DAVIES v DEUTSCHE BANK NATIONAL TRUST COMPANY | Ninth Circuit Petitioner - MOTION FOR CERTIFICATION OF QUESTIONS TO NEW YORK STATE COURT OF APPEALS
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.
"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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