Objection to Non-Monetary Status

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

LEIGHTON LEE PERRY Plaintiff pro per

SUPERIOR COURT OF CALIFORNIA

COUNTY OF CONTRA COSTA

Leighton Lee PERRY,

Plaintiff,

vs.

JP MORGAN CHASE BANK N.A.; CHASE HOME LOANS 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, Defendants

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: No. MSC10-02914 OBJECTION TO DISCLAIMER AND DECLARATION OF NON-MONETARY STATUS OF DEFENDANT QUALITY LOAN SERVICE CORP Judge: Hon. Laurel S. Brady Date: Dept: 31

TO: QUALITY LOAN SERVICE CORPORATION and all defendants and interested parties and to

their Attorneys of Record.

You are hereby notified that Plaintiff Leighton Lee Perry does object to the filing of Disclaimer

and Non-Monetary status by Quality Loan Service Corporation (“QLS”) as required by California Civil

Code §2924l(c,e) which states:

… (c) The parties who have appeared in the action or proceeding shall have 15 days from the service of the declaration by the trustee in which to object to the nonmonetary judgment status of the trustee. Any objection shall set forth the factual basis on which the objection is based and shall be served on the trustee. … (e) In the event of a timely objection to the declaration of nonemonetary status, the trustee shall thereafter be required to participate in the action or proceeding.

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A. Summary of Argument

Plaintiff has reason to believe that QLS participated in wrongful acts or omissions based on a

capacity outside of its alleged Substituted Trustee duties which are not privileged according to Civil

Code §47 and §2924(d). QLS, acting as a Trustee in the Deed of Trust in issue, has a practice and policy

of causing foreclosure without a lawful basis for initiating a foreclosure as they did not receive

instructions from the holder of record of the beneficiary interest, as required by Calif. Civil Code §2924f

and §2932.5.

… the notice shall contain a legal description of the property, the name and address of the beneficiary at whose request the sale is to be conducted, and a statement that directions may be obtained pursuant to a written request submitted to the beneficiary within 10 days from the first publication of the notice.

Having caused damages as a result of filing illegal title documents they are therefore a necessary party

to this action to be responsible for the damages and losses they caused.

On August 16, 2011, Defendant QLS served a Declaration of Non-monetary Status in this suit

pursuant to Civil Code §2924l without regard to the factual allegations of the First Amended Complaint

that put QLS on notice of its practices in violation of Civil Code §2932.5 and Penal Code §115.5.

QLS is both an appropriate and necessary party to these proceedings because it has acted beyond

lawful authority governing trustees in non-judicial foreclosures as codified in Civil Code §2920 et seq.

and attempted to conduct a sale with the transfer of title in violation of Civil Code § 2932.5.

QLS lacked the legal authority to commence and conduct, on its own volition, a non-judicial

foreclosure by the transfer of title at a Trustees’ sale to a beneficiary / lender not of record.

Upon information and belief, Defendant QLS knew or should have known that Defendant JP

Morgan Chase Bank, NA (“JPMorgan”) had no standing to declare a default or request the sale to be

conducted, and that any Assignment of Deed of Trust and any subsequent Substitution of Trustee for the

Deed of Trust was illegal under California Penal Code §115.5.

B. Factual basis in support of argument

The loan and mortgage at issue in this action was executed by Plaintiff in May, 1988. Allegedly

Federal National Mortgage Association (“FNMA”) acquired the beneficiary interest of the loan and

converted it to a security some time after. The original lender and subsequent successors in interest have

met their demise, and in 2010 the servicer / agent of the (alleged) beneficiary of the loan was Chase

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Home Finance, LLC (“Chase”).

In January 2010 Plaintiff sought to determine the current beneficiary in order to refinance with a

reverse mortgage and requested qualified written requests for a beneficiary statement and copy of his

promissory note from Chase. None was forthcoming.

On June 15, 2010, Defendant QLS caused to be filed and publicly published a Notice of Default,

naming JPMorgan as the beneficiary [EXHIBIT “Q3”]. As QLS had not been substituted as Trustee, this

is a violation of Penal Code 115.5. Because the equity in the property exceeds $100,000, this is a felony

in California.

On August 30, 2010, JPMorgan caused to be recorded an Assignment of Deed of Trust,

purportedly executed August 25, 2010, signed by Tim Bargenquast as signatory for McCarthy and

Holthus, LLC, Attorney in Fact for JPMorgan as agent by LSI Title Company, an agency for JPMorgan.

[EXHIBIT “Q1”] Plaintiff alleges that Tim Bargenquest was an employee of QLS at the time the Notice

of Default was filed by QLS. The assignment purportedly transferred beneficiary interest from FNMA to

JPMorgan [Exhibit “Q1”].

On September 16, 2010, Defendant QLS caused to be publicly posted on the front door of

Plaintiff’s home a Notice of Trustee Sale. Because the Notice of Default was illegal and void, this is not

a privileged communication provided for under §2924.

On September 23, 2010, Defendant JPMorgan caused to be recorded a Substitution of Trustee

with the Contra Costa County Recorder’s Office naming QLS as Trustee. [EXHIBIT “Q2”]

Plaintiff’s First Amended Complaint asserts that FNMA had marked the loan “PAID IN FULL”

before selling it to JPMorgan. Mr. Bargenquast, as signatory for FNMA, was or should have been aware

of that fact. Should Plaintiff’s allegations prove true, this would represent a cause of action for unjust

enrichment by the attempted sale by foreclosure of the subject property by two parties to this action. As

an employee of QLS, Mr. Bargenquast should have been aware that his company had already filed a

Notice of Default months before the Assignment of Deed of Trust was effected by his signature, and that

QLS had yet to be substituted as Trustee. These represent violations of Penal Code 115.5, false filing of

title documents, and constitute felony forgery.

Plaintiff contends that an informal partnership exists among FNMA, JPMorgan, Chase, and QLS,

who are named parties to this action, working toward the same goal as other named and as yet, unnamed

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parties in this action. A case on point is Black v. Sullivan (1975) 48 Cal.App 3d 566; [122 Cal.Rptr 119].

“The effect of charging unitary action inherent in the allegations of conspiratorial conduct is to

implicate all participating in the common design and thus to fasten liability on those who agree

to the plan to commit the wrong as well as those who actually carry it out. (Chicago Title Ins.

Co.v. Great Western Financial Corp.(1968) 69 Cal.2d 305, 316 [70 Cal. Rptr. 849, 444 P.2d

481];Wise v.Southern Pacific Co. (1963) 223 Cal. App.2d 50, 64 [35 Cal. Rptr. 652].) The

significance of this form of action "`... lies in the fact that it renders each participant in the

wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong,

irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'"

(Unruhv. Truck Insurance Exchange(1972) 7 Cal.3d 616, 631 [102 Cal. Rptr. 815, 498 P.2d

1063];Mox Incorporated v.Woods (1927) 202 Cal. 675, 677-678 [262 P. 302].)” "Under traditional legal concepts the partnership is regarded as an aggregate of individuals with

each partner acting as agent for all other partners in the transaction of partnership business, and the

agents of the partnership act as agents for all of the partners." (Marshall v. International

Longshoremen's and Warehousemen's Union (1962) 57 Cal.2d 781, 783 [22 Cal.Rptr. 211, 371 P.2d

987]).

"In determining whether a relationship such as that of partners has been created, the courts are

guided not only by the spoken or written words of the contracting parties, but also by their acts."

(Singleton v. Fuller (1953) 118 Cal.App.2d 733, 740-741 [259 P.2d 687], internal citation omitted.)

"It is essential, however, to the existence of a partnership that there be a community of interest and an

agreement to share jointly in the profits and losses resulting from the enterprise." (Sandberg v. Jacobson

(1967) 253 Cal.App.2d 663, 668 [61 Cal.Rptr. 436], internal citation omitted). In the instant case FNMA

receives the difference of the defaulted amount and the original loan from an insurance claim; JPMorgan

receives a credit for the defaulted amount; QLS receives Trustee fees and its agent, McCarthy and

Holthus receives attorney fees; and Chase receives late fees and miscellaneous foreclosure fees. All are

tied together by a system of computer software provided by LSI and its parent, Lender Process

Servicers, LLC, who are named but not parties to this action.

“Thus a plaintiff is entitled to damages from such defendants as he can show have united,

participated or cooperated in inflicting a wrong on him. (Loeb v.Kimmerle (1932) 215 Cal. 143,

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150-151 [9 P.2d 199]; Mox Incorporated v.Woods, supra, 202 Cal. at p. 678;Revert v.Hesse

(1920) 184 Cal. 295, 301 [193 P. 943]; Ramey v. General Petroleum Corp.(1959) 173 Cal.

App.2d 386, 404 [343 P.2d 787].) (5) Moreover, since such participation, cooperation or unity of

action is difficult to prove by direct evidence, it can be inferred from the nature of the act done,

the relation of the parties, the interests of the alleged conspirators, and other circumstances.

(Revert v.Hesse, supra, at p. 301; Balistreri v.Turner (1964) 227 Cal. App.2d 236, 241- 242 [38

Cal. Rptr. 553]; Ramey v. General Petroleum Corp., supra,at p. 404; Anderson v.

Thacher(1946) 76 Cal. App.2d 50, 72 [172 P.2d 533].) It is not necessary that the plaintiffs

produce evidence showing that the defendants met and actually agreed to undertake the

performance of the unlawful act. (Balistreriv. Turner, supra,at p. 242; Alfred M. Lewis, Inc.v.

Warehousemen etc. Local No. 542 (1958) 163 Cal. App.2d 771, 778-779 [330 P.2d 53].) It is

settled, however, that "[a] civil conspiracy however atrocious, does not per se give rise to a

cause of action unless a civil wrong has been committed resulting in damage." (Unruh v. Truck

Insurance Exchange, supra,7 Cal.3d at p. 631.) “ Black v. Sullivan supra

Defendant QLS has shown a callous disregard for California property and recording laws and

continues to cloud the titles of countless properties throughout the state. A quick examination of

property records at the Contra Costa County Recorders Office produced the loans shown in EXHIBITS

“Q4” through “Q10”. Each of these examples show that QLS recorded the Notice of Default before

being substituted as Trustee with the power to do so, and each of the examples resulted in a Trustee Sale

or other turnover to the Trustee. As such each of the examples is a violation of Penal Code 115.5 which

voids the Trustee Sale. For those homes with balances over $100,000 the statutes indicate that probation

is not an option and that at least 2 years must be served in state prison. Given the recent Supreme Court

decision that corporations have personal rights to make political donations, those rights should come

with corresponding responsibilities. Plaintiff suggests the Court consider ordering the Chairman of the

Board of QLS to be named and serve any time for any arrest unless he or she can produce the person

within the company that is more responsible for the decision to wantonly violate California state law.

C. Conclusion

The beneficiary named on the Notice of Default of June 15, 2010, was not authorized with the

power to declare default until two and one-half months later. The person signing the Assignment of

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Deed of Trust on behalf of that beneficiary, FNMA, was Tim Bargenquast, an employee of QLS, which

is the company that filed the Notice of Default to conduct a non-judicial foreclosure on Plaintiff’s

property and was afterward substituted as Trustee. As a result, QLS cannot claim innocence or surprise

based on reliance upon information by a beneficiary unknown to them (because they had not been

substituted as Trustee). Their violations of the recording statues were presented to them a second time,

when Tim Bargenquast assigned the beneficiary after the Notice of Default had been file. And the third

instance that should have triggered some revision was when they filed the Substitution of Trustee.

Although there is provision in the statues to correct their malfeasance, QLS chose to commit to their

illegal actions in the three times that they were made aware of the falsely-filed documents.

Mr. Bargenquast is the link common to FNMA’s agent McCarthy and Holthus as beneficiary and

QLS as subsequent Trustee. Chase is the loan Servicer for FNMA and a corporate child of JPMorgan. A

common system of shared computer software is available to Chase, JPMorgan, and QLS. Clearly they

all gain by acting in concert with each other. Plaintiff would be bereft of his right to discovery to provide

evidence of the collusion in order to defraud Plaintiff of his property if QLS and its employee Tim

Bargenquast are granted this declaration and removed from the court’s purview of discovery by the

immunity granted in Civil Code §2924l.

D. Prayer

Plaintiff respectfully requests his objection to the Declaration of Nonmonetary Status of Quality

Loan Service Corporation be sustained.

Plaintiff further requests the award of sanctions against QLS for filing a frivolous and meritless

declaration in attempting to perpetrate a fraud upon this Court in light of the evidence of Penal Code

violations submitted in this case. In the instance of Plaintiff’s loan, the penal code fine is $75,000 per

filing, and the 3 filings would total $225,000.

Plaintiff further requests the Court consider, in light of the prima fascia evidence sitting in

virtually every county recorder’s office in California, recommending a referral to the District Attorney’s

office of the 7 loans named in Exhibits Q4 – Q10 for violations of the Penal Code.

Dated: August 22, 2011 ___________________________

Leighton Lee Perry, Plaintiff

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Perry v. JPMorgan Chase et al Case# MSC10-02914LIST OF EXHIBITS

EXHIBIT Q1 – Assignment of Deed of Trust of August 30, 2010

EXHIBIT Q2 – Substitution of Trustee of September 23, 2010

EXHIBIT Q3 – Notice of Default and Election to Sell of June 15, 2010

The exhibits above have been admitted to the record as to their existence, but not to their

veracity.

The following exhibits are screen dumps from the online access to Contra Costa County Records

Office. Each of them show Quality Loan Service Corp as filing a Notice of Default before they are

substituted as the Trustee named on the notices. As such they are uncertified, but can be certified in the

event of a trial, and can be confirmed online at any time.

EXHIBIT Q4 – Chaymany loan

EXHIBIT Q5 – Digirolamo loan

EXHIBIT Q6 – Pullin loan

EXHIBIT Q7 – Vandeusen-Jensen loan

EXHIBIT Q8 – Webber loan

EXHIBIT Q9 – Whitman loan

EXHIBIT Q10 – Williams’ loan

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

Page 1 of 1 EXHIBIT “Q1”

Objection to Non-Monetary Status

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