrumental in their recognition in the management and administration of bankruptcy portfolios and legal representation of secured creditors in bankruptcy. A true and correct copy of NBS website for its Executive Team (www.nbsdefaultservices.com/why-nbs/executive) is attached to the Goe Declaration as Exhibit 7.

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The Brice Firm is located at 9441 LBJ Freeway, Suite 250 Dallas, Texas

75243. The Brice Firm's in house back office processing unit is called National Bankruptcy Services, LLC ("NBS") and it is located at 9441 LBJ Freeway, Suite 250 Dallas, Texas 75243. See Exhibits 6 and 7. 15. Mark Estle, of the Estle Law Firm, who brought the instant Motion indicated in

a March 5, 2012 email to Mr. Goe that his office was just retained when his client discovered that they failed to respond to the Objection to Claim. A true and correct copy of Mr. Estles March 5, 2012, email to Mr. Goe is attached to the Goe Declaration as Exhibit 8. 16. On March 16, 2012, Mr. Estle wrote Mr. Goe a letter indicating that OneWest

is the creditor (not Deutsche Bank). Mr. Estles letter was on the Brice Firms letter head. A true and correct copy of Mr. Estles March 16, 2012 letter is attached to the Goe Declaration as Exhibit 9. 17. In a very similar case in the United States Bankruptcy Court for the Southern

District of New York, In re: Virginia Obasi [Case No. 10-10494], the Brice Firm was investigated by the U.S. Trustee by way of deposition and discovery for its filing of Proofs of Claims. On December 19, 2011, the Court in Opinion and Order made several findings regarding the Brice Firm. A true and correct copy of the Obasi Court Opinion is attached to

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the Goe Declaration as Exhibit 10. The New York Court found that the Brice Firm violated Bankruptcy Rule 9011. 18. In the Obasi case, the Brice Firm submitted a claim on behalf of Deutsche

Bank as the creditor's agent. Obasi objected. The Brice Firm's explained that the firm was an employee of the Servicing Agent and that the Servicing Agent was authorized to execute the claim on behalf of Deutsche Bank. The Trustee deposed the Brice Firm's employee on two occasions. The attorney employee testified that, in addition to practicing law with the Brice Firm and being employed by the Servicer, he was also part-owner and vice president of NBS, which provided paralegal and other support services to the Brice Firm. He further stated that the internal procedures at the Brice Firm provides that NBS prepare proofs of claim, which were then submitted to the Brice Firm for review by an attorney at or near the time of filing (See Exhibit 10, Order page 3), and outlined the review that this creditor's agent does in routinely filing proofs of claims (See Exhibit 10, Order page 4). The Brice Firm acknowledged that "assistance" was provided by NBS pursuant to an agreement with the Firm

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to provide "certain back office services.1 II. ARUGMENT A. Reconsideration Under Federal Rule of Bankruptcy Procedure 60(b)(4) is Not Appropriate as Service of The Objection to Claim No. 6 Was Proper. OneWest Bank is not the creditor, so any claim as to defective service on OneWest is not needed. Further, the Brice Firm's argument fails as the Objection to Claim was served on Deutsche Bank at the Brice Firm with a courtesy copy to the OneWest address supplied on Claim No. 6. In order to contest a proof of claim or interest, FRBP 3007 requires that the

Indeed, internal procedures testified by the employee of the Brice Firm provided for NBS to prepare the proofs of claims, which were then submitted to the Brice Firm for review by an attorney at or near the time of the filing. The case has a full docket of testimony as to the practices of the Brice Firm and their arrangements with NBS.

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objection be in writing, and be filed and served on the creditor thirty (30) days prior to the hearing date set for such objection. In re Ausilio, 2010 WL 55507 at *5. See also In re Shekerjian, 2010 WL 1417782 (E.D. Mich. 2010). In the Ninth Circuit Bankruptcy Appellate Panel case of Suzanne Jorgenson v. State Line Hotel, Inc. (In re State Line Hotel Inc.), 323 B.R. 703 (9th Cir.BAP 2005), the Court directly decided the issue of whether an objection to claim has to be served in compliance with FRBP 9014, which requires service under FRBP 7004, or if it can be mailed and served pursuant to FRBP 3007. The BAP held that FRBP 9014 defers to FRBP 3007 on the subject of claims objections and authorizes notice rather than service. Id. at 713. The BAP made the following finding in the Joregenson case: Rule 9014(b) requires service of any motion required by Rule 9014(a) to meet Rule 7004's requirements, and Rule 9014(a) applies only to contested matters "not otherwise governed by these rules." As noted in In re Hejl, 85 B.R. 399, 400 (Bankr. W.D. Tex. 1988), a claim objection is otherwise governed: Rule 3007 calls for its initiation by mailing (or otherwise [**20] delivering) a copy of the objection with a notice of hearing to the claimant. See also In re Metro Transp. Co., 117 B.R. 143, 146 (Bankr. E.D. Penn. 1990) (holding that since a motion to determine claim priority is "otherwise governed" [*712] by Rules 3007 and 7001(2), Rule 9014 is inapplicable). Id. at 711 The Objection to Claim was properly served by mail on Deutsche Banks designated agent and attorney, Michael Shaw of the Brice Firm, and to a location that Deutsche Bank requested notice on Claim No. 6, which was to OneWest at the address provided on Claim No. 6. The Brice Firm misleads again when it suggests that the Debtor did not serve OneWest in Pasadena because they are insured by the FDIC, and again they are wrong. OneWest does not have standing to require such service and in Jorgenson the Court found that claim objections may be served to the address on the Form B10.

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Again, it is undisputed that a licensed attorneys unbelievable excuse was that it was an error by the servicing agent, NBS. However, NBS is the Brice Firms in house back office agent, and again the Brice Firm is wrong. B. Reconsideration Is Not Appropriate Under The Excusable Neglect Analysis. The Brice Firms argument of excusable neglect is not valid. The Brice Firm attorney Michael B. Shaw signed Deutsche Banks Claim No. 6 as its authorized agent, and under the strict requirements. The Brice Firm made contact with Debtor's attorney; however, this was represented to be done by Mark D. Estle, the attorney for OneWest who originally stated he was new to the case and from his own law firm The Estle Law Firm. As we now know, he works for the Brice Firm. The Debtor refused to respond to OneWest represented by the Mark D. Estle. In fact it is inappropriate for the attorney of OneWest to contact the Debtor for Deutsche Bank. Deutsche Bank does not have a secured claim, and the Motion for reconsideration should fail. The Bankruptcy Code allows a court to reconsider an allowed or disallowed claim for

16 cause according to the equities of the case. 11 U.S.C. 502(j) [reconsideration of allowed 17 18 19 20 21 22 23 24 25 26 27 28
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claims] and FRBP 3008. In re Kara Homes, Inc., 2010 WL 2546018 (Bankr. D. N.J. 2010) (some cause for reconsideration must be articulated before FRBP 3008 is to be invoked); In re Morningstar, 433 B.R. 714 (Bankr. N.D. Ind. 2010) (although Rule 60(b) standards are appropriate for determining whether to reconsider a claim, before the court can consider the equities of the case, it must determine whether there is cause to reconsider). The court may decline to reconsider an order of allowance or disallowance without notice to any adverse party and without affording any hearing to the movant. If a motion to reconsider is granted, notice and hearing must be afforded to parties in interest before the previous action in the claim taken in respect to the claim may be vacated or modified.

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The standard for determining cause under Rule 60(b)(1) is an excusable neglect analysis. In re Journal Register Company, 2010 WL 5376278 (Bankr. S.D.N.Y. 2010) (excusable neglect exists in the context of a Rule 60(b) motion, and the factors to be considered are (a) whether the failure to respond was willful, (b) the existence of a meritorious defense, and (c) the degree of prejudice that the Movant would suffer if the court granted the motion); In re Coxeter, 2009 WL 4893170 (Bankr. N.D.N.Y 2009) (the excusable neglect standard is slightly different than that articulated by the Supreme Court in Pioneer). Subsequent authorities, while applying the Court's analytical framework, have recognized that the facts of Pioneer are not indicative of the typical chapter 11 case. See, e.g., In re Keene Corp., 188 B.R. at 907, 909 ("In most chapter 11 cases, the bar date notice is clear and unambiguous. This necessarily entails a more searching inquiry of the factors surrounding the late filing than was required in Pioneer". In Pioneer, the bar date notice was included as a brief reference in the notice of a section 341(a) meeting of creditors. This was not the problem for the Brice Firm as Claim No. 6 was timely filed. The typical bar date notice in the typical chapter 11 case is unambiguous. Courts have

15 recognized that the sufficiency of notice is part of the excusable neglect inquiry. See 16 Manousoff v. Macy's Northeast, Inc. (In re R.H. Macy & Co., Inc.), 166 B.R. 799, 801 17 18 19 20 21 22 23 24 25 26 27 28
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(S.D.N.Y. 1994) (listing the quality of notice as part of the Pioneer factors); In re Alexander's Inc., 176 B.R. 715, 719-20 (Bankr. S.D.N.Y. 1995) (listing adequacy of notice as part of the Pioneer factors); In re Hills Stores Co., 167 B.R. 348, 351 (Bankr. S.D.N.Y. 1994) (same); see also 10 ALANN. RESNICK & HENRY J. SOMMER, COLLIER ON BANKRUPTCY & 9006.06[3] (15th ed. rev. 2002). The [Supreme] Court in Pioneer was careful to point out that it gave little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date. A motion for reconsideration is not recognized in the Federal rules of Civil Procedure. See Captain Blythers, Inc. v. Thompson (In re Captain Blythers, Inc.), 311 B.R. 530, 539 (B.A.P. 9th Cir. 2004). Rather, the rules recognize two types of motion to obtain

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post-judgment relief: a motion to alter or amend judgment, Fed. R. Civ. P. 59(e), and a motion for relief from judgment, Fed. R. Civ. P. 60. These rules are made applicable to bankruptcy cases by FRBP 9023 and 9024, respectively. In re Walker, 332 B.R. 820, (Bankr. D. Nev. 2005) (citing Fed. R. Bankr. P. 9023 & 9024). The Ninth Circuit construes a motion for reconsideration as a motion to vacate a judgment under Rule 59(e) if the motion is filed within 14 days of entry of the order. See, e.g., Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). The proper avenue for an allegedly aggrieved party to take when faced with an adverse ruling is an appeal to a higher court, not a motion for reconsideration. See Fulani v. Brady, 149 F.R.D. 501 (S.D.N.Y. 1993) ([T]he court must not allow a party to use the motion to reargue as a substitute for appealing from a final judgment.). For this reason, courts rarely grant motions for reconsideration. See 11 Charles Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure 2810.1 (2d ed. 1995) (In practice, because of the narrow purposes for which they are intended, Rule 59(e) motions typically are denied.). Under the Courts local rules (which the Motion fails to cite), a motion for

15 reconsideration may be granted if the moving party can prove: (1) irregularity in the 16 proceedings; (2) an abuse of discretion preventing a fair trial; (3) jury misconduct; (4) 17 18 19 20 21 22 23 24 25 26 27 28
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unavoidable accident or surprise; (5) material newly discovered evidence that could not reasonably have been discovered at the time of the hearing; (6) excessive or inadequate damages determined under the influence of prejudice or passion; (7) insufficiency of the evidence to justify the decision; or (8) errors of law. See LBR 9013-4. In short, a motion under Rule 59(e) is not an opportunity to re-argue a case. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Initial arguments are not to be treated as a dress rehearsal for a second attempt to prevail on the same matter. Counsel is . . . expected to get it right the first time and to present all the arguments which counsel believes support its position. In re JSJF Corp., 344 B.R. 94, 10304 (B.A.P. 9th Cir. 2006); see also Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir.

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2001) (holding that the court may disregard legal arguments made for the first time on a motion to amend, . . . and that a party that fails to introduce facts in a motion or opposition cannot introduce them later in a motion to amend . . . unless they were previously unavailable.); Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 899 (9th Cir. 2001) (affirming district courts denial of motion to reconsider where movants simply reargued their case.). The Brice Firm must show that there acts were excusable before considering the merits of the case. The record demonstrates that the acts are not excusable. There is no declaration from the authorized agent and Brice Firm attorney Michael Shaw stating why he failed to respond to (1) Debtors letter, (2) Debtors discovery, and (3) the Claim Objection. In the case at bar the Brice Firm is asking the Court to consider excusable neglect and uses the affidavit of the NBS employee [their back office employee] to make it appear to this Court that NBS is independent and hired by someone else, but in reality it was their back office support. (See Motion Page 6 to Page 7 and Exhibit 1) Both use the same address and

15 are controlled by the Brice Firm. 16 The Brice Firm adds a declaration of Suchan Murray [a OneWest employee]. Claim 17 18 19 20 21 22 23 24 25 26 27 28
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No. 6 was proffered by Deutsche Bank and not OneWest Bank. The Brice Firm, and not OneWest, is the agent. Ms. Murray has no personal knowledge of the purported Claimant Deutsche Bank Note and assignment (Motion Ex. 2). She has no knowledge of Deutsche Bank's interest in the property, and the record does not support her authority to speak for Deutsche Bank. This OneWest employee may speak for OneWest hiring NBS to handle the bankruptcy claim, but fails to attach any agreement or any agreement to which OneWest may act for Deutsche Bank. Interestingly, the Brice Firm, acting as Deutsche Bank's attorney, states that through OneWest the unrecorded assignment and the allonge to the purported note was retrieved [indicating that it wasn't in Deutsche Bank's possession]. It appears that there was

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no delivery of the purported note and assignments to the trust as required by the Pooling and Servicing Agreement ("PSA").2 1. The reason for the delay: The "reason for the delay" factor

incorporates the Pioneer Court's concern with sufficient notice. See U.K. Northridge, Inc. v. Au Coton, Inc. (In re Au Coton, Inc.), 171 B.R. 16, 18 (S.D.N.Y. 1994) ("Indeed, the Pioneer Court concluded that the neglect at issue there was excusable because the notice of the bar date was outside the ordinary course in bankruptcy cases: in that it was peculiarly and inconspicuously placed . . . in a notice regarding a creditors' meeting. The Court therefore found that the delay was not within the reasonable control of the delinquent creditors. The District Court ultimately concluded that disallowing a late-filed claim was within the bankruptcy courts discretion where it was simple carelessness that caused the filing of a tardy claim) (citations omitted)). Here the claim was timely filed by the attorney Michael B. Shaw working for the Brice Firm. Debtor argues that Deutsche Bank fails to articulate any reason for the delay in followup of its filed claim or the propounded discovery properly served. Courts recognize that the reason for the delay does not have to be outside the creditor's control. Deutsche Bank needs to explain the circumstances surrounding the delay in order to supply this Court with sufficient context to fully and adequately address this factor and the ultimate determination of whether the equities support the conclusion that neglect is excusable. Here, the Brice Firm with the help of NBS timely filed Claim No. 6 and has been counsel throughout the entire proceeding. Considering that notice was properly made and that Deutsche Bank has not otherwise provided an explanation regarding the circumstances of not responding after their entrance into the case, the Court should find that the "reason for the delay" factor heavily favors the Debtor.

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http://www.scribd.com/doc/85959755/IN05AC-PSA-20100301-O-3 Indymac INDX Trust 2005-AR12.

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2.

The danger of prejudice to the debtor: If the Court allows Deutsche

Bank to file a response and revisit a properly served objection to claim, the potential prejudice to Debtor is genuine. It appears that there are simply no distinguishing factors here that would differentiate Deutsche Bank from any other creditor that simply failed to respond to a bar date or in this case because of a mere oversight. Any deluge of motions seeking similar relief would prejudice the Debtor's reorganization process. The Court would reach the same conclusion even if the Court considered the fact that Debtor has no confirmed a plan of reorganization. Although courts have sometimes considered those issues, see Manousoff, 166 B.R. at 802, Deutsche Bank has failed to convince that considering the size of Deutsche Bank's purported claim at this stage of Debtors' case should tip the analysis in their favor. Therefore, this factor does not favor Deutsche Bank but favors Debtor instead. 3. The length of delay and its potential impact on judicial

proceedings: Debtor is pushing forward with plan confirmation and relying on the order disallowing Claim No. 6. 4. Whether the Movant acted in Good Faith: There is no indication in

the instant record that the Brice Firm as agent for the principal Deutsche Bank acted in good faith or is presently acting in good faith. In fact, the complete opposite is true. The Brice Firm is out-and-out lying to this Court. The introduction and the supportive information provided by the New York U.S. Trustee demonstrates that the Brice Firm violates bankruptcy rules. The acts and omissions are egregious and therefore, this factor favors Debtor. C. The Record Does Not Show Any Appearance [Of Counsel] For OneWest, Or Agency Documents For OneWest To Have Proper Standing To Speak For Deutsche Bank.

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("OneWest"), or agency documents for OneWest to have proper standing to speak for Movant Deutsche Bank. Debtor properly served her claim objection on Deutsche Bank.

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The Debtor's Objection challenged Deutsche Bank's status as a secured creditor, which was sustained by the Court. D. Deutsche Bank Still Has Not Demonstrated That It Holds Title To The Property Thus The Order Sustaining The Objection To Claim Was Proper. The Brice Firm's Motion conveniently uses others to speak for Deutsche Bank. The Movant does not speak for itself or offer any grant of authority to do so on its part. The Brice Firm originally proffered certified true and correct copies of the note. Surprisingly, the Brice Firm finds an unrecorded assignment and an allonge to the note [and not an endorsement on page 3 of the existing note where room exists]. At first look this belated unique find would appear to partially correct the invalid chain of title, but it doesn't. The chain of title is far from complete even if these new additions are considered. 3 The newly presented second assignment of the Deed of Trust from Indymac Federal Bank to Deutsche Bank dated March 29, 2011 as Orange County Instrument No. 2011000171094 [along with the note] is fatally impossible.4 One reason is that the Power of Attorney ("POA") granting the OneWest employee

16 power to act for the FDIC was ineffective. Second, the Debtor obtained information as to 17 18 19 20 21
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OneWest's interest by a Freedom Of Information Act ("FOIA") request from the FDIC in November 2011. True and correct copies of documents obtained by the FDIC are attached to the Goe Declaration as Exhibit 11. The FDIC timely replied and stated that only the

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Deutsche Bank's original Deed of Trust does not include Mortgage Electronic Registration Systems. Inc. ("MERS"). Therefore each assignment must be made one at a time and recorded [or in a recordable form]. Any note that is claimed to be negotiated as a holder [endorsed in blank note] must provide evidence to support their holder status. Such proof includes a complete chain of title and payments see: In re Kemp, 440 B.R. 624 (Bankr. D.N.J. 2010)(under New Jersey law, a bank cannot enforce a note as the holder of a note if it did not have possession of the note). The Debtor demanded such proof with the requests for production of documents. Deutsche Bank failed to timely respond or currently produce the documents properly requested and served for the contested Objection to the POC.

4 Proffered by OneWest employee Roger Stotts acting under a Power of Attorney ("POA") granted by the FDIC as part of the sale to OneWest Bank, however the second extension [and last] was granted up to June 10, 2010. The Assignment was proffered March 2011 when the POA was ineffective.

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servicing rights were sold by the FDIC to OneWest Bank [Indymac Bank did not sell the note, therefore the assignment could not include the note]. The Assignment is the only document that supports Deutsche Bank's Standing [and it is fatally flawed]. However, if this [void] assignment is accurate [and it is not] the Note [with the newly added allonge] should show additional endorsements: 1) from the Indymac to the FDIC; 2) from the FDIC to OneWest Bank; and then 3) from OneWest to Deutsche Bank. The PSA for the Indymac MBS is formed under New York laws and would cover the Trustee's requirements to create a trust over the note and deed of trust.5 This would require other additional endorsements and assignments of different intermediaries to account for the other true sales which are not disclosed. Certainly no assignment is allowed over 6 years after the MBS trust was closed. Thus, Deutsche Bank has not demonstrated it has title to the Property and the Motion should be denied. III. CONCLUSION Based upon the above, the Motion should be denied.

15 Dated: March 22, 2012 16 GOE & FORSYTHE, LLP 17 18 19 20 21 22 23 24 25 26

5

Respectfully submitted by:

By: /s/Robert P. Goe_____________________ Robert P. Goe, Attorneys for Debtor and Debtor-inPossession

27 28

http://www.scribd.com/doc/85959755/IN05AC-PSA-20100301-O-3 -PSA for Indymac INDX 2005-AR12.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Texas 75382. 15 5. 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF ROBERT P. GOE I, Robert P. Goe, declare and state: I am a partner in the law firm of Goe & Forsythe, LLP, attorneys for Debtor and Debtor-in-Possession, Trudy Kalush (Debtor). I have personal knowledge of the facts alleged herein and if called upon as a witness, I could and would competently testify thereto. 1. On July 7, 2011, the Debtor filed for protection under Chapter 11 of the

Bankruptcy Code. 2. Deutsche Bank through its attorney Agent Michael B. Shaw, an attorney at the

Brice Firm, and a licensed Texas attorney, filed Claim No. 6 on August 2, 2011. A true and correct copy of Claim No. 6 is attached hereto as Exhibit 1. 3. Claim No. 6 indicates that OneWest is the entity on whom notices should be

served for Deutsche Bank. 4. Claim No. 6 further provides that Michael B. Shaw is Deutsche Banks

Authorized Agent. The address provided for Michael B. Shaw is PO Box 829009, Dallas

Deutsche Bank included with Claim No. 6 a copy of the promissory note with a

certification stamp on the note that it is the true and correct copy. The copy was three (3) pages and included no endorsements [where room was available] or allonge, and no explanation why Deutsche Bank had any interest. A copy of the original Deed of Trust included the failed Commercial Capital Bank, FSB. No assignments were provided. See Exhibit 1. In support of its Motion, Deutsche Bank alleges newly discovered evidence which is false as no documents would have existed prior to Claim No. 6 being filed. 6. On November 8, 2011, Debtor sent a letter to Deutsche Bank c/o OneWest, to

the attention of Michael Shaw, requesting documents reflecting Standing for Deutsche Bank to file its POC. Deutsche Bank did not respond. A true and correct copy of the November 8, 2011 letter is attached hereto as Exhibit 2.

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7.

On November 23, 2011, the Debtor filed an objection to Claim No. 6, and a

Notice of the objection to claim. The Objection to Claim and the Notice of Objection to Claim was served on Deutsche Banks authorized agent and attorney at the Brice Firm, Michael B. Shaw, at the address provided on Claim No. 6. They were also served on OneWest Bank at the address provided in Claim No. 6. True and correct copies of the Objection to Claim and Notice of Objection to Claim are attached hereto as Exhibit 3. 8. On November 29, 2011, Debtor sent requests for production of Documents to

both OneWest Bank, the purported agent of Deutsche Bank, and to Deutsche Bank at the two addresses supplied on Claim No. 6. True and correct copies of the Debtors Request for Production of Documents on OneWest and Deutsche Bank are attached hereto as Exhibits 4 and 5, respectively. No responses were provided. 9. The address for the servicing of Deutsche Bank's Agent Michael B. Shaw

[attorney for the Brice Firm] is P. O. Box 829009 Dallas, Texas 75382-9009. Courtesy Notice was sent to OneWest Bank at the address supplied on Claim No. 6. 10. On January 17, 2012, the motion was heard, and an order was entered

15 sustaining Debtor's Objection to Deutsche Bank's Claim No. 6, based on the documents 16 submitted to the Court for this matter. 17 18 19 20 21 22 23 24 25 26 27 28
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11.

Deutsche Bank, OneWest (Deutsche Banks agent) and NBS (in house

bankruptcy servicer) are all represented by or associated with the Brice Firm or attorneys employed by the Brice Firm. NBS is actually located in the same office as the Brice Firm office. Thus, service on Michael Shaw at the Brice Firm, an attorney at the Brice Firm during the relevant time period, provided notice to Deutsche Bank and OneWest, and NBS. Deutsche Bank and/or its attorneys are not being forthcoming about the relationship between the Brice Firm, Michael Shaw, and Mark D. Estle, who, during the relevant time period, all worked \ together at the Brice Firm.

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12.

Michael Shaw was employed by the Brice Firm at the time he filed Claim No.

6. A true and correct copy of Michael Shaws LinkedIn account (www.linkedin.com/pub/michael-shaw/17/569/8bb), his professional information from the State Bar of Texas, and his lawyer profile in the Dallas, Texas legaldirectories.com are attached hereto as Exhibit 6. The information on Mr. Shaw indicates that he worked at the Brice Firm from January 2011 March 2012, and that his business address was 9441 LBJ Fwy., Ste. 250, Dallas TX 75243, which is the same address as the Brice Firm. 13. NBSs executive team consists of its Chief Executive Officer, Larry J.

Buckley, who is also the President of the Brice Firm. NBSs Chairman is Lance Vander Linden, who indicates that he has been involved with both NBS and the Brice Firm and has 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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been instrumental in their recognition in the management and administration of bankruptcy portfolios and legal representation of secured creditors in bankruptcy. A true and correct copy of NBS website for its Executive Team (www.nbsdefaultservices.com/why-nbs/executive) is attached hereto as Exhibit 7. 14. The Brice Firm is located at 9441 LBJ Freeway, Suite 250 Dallas, Texas

75243. The Brice Firm's in house back office processing unit is called National Bankruptcy Services, LLC ("NBS") and it is located at 9441 LBJ Freeway, Suite 250 Dallas, Texas 75243. See Exhibits 6 and 7. 15. Mark Estle, of the Estle Law Firm, who brought the instant Motion indicated in

a March 5, 2012 email to Mr. Goe that his office was just retained when his client discovered that they failed to respond to the Objection to Claim. A true and correct copy of Mr. Estles March 5, 2012, email to Mr. Goe is attached hereto as Exhibit 8. 16. On March 16, 2012, Mr. Estle wrote Mr. Goe a letter indicating that OneWest

is the creditor (not Deutsche Bank). Mr. Estles letter was on the Brice Firms letter head. A true and correct copy of Mr. Estles March 16, 2012 letter is attached hereto as Exhibit 9. 17. In a very similar case in the United States Bankruptcy Court for the Southern

District of New York, In re: Virginia Obasi [Case No. 10-10494], the Brice Firm was investigated by the U.S. Trustee by way of deposition and discovery for its filing of Proofs of

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Claims. On December 19, 2011, the Court in Opinion and Order made several findings regarding the Brice Firm. A true and correct copy of the Obasi Court Opinion is attached hereto as Exhibit 10. The New York Court found that the Brice Firm violated Bankruptcy Rule 9011. 18. One reason is that the Power of Attorney ("POA") granting the OneWest

employee power to act for the FDIC was ineffective. Second, the Debtor obtained information as to OneWest's interest by a Freedom Of Information Act ("FOIA") request from the FDIC in November 2011. True and correct copies of documents obtained by the FDIC are attached hereto as Exhibit 11. The FDIC timely replied and stated that only the servicing rights were sold by the FDIC to OneWest Bank [Indymac Bank did not sell the note, therefore the assignment could not include the note]. The Assignment is the only document that supports Deutsche Bank's Standing [and it is fatally flawed]. I declare under penalty of perjury under the laws of the United States of America that

13 the foregoing is true and correct. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Dated: March 22, 2012

By: /s/Robert P. Goe________________ Robert P. Goe

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March 22, 2012 Date

PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 18101 Von Karman Avenue, Suite 510, Irvine, CA 92612. A true and correct copy of the foregoing document described DEBTORS OPPOSITION TO MOTION BY DEUTSCHE BANK TO RECONSIDER ORDER SUSTAINING OBJECTION TO CLAIM NO. 6.; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ROBERT P. GOE IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner indicated below: I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (LBR), the foregoing document will be served by the court via NEF and hyperlink to the document. On March 22, 2012, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email address(es) indicated below: Service information continued on attached page II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL(indicate method for each person or entity served): On July 20, 2011, I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Real Time Resolutions Inc 1750 Regal Row Ste 120 PO Box 36655 Dallas, TX 75235 III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on July 20, 2011, I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on the judge will be completed no later than 24 hours after the document is filed. The Honorable Erithe Smith, USBC, 411 West Fourth Street, Santa Ana, 92701 (hand delivered)

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Susan C. Stein Type Name /s/Susan C. Stein Signature

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I.

TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) Richard J Bauer rbauer@mileslegal.com Joseph C Delmotte ecfcacb@piteduncan.com Mark Domeyer mdomeyer@mileslegal.com Mark D Estle mdestle@estlelaw.com Marc C Forsythe kmurphy@goeforlaw.com Robert P Goe kmurphy@goeforlaw.com, rgoe@goeforlaw.com;mforsythe@goeforlaw.com Nancy S Goldenberg nancy.goldenberg@usdoj.gov John H Kim jkim@cookseylaw.com Vy Pham vpham@mileslegal.com Cassandra J Richey cmartin@pprlaw.net United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov

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