Docket No. 1260003
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN W. DAVIES, as Plaintiff-Appellant,
V.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for
Indymac Residential Asset Securitization Trust 2007-A5, under the
Pooling and Servicing Agreement Dated March 1, 2007, Defendant-
Appellee.
MOTION FOR CERTIFICATION OF QUESTIONS TO
NEW YORK STATE COURT OF APPEALS
Appeal from Decisions of the:
- Bankruptcy Appellate Court of the Ninth Circuit, No. 11-1221.
- Bankruptcy Court of the C.D. Cal. Case No. AP 01-01001.
A California Appeals Court determined that a Plaintiff [nonparty to PSA]
has standing to challenge a securitized trust’s ownership. See Glaski v. Bank of
America, N.A., 218 Cal. App. 4th 1079 (2013) which held:
“We conclude that a borrower may challenge the securitized
trust’s chain of ownership by alleging the attempts to transfer the
deed of trust to the securitized trust (which was formed under N.Y.
law) occurred after the trust’s closing date. Transfers that violate
the terms of the trust instrument are void under New York law, and
borrowers have standing to challenge void assignments of their
loans even though they are not a party to, or a third party
beneficiary of, the assignment agreement.”
Pursuant to Article VI Section 3(b)(9) of the New York State
Constitution, the Plaintiff and Appellant, Brian Davies (“Appellant”) hereby
moves before this Court for an Order certifying the following questions to the
New York State Court of Appeals.
1. Does Appellant have standing to challenge Appellee, Deutsche
National Bank Trust Company’s (“Deutsche Bank”) failure to honor the
specific delivery, time sensitive, and transfer requirements for notes and
mortgages under the applicable Pooling and Servicing Agreement
(“PSA”), the governing document for the trust supposedly holding
Appellant’s note and mortgage?
2. Does New York law control the enforceability of Appellant’s note
and mortgage?
3. Did the delivery and transfer of the Appellant’s note to Appellee,
Deutsche Bank, as trustee, after the trust’s closing date render this transfer
“void” as opposed to “voidable”?
4. Did the assignment of the Appellant’s mortgage over two years
after the purported trusts closing and contrary to the mandates of 26
U.S.C. Section 860D, render this assignment “void” as opposed to
“voidable”?
5. Does the Appellant have the ability to challenge his loan with
Mortgage Electronic Registration Systems, Inc. (“MERS”) [not a party to
the PSA] when the purported assignment listed MERS as a nominee of a
non MERS member who was not a beneficial owner listed on MERS own
audit trail.
6. Does the Appellant have standing to challenge the securitization of
his mortgage?
7. How do the laws of New York, the Uniform Commercial Code, and
California contract and real estate laws prioritize in regards to the
Mortgage [Deed of Trust in California] and Note?
8. How is the security interest perfected prior to trust transfer, and
how is it perfected from the Seller [Indymac Bank, FSB] to the Depositor
[Indymac MBS] and to the Trustee [Deutsche Bank National Trust
Company as Trustee]?
9. Does the Uniform Commercial Code Section 3 control perfection
of a secured interest, i.e. does an endorsed note in blank, alone allow for
security perfection [security interest follows the note], or must more be
demonstrated to show ownership that is perfected?
Appellant respectfully submits that these issues will be determinative of
the pending Appeal, may be determinative of the entire action, and have not
been decided by the New York State Court of Appeals, the jurisdiction of the
controlling law. Accordingly, certification is appropriate pursuant to Article
VI Section 3(b)(9) of the New York State Constitution which provides:
The court of appeals shall adopt and from time to time may
amend a rule to permit the court to answer questions of New York
law certified to it by the Supreme Court of the United States, a
court of appeals of the United States or an appellate court of last
resort of another state, which may be determinative of the cause
then pending in the certifying court and which in the opinion of the
certifying court are not controlled by precedent in the decisions of
the courts of New York.
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