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Peter C. Clark 1674 A Pleasant Hill Rd., Pleasant Hill, CA, 94523 (925) 954-8284 In pro per

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION Peter Clark, Plaintiff
) ) Deutsche Bank National Trust Company, ) ) Does 1-100 ) Defendants ) Related Bankruptcy Case # 10-41422 EDJ )
v.

Case # 10-04481 VERIFIED AMENDED COMPLAINT JURY CLAIM AS TO ALL COUNTS EXCEPT DECLARATORY RELIEF
pg. 50 pg. 52 pg. 53 pg. 57 pg. 58 pg. 60 pg. 63 pg. 65 pg. 67 pg. 68 pg. 72

1st CAUSE OF ACTION FRAUD 2nd CAUSE OF ACTION VIOLATIONS OF BANKRUPTCY ACT 3rd CAUSE OF ACTION DECLARATORY RELIEF 4th CAUSE OF ACTION VIOLATION OF 42 U.S.C. 1983: DUE PROCESS 5th CAUSE OF ACTION VIOLATION OF 42 U.S.C. 1983: UNLAWFUL TAKING 6th CAUSE OF ACTION VIOLATIONS OF BUSINESS & PROFESSIONS CODE 17200 7th CAUSE OF ACTION MALICIOUS PROSECUTION 8th CAUSE OF ACTION MALICIOUS ABUSE OF PROCESS 9th CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 10th CAUSE OF ACTION VIOLATIONS OF 18 U.S.C. 1962 (c) - RICO ACT 11th CAUSE OF ACTION VIOLATIONS OF 18 U.S.C. 1962(d) - RICO ACT

CONTENTS
FACTS Jurisdiction is Proper to this District Court This Case is not the Proper Jurisdiction of the Bankruptcy Court The Rooker-Feldman Doctrine does Not Apply to This Action Parties and Agency Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee VIOLATIONS OF (Non Bankruptcy) LAW Further Violations of Law The Sheriff Verifies that Service was Deficient Bad Faith Deception, Fraud, and 15 USC 1962e] Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress Plaintiff Acted In Good Faith And Defendants Have Not Deception and Undue Influence Deutsches Pattern of Fraud Constitutes Racketeering Contra Costa Courts and Bankruptcy Court Had No Jurisdiction for Deutsche SUMMATION INDEX OF EXHBITS -12 4 6 8 8 10 14 15 19 33 37 38 40 41 44 45 48 49 51

COMPLAINT

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Comes now Plaintiff Peter Clark (herein also Mr. Clark) to allege and state the following Verified Amended Complaint for Declaratory Relief and Post Bankruptcy Damages resulting from alleged violations of law that include violations of the Bankruptcy Act; the Fair Lending Act; the Fair Debt Collection Practices Act [15 USC 1962e,(12); (CCP 473(d)) (judgment was and is unwarranted and improper under applicable law, and is in fact void on its face; Business & Professions Code 17200 and BPC 17918; Protection of Tenants in Foreclosure Act of 2009; Bar Rules and Rules of Court); and the Civil Rights Act, Title 42 U.S.C 1983 under the color of law but in violation thereof, in a pattern of racketeering in violation of the RICO Act by Defendant Deutsche Bank National Trust Company and Does 1-100 (herein also Deutsche). This Verified Amended Complaint is allowed under Rule 15 (a) (1). This document amends the causes of action and updates the pleadings and EXHIBITS related to ongoing alleged violations. FACTS
1)

On or about March 5, 2010, attorneys that alleged they represented Deutsche Bank

National Trust Company (Deutsche) alleged without prior notice that Deutsche had foreclosed on Peter Clarks home three months before, allegedly on November 4th, 2009. Deutsches announcement came in the form of Unlawful Detainer Case #CD10-0170 (Contra Costa County) against Mr. Clark and his frail and elderly tenant, Mary Bauer. Deutsches action contradicted the statements of IndyMac, the alleged loan servicer ( 29-49 and 75-96 herein, EXHIBIT B., and 10-11 of the declaration of Peter Clark).), and the evidence indicates was without foundation (55-67 herein) or the prior Notice required by California law and the Protection of Tenants in Foreclosure Act of 2009 ( 31 herein). Deutsche filed said unlawful detainer during the time of the automatic bankruptcy stay in Mr. Clarks Bankruptcy (filed February 10, 2010) and thus in violation of the Bankruptcy Act (40-49 herein), as well as 554 related to the jurisdiction of the case Trustee (44-45 herein), Deutsche had never before alleged to Mr. Clark that it held any interest in the Note upon which a foreclosure might be based, much less the right to foreclose, nor has it since provided evidence that it held the Note at the time of the alleged foreclosure, purchased the right to foreclose legally, or engaged in due process to take the home, office, and workshop. Deutsceh is then alleged to have prosecute their action in violation of law per CCP 473.
2)

Deutsche is alleged to lack standing to foreclose on or to evict Mr. Clark or his tenants,

or to act in Mr. Clarks bankruptcy per Federal and State court rulings such as shown by In re
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Kang Jin Hwang, 396 B.R. 757 (Bankr. C.D.Cal. 2008 Exhibit K),). (88, herein.) Rule 19 requires a joinder with the actual owner to proceed, however the evidence indicates that Mr. Clark is the only one with an actual claim to be the legal owner. Deutsche acted anyway in alleged violation of 11 USC 554 and due process by ex parte actions that were without notice to and outside of the presence of opposing counsel ( 42-44. herein).. Deutsche is also alleged to be acting in violation of the RICO Act, and the Civil Rights Act, Title 42 U.S.C 1983 (Due Process- 14th Amendment) (( 42-44. herein). resulting in an unlawful taking in violation of the Fifth Amendment as part of an extensive fraud in new and novel claims that began after Plaintiffs bankruptcy filing, and which thus constitutes post bankruptcy petition claims ( 50 -104 herein)..
3)

The evidence shows that Defendant and/or agents have also violated the Fair Lending

Act; the Fair Debt Collection Practices Act [15 USC 1962e,(12); False or misleading representations] ( 31 and 113-119, herein).; Business & Professions Code 17200 (113119, herein).; and BPC 17918 ( 31 and 113-119, herein).; Bar Rules and Rules of Court ( 46-47, 62. 88. herein). in prosecuting the litigation that they filed against Mr. Clark and Mary Bauer for the alleged purpose of perpetrating fraud under the color of law in alleged violation of Title 42 U.S.C 1983) ( 50 -104 herein). Deutsche is prevented from advancing by collateral estoppels per In Re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007), by the continued federal authority, and for other reasons delineated in part herein as supported in part by EXHIBIT F (113-119, herein).; filed and attached herewith.
4)

Bank of America recently stopped foreclosures and evictions in all 50 States because of

problems similar to those delineated by the judgment that Deutsche received against them with In Re Foreclosure Cases regarding all fourteen of the foreclosures and evictions that Deutsche attempted in that case (52-56, herein.), A joint investigation by the attorneys general of every state and the District of Columbia is also affirming the allegations within this Complaint (See EXHIBIT J). Deutsches problems related to the Subject Property are many times what Bank of American faces, however.
5)

Deutsches actions are alleged to constitute vigilante acts of fraud by a foreign funding

pool that has no rights under California law even their alleged claims to title were true (which is denied) because Deutsche appears to have not complied with Business & Professions Code 17918 by filing a fictitious name statement (See EXHIBIT C, which shows some of the results
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of a diligent search) (113-119, herein). EXHIBIT D shows that Deutsche may not have federal standing either. Deutsche is thus alleged to be using vigilante means to take possession of Plaintiffs home in violation of due process and federal authority per the Bankruptcy Act, without showing standing, right, or authority. As such, Deutsche holds property for Plaintiff in Constructive Trust. As Deutsche is not a corporation, its employees risk liability exposure by engaging in the allegedly illegal activities delineated herein. Why take such risks? It is alleged that by not incorporating they may avoid having to file tax returns, and thus that their larger prize may be tax evasion. JURISDICTION is Proper to this District Court The U.S. District Court has original and exclusive jurisdiction over all cases arising under

6)

Title 11 of the Bankruptcy Act. 28 U.S.C. 1334. Jurisdiction of this court also arises under 28 U.S.C. secs 1331, 1337, 1343(a), and 1367(a); 42 U.S.C. secs. 1983, 1985, 1986, and 1988; and 18 U.S.C. 1961-1968 (RICO Act) after the federal violations by Deutsche, a funding pool that is not incorporated, and is alleged to not be operating legally in California per Business and Professions Code 17918. As said funding pool is alleged to be entirely owned by Deutsche Bank AG, an international bank with its headquarters in Frankfurt, Germany, there is complete diversity of jurisdiction. Jurisdiction for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
7)

This case is also brought under State laws related to overlapping issues that form the

same case or controversy. The Contra Costa Court lacked jurisdiction for Deutsches Unlawful Detainer (See 149, herein), which prosecution has caused the federal violations.
8)

This court has personal jurisdiction because Plaintiffs primary residence for all times

relevant herein in this Federal District at 1674 Unit A or Unit B, Pleasant Hill Road in Pleasant Hill, Contra Costa County (Subject Property), together with an office and business described as:
Lot 2, as shown on the map of Diablo View Gardens, the City of Pleasant Hill, County of Contra Costa, State of California, filed 12, March 1946, in Map Book 28, Pages 35 and 36, in the Office of the County Recorder of the County of Contra Costa.

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COMPLAINT

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Deutsche has tacitly admitted to violating 11 U.S.C. 362 by filing their action against

Peter Clark during the time of the automatic bankruptcy stay1. Deutsche is also alleged to have violated 11 U.S.C. 554 because they have prosecuted their Unlawful Detainer and scheduled numerous hearing without serving the Bankruptcy Trustee, including with their Summary Judgment Motion (See EXHIBIT H).2 Said Unlawful detainer was under the authority of the Case Trustee since the involuntary Chapter 7 conversion of Mr. Clarks bankruptcy on or about May 6, 2010 (40-49 herein).3 Thus, all actions that they allege related to said Summary Judgment Action are void due to their prima facie violations of due process as well as the innumerable triable issues of fact shown by EXHIBIT A, which were not considered in the ex parte hearing that provided a poor substitute for due process as shown by the declar. of Alan Kilpatrick filed and attached hereto (Attachment ii). As Deutsche is alleged to have engaged in these acts as part of a larger pattern of fraud, each proof of service of theirs is alleged to constitute mail fraud in independent violations of 18 U.S.C. 1962 (c) or (d) (RICO Act) after those alleged to be acting in an agency relationship with Deutsche engaged in (pre-petition) Fraud and Constructive Trust. Said Agents in the previous alleged fraud include the IndyMac Parties which includes Indymac Loan Services and/or OneWest Bank.
9)

The case trustee stated a preference to abandon Deutsches unlawful detainer case

against Mr. Clark from the trust estate to the debtor to defend on his own, but the court has not yet ordered such an action. As a result, said unlawful detainer litigation remains under the jurisdiction of the case trustee until it is removed by an order of the Bankruptcy Court under 11 U.S.C. 554, and all acts to move that case taken without Notice and agreement with said Trustee are void by public policy.4
1

Mr. Clark stipulated to allow the filing to continue without refilling because it is fatally flawed for other reasons, however the case law cited in 49 suggests that an award of damages is still warranted. There is currently no automatic bankruptcy stay in place in Mr. Clarks bankruptcy 2 While the alleged foreclosure of Plaintiffs home, Office, and Workshop in October or November 2009 (depending on who alleges it), technically removed the Subject Premises from the trust estate of Peter Clark, Mr. Clark remained the real party at interest (outside of the bankruptcy). However any litigation related to the debtor that began prior to the involuntary Chapter 7 Conversion of Mr. Clarks bankruptcy is considered part of the Trust Estate, regardless of whether it relates to an asset that is part of the trust estate. Said litigation included the unlawful detainer Case NO: CS10-0170 in Contra Costa County and the Summary Judgment Motion that Deutsche filed related thereto... 3 The United States Bankruptcy Court for the Northern District of California on Thursday, May 6, 2010 in In re Peter Carson Clark, Case No. 10-41422EJ, ruled to convert a bankruptcy proceeding initiated by Peter Clark on February 10, 2010 under Chapter 13 of the Bankruptcy Code, to a Chapter 7 liquidation. Federal Judge Jellin signed the Order Converting Chapter 13 Case to a case under Chapter 7 on May 12, 2010. -5-

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4

An order lifting or modifying the automatic stay by itself does not constitute a de facto abandonment of the property of the estate. Procedures under 554 must be followed before property is legally abandoned. Catalano v. CIR, 279 F.3d 682 (9th Cir. 2002) 10)

Deutsche has ignored the authority of the Bankruptcy Trustee over the case by moving

forward without notice to the Trustee as is shown by the proofs of service including as shown by EXHIBIT H filed herewith. By doing so they proceeded without opposition because Mr. Clark, the de facto party at interest, was not a de jure party, and could not even appear on his own behalf, as to do so would have violated the federal authority of the case Trustee. Thus Deutsche violated the Bankruptcy Act and Mt. Clarks civil rights (taking without due process).
Bankruptcy court has jurisdiction to annul the stay and impose sanctions for its violation even after the case is dismissed. In re Johnson, 346 B.R. 190, 194 (9th Cir. BAP 2006)Our courts have permitted collateral attacks on judgments based on factors other than the lack of subject matter jurisdiction or the lack of personal jurisdiction. Collateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant (Swycaffer v. Swycaffer (1955) 44 Cal.2d 689, 693 [default judgment in excess of relief demanded by prayer]; Michel v. Williams (1936) 13 Cal.App.2d 198, 201 [court without power to award costs]; [citation]). (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950.)

This Case is not the Proper Jurisdiction of the Bankruptcy Court

11)

This court cannot refer this case to a bankruptcy court under 28 U.S.C. 157(a) or

157(d) despite violations of the Bankruptcy Act and authority of the Case Trustee because the quirks of the application of bankruptcy law cause the Subject Premises to be classified outside of Mr. Clarks bankruptcy trust estate, and thus not a Core Issue appropriate for an Adversarial Action in the bankruptcy/ In addition, the bankruptcy court cannot conduct a jury trial in a non-core proceeding. In re Chet Decker, Inc., No. 06-3658, 2006 U.S. Dist. LEXIS 77091, at *7 (D.N.J. Oct. 23, 2006). [Bankruptcy court can only conduct a jury trial in a core proceeding with the express consent of all parties. 28 U.S.C. 157(e).]
12)

In addition, violations of Mr. Clarks post petition civil rights such as under the 5th and

14th Amendments, unlawful taking of Mr. Clarks home, which is not part of the Bankruptcy estate, and violations of due process), and/or violations of the RICO Act related thereto are not proper issues for the bankruptcy court. In addition, these are Post Petition damages that did not exist in the time frame for which the Bankruptcy court has jurisdiction. Further, it is likely that the current litigation would not be heard prior to the discharge of the bankruptcy, an
Before the Chapter 7 conversion Plaintiff stipulated to a removal of the automatic bankruptcy stay related to the Subject Premises, however case law shows that this does not eliminate damages claims against the violators In re Johnson, 346 B.R. 190, 194 (9th Cir. BAP 2006), -6-

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eventuality that eliminates adversarial claims made in the bankruptcy, and Mr. Clark desires a jury trial. For these reasons, this action could not be an adversarial action of the bankruptcy.
13)

Because of the quirks of the law and the timing of actions, all litigation involving the

debtor was automatically brought within the bankruptcy, but not all of the de jure interests of the debtor were. That does not itself create a violation of due process and civil rights. Instead, it is Deutsches violation of the authority of the bankruptcy trustee and due process by their ex parte hearings with Judge Mills (Contra Costa) outside of the presence of opposing counsel to create an order that takes away Mr. Clarks home without the due process of a hearing in which Mr. Clark can provide a defense or appeal which violates due process. However the Contra Costa Courts are alleged to have lacked jurisdiction to try the case as delineated herein:
Collateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant (Swycaffer v. Swycaffer (1955) 44 Cal.2d 689, 693 [default judgment in excess of relief demanded by prayer]; Michel v. Williams (1936) 13 Cal.App.2d 198, 201 [court without power to award costs]; [citation]). (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950.)

14)

In November, 2009, Mr. Clark filed an action against the IndyMac Parties (including

OneWest Bank, who alleged that they foreclosed on Mr. Clarks home on October 20, 2009. Mr. Clark did not list Deutsche in that filing because Deutsche did not make their current claims known to Mr. Clark by posting an alleged Notice to Vacate or otherwise until AFTER Mr. Clark filed for (Chapter 13) Bankruptcy on February 10, 2010.
15)

Deutsche is alleged to have engaged in the above violations in a pattern of racketeering

activity in violation(s) of 18 U.S.C. 1962 (c) or (d) (RICO Act) after those alleged to be acting in an agency relationship with Deutsche engaged in (pre-petition) Fraud and Constructive Trust. Said Agents in the previous alleged fraud include the IndyMac Parties which include Indymac Loan Services and/or OneWest Bank.
16)

Mr. Clark stipulated to remove the automatic bankruptcy stay related to the Subject

Premises so that Deutsches unlawful detainer case against Mr. Clark, which was fatally flawed, would be litigated without the flaws being corrected by proper notice, etc. However Deutsche took advantage of the involuntary conversion of Plaintiffs bankruptcy to a Chapter 7 liquidation by failing to give notice to the Trustee and thus caused their Summary Judgment to be heard ex parte, outside of the presence of opposing counsel, and in a way that prevented Mr. Clarks substantial defenses to be heard or from Mt. Clark receiving a redress of the breach of
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COMPLAINT

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justice by an appeal because Mr. Clark has no standing related to actions of which he is the real party at interest and which will deprive him of his home without due process in an unlawful taking.
[In re White, 186 B.R. 700 (9th Cir. B.A.P. 1995) - Debtor is stayed from appealing an adverse judgment where the action was brought against him.] 17)

As Deutsche is alleged to not be the real party at interest as a Plaintiff in the unlawful

detainer Case NO: CS10-0170 in Contra Costa County, both State and Federal civil procedure requires that said case could not move forward until the real parties at interest are the parties to the suit as is supported in part by In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008) (88, herein.), The Rooker-Feldman Doctrine does Not Apply to This Action
18)

As the unlawful detainer litigation is part of the trust estate, Mr. Clark is not an actual

Party in the litigation- the case trustee is, despite the fact that Mr. Clark is the real party at interest in his actual ownership and possession of the property. Thus, Mr. Clark lacks standing to appeal an order that takes his home. However as the order was made without actual jurisdiction, it is void. Because the asset is not part of the trust estate, the trustee would have no interest in pursuing an appeal even if he were given notice of the order, which he has not because of the ongoing violations of notice requirements of due process. Mr. Clarks only possible redress is to this court. The issues herein have not been adjudicated, nor are they being considered in any current case, thus the issues are new and novel. PARTIES, and AGENCY
19)

Plaintiff Peter Clark ["Mr. Clark"] is a natural person residing at 1674 A Pleasant Hill

Road, Pleasant Hill, California. United States of America; who purchased the Subject Property in or about 1980 and that has been his primary residence for all times relevant herein. This is where he raised his children.
20)

From information and belief, Deutsche Bank National Trust Company (herein also

Deutsche) consists of individuals acting in an agency relationship but not as a corporation or other entity with limited liability. Because of the limitation on liability, it is alleged that the liability for Deutsehcs acts and omissions extends to any individual who has engaged in or facilitated the alleged violations and/or fraud delineated herein, particularly the attorneys, and
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5

management, It is also alleged that because of the structure of German companies, the liability for the damages extends to the ownership of the company as well.5 Deutsche is alleged to be wholly foreign owned by Deutsche Bank AG of Frankfurt, Germany.
21)

Those claiming to represent Deutsche allege the approval of the Comptroller of

Currency to operate as a bank in California, but this may not be the case. After a diligent search shown in part by EXHIBIT C filed and attached herewith, no entity of the name of Deutsche was found to be registered to operate under a fictitious name in California at the time of Deutsches filing for unlawful detainer. As a result, the evidence indicates that under Business and Professions Code (BPC) 17918, Deutsche has no standing or right to avail themselves of the courts in California, and said courts lack jurisdiction to provide Deutsche with an unlawful detainer judgment for that reason as well as their lack of subject matter jurisdiction delineated elsewhere herein6.
22)

Said attorneys who allege to represent Deutsche, allege that Deutsche, a non-entity

with no legal standing to sue in California, holds title to the Subject Property as a trustee, not for a trust or entity, but for an undisclosed agreement of unknown nature. Without showing actual evidence, they allege that they made said Agreement with an entity that was liquidated, from information and belief without ever receiving, much less assigning the Note
See EXHIBITS R and S regarding the ownership and management of Deutsche Bank AG, and thus, allegedly, where at least some of the liability resides for acts and omissions made in the name of Deutsche Bank National Trust Company, 6 The evidence indicates that attorneys who claim to represent Deutsche duped the Honorable Bruce Mills of the Superior Court of Contra Costa into violating due process and federal authority (Bankruptcy Act), for which violations there is no sovereign immunity as supported by Ex parte Young 209 U.S. 123 (1908), nor under Section 1983, as shown here. As Judge Mills Mills had no jurisdiction as a judge of the Superior Court of California and acted outside of his authority as a Judge, he is treated as an individual, as a defacto agent of Deutsche Bank National Trust Company, whose attorneys are acting as officers of the court in acts for which Bruce Mills, and for which said attorneys have no standing or capacity. 2) Because Judge Mills and said agents acted unconstitutionally and in violation of federal law, they are not protected by the state's sovereign immunity as supported by Ex parte Young. As a consequence of Ex parte Young, Congress passed two important statutes: * 28 U.S.C. 2201 gives federal courts the power "to declare the rights and other legal relations of any interested party" and provides that "Any such declaration shall have the force and effect of a final judgment"; and * 28 U.S.C. 2202 states that "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party." The effect of 2201 is to permit the federal courts to declare the rights of a party suing a state official (or any other party, but they were created with state officials in mind) without issuing an injunction against the official. This was thought to be more respectful of the states. However, if the court declares a statute to be unconstitutional, and the state official still prosecutes someone for violating the statute, then 2202 takes effect, permitting the federal court to take action such as issuing an injunction and holding an official who violates that injunction in contempt -9-

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upon which their claims are based, and thus without the right to collect rents or to foreclose, much less to evict, Mr. Clark or his elderly tenant. Thus said attorneys allege that Deutsche holds title to the Subject Property as a Trustee in a way that is not legally recognized; for a concept related to an entity that does not exist; and which would have no rights related to the property even if it did. They do so by vigilante acts under the color of law but in violation thereof, and without apparent legal standing or authority, as delineated herein, and which lack of authority is allegedly being investigated by the Attorneys General of all 50 States.
23)

Plaintiff is ignorant of the true names and capacities of defendants

sued herein as DOES 1 through 100, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will allege their true names and capacities when ascertained.
24)

Plaintiff is informed and believes and thereon alleges that, at all times herein

mentioned, each of the defendants sued herein was the agent and employee of each of the remaining defendants and was at all relevant times acting within the purpose and scope of such agency and employment to exert rights they have not possessed, using means that are not supported by law, based upon agreements that are alleged to violate law and which should have been recorded but which, if they exist at all have been concealed, to attain maximum windfall profits from property about which they have no actual, legal, claim. Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts
25)

Plaintiff received a residential loan on the Subject Property in or about 2005, from

information and belief, from Allstate Lending, secured by a deed of trust. Indymac FSB (Federal Savings Bank) alleges that they received an assignment of the Note and Deed of Trust in 2005 but have not provided evidence that they ever receive the actual Note, much less transferred it to Deutsche, and they allege that they did not in the EXHIBIT B letter from Default Escalation Specialist Claudia Mann to Peter Clark dated November 17, 2009.
26)

From information and belief, before 2008, Indymac FSB was engaged in the wholesale

acquisition of sub-prime Notes and Deeds of Trust after 2004 to attain windfall profits during a time of lax enforcement of banking regulations, and because of the wholesale nature of their actions, did not obtain the original Note and/or Deed of Trust related to said sub-prime debt, but

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instead acquired electronic representations thereof. At no time during the term of the loan was Deutsche involvement disclosed, and any such alleged involvement by Deutsche is denied.
27)

The website maintained by the Federal Deposit Insurance Corporations (FDIC) states:
On July 11, 2008, IndyMac Bank, F.S.B., Pasadena, CA was closed by the Office of Thrift Supervision (OTS) and the FDIC was named Conservator. All non-brokered insured deposit accounts and substantially all of the assets of IndyMac Bank, F.S.B. have been transferred to IndyMac Federal Bank, F.S.B. (IndyMac Federal Bank), Pasadena, CA "assuming institution") a newly chartered full-service FDIC-insured institution. On March 19, 2009, the Federal Deposit Insurance Corporation (FDIC) completed the sale of IndyMac Federal Bank, FSB, Pasadena, California, to OneWest Bank, F.S.B., Pasadena, California. OneWest Bank, FSB is a newly formed federal savings bank organized by IMB HoldCo LLC. All deposits of IndyMac Federal Bank, FSB have been transferred to OneWest Bank, FSB. (www.fdic.gov Industry Analysis Failed Banks)

28)

From information and belief, a group of investors created OneWest Bank as a holding

company to purchase Indymac FSB from the FDIC at a heavy discount. From information and belief, OneWest then liquidated Indymac FSB without first transferring the Notes/Deeds to a new entity as evidenced by the fact that no such transfer was recorded with Contra Costa County. Said liquidation thus, allegedly, eliminated any alleged secured position that said investors might have alleged in the Subject Property, as well as their ability to foreclose. OneWest then formed Indymac Loan Services (in or about 2008), a new entity that they might allege is free of the liabilities of the past, but at the same time lacked the assets of the (properly assigned) Note and deed of trust. From information and belief, the new entity thus lacked the right to collect mortgage payments on Notes and Deeds of Trust that it did not legally hold. The new entity is also alleged to lack the right or ability to foreclose legally on their deeds of trust. All of this was without notice to Mr. Clark, who continued to make his mortgage payments in good faith. From information and belief, the new company received the payments without actual right to do so. 29) Plaintiff was the victim of fraud by others, and became unable to continue to make payments on his loan in or about the end of 2008. Plaintiff thereby attempted to engage in loan modification via the directives of the website that purported to be that of IndyMac FSB (the liquidated company), however Mr. Clark received no response, so Mr. Clark engaged the services of ACORN, who reported success with the (undisclosed) new owners of IndyMac.
30)

It is alleged that OneWest, realizing their blunder related to the liquidation of IndyMac,

brought in Deutsche as an alleged third party innocent buyer in violation of Title VIII, 807, the Fair Debt Collection Practices Act 15 USC 1962e] (12). State law and the Protection of Tenants in Foreclosure Act of 2009 requires 90 Days Notice prior to any unlawful detainer
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action against tenants such as Mary Bauer (60 Days under State Law. Defendants were required to provide a Notice to Quit that would have disclosed their identity, however the evidence indicates that they did not do so, and Plaintiff was not aware of this bait-and-switch until Deutsche filed an unlawful detainer action against Plaintiff on or about March 5, 2010 during the time of the automatic bankruptcy stay in Mr. Clarks bankruptcy. 13 of Declaration of Peter Clark, Attachment iii]. 31) The Indymac Parties (OneWest and Indymac Loan Services) are Defendants in litigation in Contra Costa County (Case No CS09-03261 that must remain separate from the current litigation for the following reasons: A.) The causes of action are different B.) IndyMac Party alleged fraud falls under the jurisdiction of the trustee of the U.S. Bankruptcy Court because it occurred prior to Plaintiffs filing for Bankruptcy Protection, which petition was involuntarily converted to a Chapter 7 liquidation on or about May 6, 2010. That litigation is thus the jurisdiction of the Bankruptcy Trustee.
32)

From information and belief, OneWest created IndyMac Loan Services for the purpose

of servicing allegedly outstanding Notes that do not, in fact, appear to be outstanding because the aforementioned evidence indicates that Indymac FSB never legally transferred the Note or Deed of Trust to Indymac Loan Services prior to OneWest Bank liquidating IndyMac FSB even if IndyMac FSB ever possessed the actual Note (rather than merely an electronic representation), which does not appear to be the case (See 53-64 herein).
33)

It is alleged that the reason why OneWests attorneys did not transfer the Notes in a way

that would allow them to collect on the debt is because transferring the Notes to the new entity would have caused a taxable event proportional to the short term capital gain that resulted from their discounted purchase of the notes weeks before. Thus, it is alleged that to evade federal and State tax liabilities on their alleged liability evasion scheme, OneWest never legally transferred Indymac Banks alleged Deeds of Trust to the new entity, Indymac Loan Services. It is thus alleged that Indymac Loan Services never actually possessed the Note on the Subject Property, (even if IndyMac FSB did previously, which is denied), and thus did not have the legal standing to foreclose on said Note or to pass on rights that IndyMac did not possess to Deuteche.
34)

Of possibly equal merit, however, is the fact that OneWest/ IndyMac continued to make

false or misleading representations (in violation of Title 15, Chapter 41 Subchapter V 1692)
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that they held the Note and Deed of Trust, and that is that name in which they alleged they provided notice of a foreclosure sale of the Subject Property (which Notice was allegedly never sent, as it was never received by the debtor or the Second Deed holder -see the Declaration of Alan Kilpatrick and Peter Clark, filed and attached herewith, Attachments ii, and iii.). This is the same Note and Deed of Trust that Deutsche is now claiming to have held at the same time. 35) Deficient service of Notice is alleged to have additionally invalidated the alleged foreclosure that OneWest at first claimed as making the Subject Property Real Estate Owned of One West, but which Deutsche later claimed was instead owned by Deutsche as trustee for an alleged agreement that they have failed to put into evidence in their unlawful detainer but which does not appear to constitute a trust, partnership, corporation, or anything that could hold legal title to property even if it did legally exist, which is denied.
36)

Instead, OneWest agents pretended to engage in loan modification while their Default

Escalation Specialists facilitated foreclosure actions in secret as a key element of alleged fraud (See EXHIBIT B and 10-11 of the declaration of Peter Clark). The secrecy was maintained, in part, by their failure of notice related to an alleged Notice to Vacate, which was also never received, and allegedly never sent. (See declarations of Mary Bauer and Peter Clark, Attachments i and iii respectively).
37)

The evidence indicates that other OneWest Attorneys foresaw the problem of Indymac

Loan Services foreclosing on a Note that they had been alleging was held by Indymac Federal Bank, FSB, and as a result, conspired with Deutsche to act as an alleged Innocent Buyer of the now valueless paper in what is alleged to be a form of money laundering in violation of the Fair Credit Practices Act. This act is alleged to have only compounded their alleged tax evasion and other fraud.
38)

Deutsche is not a corporation or other limited liability entity and did not register their

fictitious name statement as required by (BPC) 17918. Their outlaw status risks the windfall profits that they are attaining by ignoring the loan modification required by California law (see press release of then Attorney General and now Governor Brown, (footnote #10, Pg. 17), and which has become the policy of all major American banks. From information and belief they do so:
a. b. to make it difficult for American Citizens to serve Deutsche with process, and/or to evade American taxes on a large portion of the gains of their enterprises.
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Post Petition Violations of Federal Authority and Due Process

39)

Plaintiff filed for Chapter 13 bankruptcy (reorganization) on February 10, 2010, and

Deutsche filed an unlawful detainer action against Plaintiff less than one month later, on or about March 5th, in prima facie violation of federal law (the Automatic Bankruptcy Stay). Plaintiff stipulated to a lifting of the stay related to the Subject Property, however case law suggests that Plaintiffs doing so did not relieve Deutsche of liability related to their violations of stay, which Deutsche greatly compounded by engaging in numerous violations of the authority of the Bankruptcy Trustee and court, as delineated further below [Declaration of Peter Clark, Attachment iii].
40)

On or about May 6th, 2010, Peter Clarks Chapter 13 reorganization was involuntarily

converted to a Chapter 7 liquidation. This act placed Mr. Clarks recognized assets and pending lawsuits under the authority of the bankruptcy trustee by the authority of the Bankruptcy Act7. This transferred all ongoing litigation to the authority of the case trustee and prevented Mr. Clark from defending himself from the Deutsches legal assaults and the Indymac Parties actions.8
41)

Deutsche and the Indymac Parties both attempted (independently) to move forward with

motions on over a dozen occasions before a half a dozen judges in the Contra Costa Superior Court related to the Subject Property in actions that were now under the jurisdiction of the Bankruptcy Trustee (See footnotes #2-4 and 7-8, herein). Mr. Clark informed Deutsch of this, however the evidence indicates that Deutsche has still not recognized the federal authority of the U.S. Trustee with the Motions and have otherwise violated due process and the authority of the Trustee and/or the Trust Estate and Mr. Clarks right to his day in court at a time when he was prevented by federal law from acting on his own behalf. [Declaration of Peter Clark, Attachment iii.]

7 8

See footnote #2, page #4. Bankruptcy Code Section 541, Title 11 U.S.C. 5411, transfers Peter Clark's property to the trust estate. Section 323 makes the Chapter 7 Trustee the estate's representative, including for purposes of litigation. Section 704 vests in the Trustee the sole authority to collect and liquidate the estate's property. In other words, conversion of the bankruptcy proceeding to a Chapter 7 liquidation removes Peter Clark as the Defendant and makes the Trust estate the Defendant instead. One of the immediate issues is the change in attorneys related to the case from Peer Clark to the attorney for the Trust estate. Due process would require a delay in any proceedings as a result of this change of attorneys alone. While the Bankruptcy Trustee has given notice that he would like to abandon the asset, in the current situation, the case exists in a netherworld in which the case is still in federal jurisdiction because the Bankruptcy Court has not yet ordered the Bankruptcy Trustee to abandon the asset, an action that by federal civil procedure would not take effect until 10 days after the order for the Indymac or Deutsche Parties to even schedule a hearing regarding the cases during this period thus violates federal authority and due process. -14-

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42)

Deutsches counsel then admitted to the court in Department 29 that it could not proceed

because the asset, and the case, was under the authority of the Chapter 7 Bankruptcy Trustee and not the Debtor. Under 11 USC 554 the bankruptcy judge must order the abandonment of the asset by the case trustee back to Mr. Clark, not of the removal of the automatic stay, which had already occurred. The Bankruptcy Court has not yet ordered the abandonment of the litigation.9
43)

Deutsche knew this, but filed a motion to remove the automatic stay, allegedly to confuse

local judges. (See footnote #s 2-4 and 7-8, herein). Deutsche knew that the problem did not relate to the automatic stay because attorney Frank Ferris provided repeated Amicus Briefs which repeatedly informed them, and the courts, of the true issues related to the required order by the bankruptcy court for the Trustee to abandon the litigation, including the cases related thereto, from the trust estate (See Attachment iv, filed and attached herewith). Deutsche engaged in ex parte communication with Judge Mills, and scheduled a hearing without notice to the Trustee. Judge Mills is alleged to have violated federal authority and due process by granting Deutsches Summary Judgment motion despite a lack of jurisdiction because of lack of standing, and despite innumerable triable issues of fact, in a hearing at which the counsel for the Trust Estate was not provided with notice (according to the Proofs of Service), and in which Mr. Clark was prevented by federal law from acting in his own defense. Judge Mills made his alleged ruling after repeated ex parte lobbying by the Deutsche attorneys and then collusion that constituted ex parte communications with the judge outside of the presence of opposing counsel. [See declaration of Alan Kilpatrick filed and attached herewith as Attachment ii.] Deutsche cannot claim that their violation of Federal jurisdiction or due process was innocent, and willful violations require sanctions, as is shown by the case law cited in 49 herein. A damages award against Deutshe is thus mandated as supported by extensive case law. Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee [11 USC 554] 44) Peter Clarks then bankruptcy attorney, Lisa Edgar-Dickman, sent notice to all creditors of the intent of the debtor to request a Court Order for the Trustee to Abandon

Abandonment is not the same thing as the automatic stay, which Mr. Clark had already stipulated to lift. Before litigation could proceed, the bankruptcy trustee must agree to litigate, or the Bankruptcy Judge must order the Trustee to release the action from the federal jurisdiction, neither of which has occurred. See Catalano v. CIR, 279 F.3d 682 (9th Cir. 2002) [An order lifting or modifying the automatic stay by itself does not constitute a de facto
abandonment of the property of the estate. Procedures under 554 must be followed before property is legally abandoned.]

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10

Asset10. The Trustee agreed to abandon the asset in or about the end of July, 2010. Peter Clark asked for a meet-and-confer regarding the matter, however the Deutsche (and Indymac) Parties refused, and continue to refuse, to meet and confer regarding a stipulation for the Bankruptcy Court to order the case trustee to abandon the asset under 11 USC 554 Instead, Deutsche moved the Bankruptcy court for an order to lift the automatic stay under 11 USC 362(a), a request that was moot because there was no stay in place at the time (See 9, 41-22, and footnote #s 2-4, herein. ). The evidence indicates that they did so to confuse the courts.
An order lifting or modifying the automatic stay by itself does not constitute a de facto abandonment of the property of the estate. Procedures under 554 must be followed before property is legally abandoned. Catalano v. CIR, 279 F.3d 682 (9th Cir. 2002).

45)

Mr. Clark, attempted to meet an confer with the counsel for the Moving Party via e-

mail twice to reach an agreement that would relieve the Contra Costa Court, and the Bankruptcy Court, of the burden of a hearing what was improperly scheduled in alleged contempt for Federal authority and in violation of due process, however opposing counsel refused to respond. The following is a transcript of the two messages, starting with the most recent, sent on August 5, 2010:
Peter Clark <2peterclark@gmail.com> to Amy Starrett Deutsch<astarrett@jandalegal.com> date Aug 5, 2010 4:20 PM subject Re: Meet and confer Amy: I am disappointed that you continue to fail to respond to my attempts to meet and confer with you. I am further disappointed in your instead attempting to move forward with a motion before the Bankruptcy Court to remove an alleged stay that did not exist, an act that greatly irritated the Judge. As you are no doubt aware now, even if you were not previously, the proper action at this juncture is the motion for the Court to compel the Trustee to abandon the asset that my (former) attorney, Lisa Edgar Dickman, filed and mailed to all of the creditors on my behalf, and which you no doubt received last month. In doing this, Mrs. Dickman and I are acting at the request of the attorney for the Chapter 7 Trustee. Mrs. Dickman also sent an e-mai to me explaining how things must proceed prior to further litigation between Deutsche Bank National Trust Company and myself, as follows: The motion to abandon I prepared was with a 21 days Notice and Opportunity of Hearing known by BK attorney as a scream or die notice. Which means if someone objects you must call Judge Jellen's clerk and set a court date, and if no one objects you submit the order after 21 days- hence the scream or die nickname. So there is no court date scheduled The notice was sent to every single creditor and I used the court matrix list. .(excerpted from e-mail from Lisa Edgar Dickman to Peter Clark dated July 31, 2010). Please note that the August 13th hearing date that your agents scheduled with Judge Mills in an ex parte appearance before Judge Mills without notice to, and thus outside of the knowledge, much less The Notice was a shout or die notice that requires objectors to make their objections known or the asset will be abandoned. -16-

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 46) 16 17 18 19 20 21 22 23 24 25

presence of opposing counsel, is also prior to the first time that I could reasonably expect the Bankruptcy Court Judge (Jellin) to sign an order to abandon. As a result, the hearing scheduled for August 13th must be removed from the calendar, and no new hearing date requested from the court until, from my understanding of Federal Rules, 10 days AFTER the Bankruptcy Court Judge signs the order. Thus, please withdraw the hearing scheduled for August 13th from the calendar immediately so that you do not place further unnecessary burdens on the court, or others that would be involved in your further transparent attempts to violate due process. Thank you in advance for your immediate attention to this matter. Peter Clark from Peter Clark <2peterclark@gmail.com> to Amy Starrett Deutsche <astarrett@jandalegal.com> date Jun 28, 2010 11:03 AM subject Meet and confer
On 6/28/10, Peter Clark <2peterclark@gmail.com> wrote: > Amy: > I am concerned about your failure to follow legal procedure, including > regarding the mandatory meet-and confer requirements of both Federal > and State civil procedure. In particular, you have not responded to > my meet-and-confer letter of June 24, 2010, and instead proceeded > with the hearing on June 25 (with my being present solely as a > witness). It was only after the recusal of two judges, three hours > later on their own that your local counsel finally agreed that your > attempting to move froward was in violation of federal law and > California Civlil Procedure. > Your local counsel then suggested an approach which differs from what > the attorney for the Chapter 7 told me was the steps that he proposed > that I take, and which I do not believe to be viable for removing the > action from the Chapter 7 Trust Estate. I thus request that you > provide me with a copy of what you propose to file BEFORE you file it, > thus complying with your meet-and-confer requirements. > Also, please advise me of when you propose to take this action. > Thank you in advance for your cooperation in this matter. > Peter Clark

Instead, Deutsche moved the Bankruptcy court for an order to lift the automatic stay

under 11 USC 362(a), a request that was moot because no stay was in place at the time. Deutsche knew this, and, it appears, they angered Bankruptcy Judge Jellin by burdening that court with unnecessary appearances that, by federal Rules of Court), they were required to at least attempt to settle by stipulation (of the actual issues) after a meet-and-confer.
47)

In a subsequent hearing the Bankruptcy Judge offered to sign an order for the Trustee to

abandon the asset, however the statutory 21-day period had not yet elapsed at the time. Before the 21-day period elapsed, two objections to the abandonment were filed with the court by third parties, preventing a stipulation on Deutsches (allegedly deceptive) motion. The evidence indicates that Judge Jellin is required by public policy to sign a comfort letter related to the removal of stay, which Judge Jellin did, but the judge did not make the order to abandon the asset because of the objections by the other creditors. Because of those objections, and because of the failure of the Deutsche and the Indymac Parties to stipulate to the abandonment
-17-

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of the asset, and because the attorney for the bankruptcy Trustee did not file an agreement to abandon with the court (according to the Clerk), even though he agreed to abandon, Mr. Clark is now forced to schedule a hearing on the issue prior to the abandonment, which hearing has not yet been held. Part of the reason that Mr. Clark did not schedule the hearing yet is because, in the interests of justice, he needs to deal with said objecting alleged creditors, one at a time, to prevent them from further interference in the orderly administration of the trust estate.
48)

Deutsches counsel then engaged in ex parte communications with Judge Mills outside of

the presence of the opposing counsel, Dennis Davis, attorney for the Trustee. Based on the proofs of service, the trustee was never served with notice of any of the dozen hearings. In proceeding, Deutche attorneys are alleged to have violated Federal Authority of the Chapter 7 Bankruptcy Trustee and due process under the color of law and thus in violation of 42 U.S.C. 1983 (See 91 and footnote #20, herein.), in an action for which Deutsche had no standing and thus the Contra Costa Court had no actual jurisdiction and for which there was numerous failures of notice, failure of due process, and a breach of justice (See Amicus Brief of Frank Ferris, filed and attached hereto as Attachment iv. The violations of 554 are alleged to be comparable to those related to 362:
In re Stainton, 139 B.R. 232 (9th Cir. B.A.P. 1992) When willful violation found, court must award debtor all reasonable fees In re Pinkstaff, 974 F.2d 113 (9th Cir. 1992) IRS liable for damages under 362(h); no sovereign immunity under 106(a), at least where IRS has filed a claim In re Bulson, 117 B.R. 537 (9th Cir. 1990), affd. 974 F.2d 1341 (9th Cir. 1992) Award of atty fees to debtor for wilful violation by IRS of stay. In re Bloom, 875 F.2d 224 (9th Cir. 1989) Standard. for finding willful violation of stay - damages and interest In re Taylor, 884 F.2d 478 (9th Cir. 1989) damages for violation - 362(h) In re Turner, 204 B.R. 988 (9th Cir. B.A.P. 1997) Municipal court judgment may be void for having been entered in violation of bankruptcy stay. In re Conejo Enterprises, Inc., 96 F.3d 346 (9th Cir. 1996) Bankruptcy court did not abuse discretion in failing to lift stay to allow remanded state court action to go forward where claimant filed a proof of claim.

In the current case, Deutsche is alleged to have violated the Bankruptcy Act in several ways to deny due process to Mr. Clark regarding Mr. Clarks home at a time when the Attorneys General of all 50 states are now investigating the practice of banks complained about herein, and at a time when Bank of America stopped ALL foreclosures for one of the reasons present in the current case, See EXHIBIT J.

VIOLATIONS OF NON-BANKRUPTCY LAW

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49)

On October 08, 2010, on the same day that Bank of America announced a halt to

foreclosures in all fifty states, California then Attorney General and now governor Edmond G. Brown Jr. called on the state's other lenders to halt foreclosures until the banks demonstrate that they are in compliance with state law11. According to Attorney General Brown, state law requires that lending institutions not only engage in loan modification in good faith, but also actively solicit such a service to their clients who are in need. The Attorney General and now Governor Brown stated that lenders cannot foreclose if they have not complied, and IndyMac did not. 12
50)

However Deutsches violations of law in their pretense to have received legal title to Mr.

Clarks home are alleged to be far more extensive than that, including the violations set forward in the opening paragraphs of this Complaint. It is alleged herein that those associated with Deutsche have conspired to engage in an artifice opposite to the laws and public policies of both the State of California and this nation as part of a pattern of racketeering. The evidence indicates that IndyMac FSB and thus Deutsche Bank AG (the Frankfurt Germany parent company) and others began their violations approximately a decade ago with the CIS securitization of Notes (scanning them into computer memory and e-mailing rather than handling the physical document as required by law) by lenders that began the undoing of the checks and balances that once provided the foundation for the loan securitization that served this nation so well for decades. In so doing, Deutsche and IndyMac are alleged to have instigated measures that, while making more profits for them in the

11

Attorney General Jerry) Brown issued the following News Release related to other reasons why Deutsches alleged foreclosure is void and why Deutsche cannot prevail in their unlawful detainer (underlines added for emphasis): Brown Calls on Banks to Halt Foreclosures In California [http://ag.ca.gov/newsalerts/release.php?id=2000]
SAN FRANCISCO - Following his office's negotiations with the state's top loan servicers and today's announcement by Bank of America that it is temporarily halting foreclosures nationwide, Attorney General Edmund G. Brown Jr. today called on the state's other lenders to halt foreclosing on California homes until the banks can demonstrate that they are complying with state law."All lenders should halt foreclosures until they clear up this mess and ensure that the process is fair and complies with California law," Brown said. "Bank of America has taken an important step, and the other major lenders should follow its lead." California law prohibits lenders from recording notices of default on mortgages made between January 1, 2003 and December 31, 2007, unless, subject to limited exceptions, the lender contacts or tries diligently to contact the borrower to determine eligibility for a loan modification. A notice of default must include a declaration of compliance with California law. In the past few weeks, Brown's office has been in discussions with Bank of America, Ally Financial, JP Morgan Chase, Wells Fargo and OneWest to ascertain whether they are complying with California law. Brown's office has called on those banks to show they are complying with state law before continuing with foreclosures. JP Morgan Chase, the nation's third largest loan servicer, Ally Financial and One West have admitted that employees approved and signed foreclosure documents without first fully reviewing the borrowers' loan files. As a result, those borrowers lost their homes based on affidavits the bank never confirmed were accurate. Ally Financial and JP Morgan have suspended foreclosures in 23 other states that, unlike California, require a court order for foreclosures. Contact: (510) 622-4500 [http://ag.ca.gov/newsalerts/release.php?id=2000]
12

Because Deutsche is not incorporated and thus mot granted limited liability, the parent company and all officers can be held directly liable for any damages, together will all attorneys that have played a role in the fraud. -19-

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short term, have broken the chain of the Note transfers. 13 This break in the chain of Note transfers is alleged to eliminate their equity and ability to foreclose legally as delineated further herein, thus inducing them to engage in the further violations of law complained about herein.
51)

In 2007, Deutsche is alleged to have attempted to further increase profits with a nation-

wide eviction mill process by foreclosing on and evicting fourteen of their clients at the same time in Federal District Court in Cleveland Ohio (In Re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007). 14 In that case, U.S. District Court Judge, C.A. Boyko saw the consistent pattern of violations of law regarding the chain-of-transfer of trust deeds. (see EXHIBIT F). As a result, Judge Boyko ruled to dismiss Deutsches claims to take possession of ANY of the 14 homes that Deutsche claimed due to Deutsches lack of standing. Because the same chain-of-title and standing issues have been decided against Deutsch in14 out of 14 times, the Ruling applies regarding the Subject Property by collateral estoppels15.
52)

Specifically, Judge, C.A. Boyko and other judges since then have ruled that Deutsche and

other banks lack standing to engage in foreclosure proceedings if they do not possess the original Note and Deed of Trust, With In Re Foreclosure Cases, Judge, C.A. Boyko opined that, "[t]o show standing in a foreclosure action, . . . the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed
A security interest cannot exist independent from the obligation that it secures. In Re Leisure Time Sports, Inc., 194 B.R. 859, 861 (9th.Cir.Bap 1996). A security interest cannot exist, much less be transferred, independent from the obligation which it secures. In re DiSanto & Moore Associates, Inc., 41 B.R. 935, 938 (C.D.Cal. 1984); Union Supply Co. v. Morris, 220 Cal. 331, 338-39, 30 P.2d 394, 397 (1934). The security interest follows the debt. Id. If the debt is not transferred, neither is the security interest. Id. The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it,
13

19 20 21 22 23 24 25

Banks engaged in this process so that they could process Notes in bulk as a way to reduce costs and thus increase profits as delineated further in the ensuing paragraphs. However by undoing the safeguards early in the 000 decade and arranging for bank regulators to turn their backs on their oversight of the finance industry after 2001, the lending industry is alleged to have set up the situation that allowed them the free reign to engage in the fraud that they are since alleged to have engaged in, as partially delineated herein. 14 With In Re Foreclosure Cases, Federal District Court Judge Boyko overturned fourteen of fourteen attempted foreclosures and evictions attempted by Deutsche Bank National Trust Company for lack of standing under a condition substantially identical to one of the conditions present in the current case regarding Deutsche as Trustees misrepresentations of evidence as part of an alleged massive fraud against American citizens who are protected by the guarantee of due process provided by the United States Constitution. Thus any of the Subject Property that Deutsche might hold is held in Constructive Trust. 15 From information and belief, OneWest attempted to avoid the problem by engaging in an agency relationship with Deutsche to provide the illusion that Deutsche was a bona fide third party purchaser at a time when banks are known to not be buying the notes of other banks. Deutsche kept this alleged bait-and-switch concealed by several further violations of notice requirements that would have had to be met for legal transfer of the ownership, and for their unlawful detainer action to prevail legally. Judge Boykos decision has been echoed all over the country. -20-

COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53)

while an assignment of the latter alone is a nullity. Carpenter v. Longan, 83 U.S. 271 (1872). It is well established that a plaintiff must prove standing by showing: (1) injury in fact; (2) a causal connection between the injury and the defendant's conduct; and (3) a likelihood that a favorable outcome will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Knowing this, One West is alleged to have engaged in an agency relationship with

Deutsche to provide the illusion of a bona fide third party purchaser of the Notes and Deed of Trust on Plaintiffs home of thirty years at a time of economic disruption of such unprecedented proportion that banks are known to not be buying the junk paper notes of other banks. Indeed, American Banks were being tightly controlled to insure that they would not pick up more junk paper. This would explain why One West went to Deutsche to complete their (alleged) fraud. It does NOT explain how Deutsche would have been able to do this while receiving $6 Billion dollars in TARP money despite the contrary stated intent of members of Congress in creating the legislation. In short, it appears that Deutsche has acted in contempt for American laws and the civil rights of Americans at every step of the way.
54)

As previously delineated (33-34, 44-49, etc.) Deutsche has shown no ACTUAL

evidence that Indymac ever received the underlying promissory note in the first place, or even that IndyMac ever received said Note from Allstate as they claim, much less assigned it to Deutsche prior to OneWest dissolving Indymac, and with that dissolution, their ability to assign the note or legally foreclose. Indeed, the evidence indicates that Deutsche Bank AG was not operating under the fictitious name of Deutsche Bank National Trust Company in 2005, when they now claim to have made an agreement that is not a trust agreement, but which allegedly has Deutsche as a Trustee. Instead, the evidence indicates that they were operating under the name Deutsche Bank Americas. It is no wonder that they refuse to provide any foundation for their claim. In fact, the evidence seems to show that Deutsche AG has never had a de jure interest in the Subject Property under any assumed name (and never filed a fictitious name statement for any entity or had standing to sue or evict Mr. Clark or his elderly tenant for those reasons as well.
55)

From information and belief, Deutsche did not have legal possession of the Note at the

time of the alleged foreclosure. Indymac FSB was the legal foreclosing entity, but IndyMac did not exist at the time of the foreclosure. However OneWest Bank/Indymac Loan Services alleged that they foreclosed on their own behalf. They did so as late as the November 17, 2009 letter from Default Escalation Specialist, two weeks after the November 4, 2009 date that Deutsche
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now claims that they foreclosed instead in their post-petition allegations in their unlawful detainer filing that violated the automatic bankruptcy stay, and in their Summary Judgment motion which they prosecuted in alleged violation of the authority of the case trustee and Mr. Clarks civil rights.
56)

No actual standing for unlawful detainer: Deutsche is not a Corporation or an entity

that has complied with the Business and Professions Code (BPC) 17918 by filing a fictitious name statement and thus they cannot maintain any action in any court in California 16
57)

Deutsche thus has no actual rights to sue or move forward any action in any court. Nor

is the non-entity agreement with a liquidated former entity for which they allege to be Trustee, and their actions with agents is alleged to violate both Federal banking laws and State laws. 58) Deutsche argues that these issues cannot be considered in an unlawful detainer case, however case law supports Mr. Clarks position that the question of jurisdiction is always a matter that must be considered, and that any judgment rendered without jurisdiction by a court is void.
59)

Deutsche argues that they are exempt from state laws by their federal charter, however

this is simply not the case. To the contrary. Federal Office of Comptroller of Currency Regulations- Provided herewith as EXHIBIT D show that Deutsche Banks allegation that their federal charter exempts them from complying with state business laws is false, yet anther example of their bravado to violate state and federal law under the color of federal law.
60)

In fact, EXHIBIT D shows that Federal Charter Banks are required to act as if they are

state chartered banks and otherwise comply with all requirements to do business in a state. This includes filing a Fictitious Business Name statement. States are merely prohibited from adding any additional requirements to a federal charter bank that are not required of a state charter bank. In addition, the Office of the Comptroller of Currency has not approved Deutsche operating in Contra Costa County.
61)

The evidence indicates that OneWest, realizing that Indymac could not legally act after it

was liquidated, brought in Deutsche Bank as an alleged innocent buyer of the subject property in apparent direct violation of the letter and intent of the Fair Debt Collection Practices Act Title
Business and Professions Code (BPC) 17918 fictitious name filing:17918. No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter. If this current action does not succeed in sorting out the mess, a Quiet Title action may be required per California Code of Civil Procedure 760.10-760.060. -2216

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VIII, 807). (15 USC 1962e] (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. Their false pretense is verified by the alleged Trustees Deed Upon Sale (Plaintiffs EXHIBIT A to Deutsches Summary Judgment Motion), which states as its first statement The grantee herein (Deutsche) IS the foreclosing beneficiary.
62)

The alleged title-holder (per an alleged Trustees Deed) is Deutsche Bank National

Trust Company as Trustee for...an agreement with a company that no longer exists. Yet Deutsche as Trustee has not placed into evidence the agreement that they allege owns the asset, or any documents related thereto, and the evidence indicates that they did not record it with the county, a necessary step if the alleged agreement is to have such a profound potential effect on the title to the property. As previously delineated, Deutsche is claiming title for an agreement with a liquidated entity in a way not legally recognized in California.
63)

The evidence thus indicates that Deutsche has engaged in their violations of unlawful

detainer law and due process in summary judgment by bringing forward their action against Mr. Clark without apparent standing because they knew that they could not win in their alleged fraud if they followed the law. Thus, Deutsche agents are alleged to have acted under the color of law in a conspiracy to violated the law, and thus in violation of Section 1983. 64) Deutsche would like that none of this be considered prior to an unlawful detainer action, in which they allege that the law assumes that their actions are without fault because they say so. To the extent that local courts have gone along, they are alleged to have violated the civil rights of American citizens related to their homes- the sort of thing that led to the American Revolution.
65)

At the time that Defendants now allege that Deutsche foreclosed on Plaintiffs home,

Indymac Loan Services and One West Bank were alleging that Indymac /One West Bank took ownership of the Subject Property as Real Estate Owned (REO) by Indymac/One West Bank on October 20, 2009, as shown by the last paragraph of the EXHIBIT B1 letter that Mr. Clark received dated November 17. 2009 (one month after Defendants now allege that Deutsche Bank took the property in foreclosure. One West Bank repeated their claims in a letter dated December 13, 2010. 12 of the (revised) declaration of Peter Clark (EXHIBIT ). 66) Both of Defendants stories cannot be true, and thus one must be false. By the legal principle of false in one, false in all, (Falsus in uno, falsus in omnibus), the entire house of cards
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of these alleged transactions must be ruled to be fraudulent, as, indeed, it has been for Deutsche and IndyMac on numerous occasions across this country since 2007.
67)

Further, Deutsche has not shown any evidence that they have any actual rights under

State law, which requires them to file a fictitious name statement prior to :maintaining any action in any court. Thus, it appears that Deutsche is an outlaw foreign money pool that received $6 Billion dollars in stimulus money despite the intent of Congress that such money should only go to American corporations, all while, the evidence suggests, refusing to incorporate or file a fictitious name statement as a means for evading U.S. taxes. In Re Foreclosure Cases shows that Deutsche had no right to foreclose or evict (52-56, herein.), and In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008) shows that Deutsche would be without standing even if they were a corporation that paid taxes and adhered to the requirements of the State of California for doing business in this state (including filing a fictitious name statement) (88, herein.). No other Federal Charter Bank (such as Wells Fargo) alleges that their Federal Charter exempts them from such requirements, and such an assertion of Federal authority into the business of the State would violate the 11th Amendment, something the State of California would have never knowingly allowed. The fact that Deutsche has gotten away with it by their bravado in the past does not make their actions legal. 68) However, Mr. Clark would be injured if Deutsches unlawful detainer action were granted because Deutsche seeks to evict Mr. Clark from his home, office, and workshop at a time of tremendous economic disruption caused by Deutsche and their ilk by these and similar violations of law under the color of law. Instead, Mr. Clark needs to re-organize his business affairs after being driven into the current bankruptcy by a massive fraud in the tens of millions of dollars by the law offices and attorneys that he had hired to prevent such fraud.
69)

"[t]o show standing in a foreclosure action, . . . (Deutsche) must show that it is the

holder of the note and the mortgage at the time the complaint was filed [and] . . . that the holder of the note and mortgage is harmed, usually by not having received payments on the note") In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007). However Deutsche has never alleged that it was owed payments on the note, and the evidence indicates that they are not. Thus, Deutsche has an uphill battle to demonstrate in a way that they could not so far that Deutsche held the promissory note at the time of the alleged foreclosure. If Deutsche cannot
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show these things, it has no injury in fact, and they have not provided evidence that this is the case so far.
70)

A more recent court decision came down in California on May 20, 2010, in a bankruptcy

case in the Eastern District of California known as In re Walker, Case no. 10-21656-E11. In that case, the court held that MERS, who alleged standing, could not foreclose because it was a mere nominee; and that as a result, plaintiff Citibank (C) could not collect on its claim. The judge opined:
Since no evidence of MERS ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law. In re Walker, Case no. 10-21656-E11- in the Bankruptcy Court of the Eastern District of California (underline added). The text of the ruling is provided by EXHIBIT L. 71)

In support, the judge cited In Re Vargas (California Bankruptcy Court); Landmark v.

Kesler (Kansas Supreme Court); LaSalle Bank v. Lamy (a New York case); and In Re Foreclosure Cases (the Boyko decision from Ohio Federal Court). The court concluded:
Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case. (underline added). 72)

With In re Walker, MERS could not foreclose, in part, because it was a mere nominee- the

same net result of the allegedly illegal acts perpetrated by Deutsche. Such nominee status is verified by the fact that Deutsch claims to hold title as Trustee. However with In re Walker, MERS, and Citibank, could at least point to a separate, legitimate entity that was created for the sole purpose of serving in the role of an alleged nominee, In the case of Deutsche, no such rationalization theory has been offered. It is alleged that for an agent of Deutsche to concoct such a theory at this juncture would only make the concoctor an accessory after the fact in a situation where anyone involved in exacerbating the damages can be held personally responsible because of the absence of corporate limitations on liability in this case. 73) The broad impact the case could have on California foreclosures is suggested by attorney Jeff Barnes, who writes:
This opinion ... serves as a legal basis to challenge any foreclosure in California based on a MERS assignment; to seek to void any MERS assignment of the Deed of Trust or the note to a third party for purposes of foreclosure; and should be sufficient for a borrower to not only obtain a TRO [temporary restraining order] against a Trustees Sale, but also a Preliminary Injunction barring any sale pending any litigation filed by the borrower challenging a foreclosure based on a MERS assignment. (http://seekingalpha.com/article/221344homeowners-rebellion-could-62-million-homes-be-foreclosure-proof).
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74)

Indymac alleged as late as December 13, 2010 that they engaged in a foreclosure action

against the Subject Property on October 20, 2009, not November 4, as Deutsche alleges. With this December 13, 2010 letter, Indymac Escalation Specialist Brandi Levy reiterated what One West Bank Default Escalation Specialist Claudia Mann stated on Nov.17, 2009, that IndyMac/OneWest foreclosed and took the property for themselves as an REO (Real Estate Owned), as shown by the EXHIBIT B letter from Claudia Mann. However Deutsche alleges that they engaged in a foreclosure action on November 4, 2009, with the Trustee transferring the property directly to Deutsche-as-Trustee, not via IndyMac. A regular property transfer deed would have been required for these stories to be stretched to appear true, and thus both must be ruled to be false.
75)

Indymac has alleged since 2005 that it is they that bought the Note and Deed of Trust on the

Subject Property from Allstate. Mr. Clark made mortgage payments to IndyMac for over three years, then attempted to engage in loan modification for a year with those claiming to be IndyMac, who never mentioned Deutsche. In her letter dated November 17, 2009 (filed herewith as EXHIBIT B), OneWest/IndyMac Default Escalation Specialist Claudia Mann reported that IndyMac foreclosed and held Mr. Clarks home as Real Estate Owned of IndyMac. But on March 5th, 2010, Deutsche claimed in the unlawful detainer action that they filed against Mr. Clark and his elderly tenant that it was they who foreclosed, not Indymac, and that they actually held the Note since 2005, all without showing any documentary evidence of such. 76) Thus, Deutsches (post petition) claims are contrary to the evidence available to Mr. Clark prior to his bankruptcy filing on February 10, 2010, and now. Thus, Deutsches claims are alleged to be without standing or foundation on several other levels beyond what the Attorneys General of all fifty states might be investigating.
77)

However IndyMac had at least a linear rationale for claiming that they had authority.

Deutsche clearly had no standing. Deutsches actions to acquire alleged title and possession are without actual foundation or notice, and are thus void for lack of standing and collateral estoppels as delineated previously and below (see 20-39) herein and reference In Re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007 and In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008) (88, herein.), Clearly, the alleged foreclosure and title transfer process, which is supposed to be dictated by documented events, facts, and law, was in fact so arbitrary, capricious, and false that different Deutsche associates claimed authority to
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state contradictory things regarding who was alleged to hold title to the subject Property after the alleged foreclosures, clearly an impossibility under law. In fact, the evidence indicates that the two teams of Deutsche associates made it up as they went along.
78)

Deutsches previously secret bait-and-switch of ownership interests to provide the illusion

that they are an innocent buyer of the Note and/or Deed of Trust on the Subject Property is alleged to violate the letter and intent of 15 USC 1962e] (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. It also appears to violate Title VIII, 807, False or misleading representations]. (Fair Debt Collection Practices Act).
79)

Until the 2007 Boyko decision, Deutsche associates enjoyed the illusion of immunity

from the legal consequences of their acts to exact windfall profits by violations of law under the color of law. However the evidence now indicates that Deutsches acts constitute a pattern of racketeering in violation of the RICO Act [18 U.S.C. 1962 (c) and 1962(d). The evidence indicates that Deutsche did not enact their fraud until after Mr. Clark filed for bankruptcy on February 10, 2010. Deutsche then did so by filing an unlawful detainer action on or about March 5, 2010 against Plaintiff and his elderly tenant, Mary Bauer (Ms. Bauer), to evict Plaintiff and Ms. Bauer from their homes under the color of the unlawful detainer laws of the State of California and summary judgment thereto but in violation thereof.
80)

Deutsche and those acting in agency relationship knew of the violations, and there is no

sovereign immunity granted even to state court judges who act under the color of law but in violation of Federal authority (the Bankruptcy Act), Due Process (14th Amendment), and thus civil rights as supported by Ex parte Young, 209 U.S. 123 (1908), and the clear intent of Congress in enacting 42 U.S.C. 1983 to facilitate litigation as an exception to the federal antiinjunction statute, 28 U.S.C. 2283 (cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669). It is clear from the legislative debates surrounding passage of 1983's predecessor that the Act was
intended to enforce the provisions of the Fourteenth Amendment 'against State action, . . . whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (emphasis supplied)- Justice Stewart for the Majority Opinion in Mitchum v. Foster, 407 U.S 225, 92 S.Dt., 32 .Ed.2d 705 (1972). 81)

The proofs-of service show that Deutsche moved forward with their summary judgment

in ex parte hearings without serving the opposing counsel, much less in the presence of opposing counsel, and thus in violation of Rules of Court and Bar Rules. Summary Judgments
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requires that there be no triable issues of fact (California Rules of Court: Article 5, 3.1350 et seq., and California Code of Civil Procedure 437c). Yet according to the sworn statement of observer Alan Kilpatrick, Judge Mills acted as if in collusion with the Deutsche attorney, ignoring lack of jurisdiction, substantial defenses, and triable issues of fact that Mr. Clark had previously pled, and ordered summary judgment, all in the absence of opposing counsel. (See declaration of Alan Kilpatrick (Attachment ii), and EXHIBIT A, Separate Statement Of Undisputed Facts of Peter Clark.)
82)

However the Contra Costa County Sheriff refused to execute the writ from

information and belief because of the violations of due process are prima facie. See declaration of Jamie Darlington, Attachment v. 83) The Plaintiff submits that the Sheriffs refusal to execute the writ is evidence that: a. What Mr. Clark alleged in his Summary Judgment Opposition were incurable defects in the alleged Deutsche service and pleadings are, in fact, prima facie. b. Triable issues of fact existed that precluded summary judgment even if the defects in the alleged Deutsche service and pleadings were curable (which is denied). c. Deutsches alleged violations of Mr. Clarks civil rights and due process by their alleged malicious prosecution in the Contra Costa Courts cia ex parte actions outside of the presence of opposing counsel resulted in a breach of justice that would have been tragic except for the fact that lawsuits filed under federal laws such as those cited herein have made the Sheriffs Department sensitive to civil rights and due process issues, a role that it appears the Contra Costa Superior Court is neglecting.
The function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. [Citation.] (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Page 1- A of transcript cited below. A. A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (437c, subd. (p)(2).) [2010 State Bar of California 83rd ANNUAL MEETING Page 3- A of transcript of Program #80 Summary Judgment: Recent Developments and the View From the Bench Friday, September 24, 2010 4:15 PM - 5:15 PM Sponsored by Litigation Section DEFENSE MOTIONS FOR SUMMARY JUDGMENT Justice Rick Sims March, 2010 2010 by Rick Sims] 84)

This was not the end of the Deutsche violations of due process, as is shown in Further

23 24 25

Violations of Law (pg. 33,98-104, herein) The evidence indicates that the fraud and other violations of law delineated herein are typical of the massive fraud that Deutsche is perpetrating against homeowners across the United States. Some of the above violations are now being
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17

investigated by the Attorneys General of all fifty states as announced on October 13th, 2010. This is now part of a criminal investigation according to the Washington Post (October 19, 2010) as shown by EXHIBIT G filed herewith. Mr. Clark attempted to submit information regarding Deutsche actions through the office of the California Attorney General, but was referred to the Federal Reserve for the investigation. On December 16, 2010, Mr. Clark received a letter from the Federal Reserve Bank of New York dated Dec. 14th, as follows:
Dear Mr. Clark: I acknowledge receipt of your consumer complaint against Deutsche regarding issues with your home mortgage loan, which was forwarded to this Reserve Bank by the Federal Reserve Consumer Help. However, upon further investigation, it has come to our attention that the institution servicing the loan in question is One West Bank. Since this institution, One West Bank is subject to the supervisory jurisdiction of he Office of Thrift Supervision, we are unable to investigate the issues you raise. Therefore, you should contact the agency at: OTS 1700 G Street, NW, Washington, DC 20552 (See EXHIBIT R for a true copy) (Signed: Charles J. Sanders. Senior Bank Examiner, Legal and Compliance Risk (underline added)

Thus, in this one paragraph, the Federal Reserve Examiner verified the fundamental premise of Mr. Clarks case against Deutsche: I. The alleged Trustees Deed listing Deutsche as the foreclosing entity contains numerous factual errors and is void. II. Deutsche never had any rightful claim to the Subject Premises, is not the real party at interest, and thus has no standing to take any of the actions that they have attempted regarding Peter Clark or the Subject Premises. III. Deutsches claims are fraudulent. IV. The evidence indicates that by their filings, Deutsche Agents have violated numerous State and Federal codes, statutes, and Constitutional provisions listed in s 1-4, supra.
85)

Deutsches violations of law and due process are alleged to fit the legal description of

extortion as well as money laundering as defined by the Comptroller of Currency. 17 The money laundering alone is alleged to void the note and deed of trust that attorneys that claim to represent Deutsche claim that Deutsche acquired without showing evidence that Deutsche did so prior to the alleged foreclosure, a necessary step under law as delineated herein.
86)

The illegality of Deutsches artifice additionally invalidates the title that Deutsche claims on

the subject property for the additional reason that the Notice that OneWest agents allege was served on Mary Bauer (at the wrong address, and NOT to Peter Clark, and NOT to both residential addresses on the subject property) listed Indymac, and not Deutsche, as the foreclosing note holder. Yet Deutsche now claims that they were the foreclosing note holder,
This case also has elements of violation of the Bankruptcy Act and other federal statutes; unlawful taking under the color of law (extortion); and violations of due process during the time of the Automatic Bankruptcy Stay of Mr. Clarks Bankruptcy filed February 10, 2010, as supported by Peter Clarks declaration filed and attached herewith. -29-

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thus rendering the Notice void, and additionally invalidating the foreclosure. In fact, the evidence indicates that neither Deutsche nor Indymac actually held the Note at the time, as previously delineated, and thus neither had actual standing to foreclose or to evict..
87)

However even if Deutsches claims were true, in alleging that they hold title as a

Trustee for an agreement with a company that no longer exists, Deutsche would also not be the real party in interest in their unlawful detainer action pursuant to Rule 17 of the Federal Rules of Civil Procedure as supported by In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal., 2008), A joinder with the actual owner is required by Rule 19 (ibid.), and In re Kang Jin Hwang would give rise to uncertainty about who that owner is even without

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the uncertainty about the questionable legal status of Deutsche as Trustee for a non-existent Trust, (See also EXHIBIT J, containing a copy of In re Kang Jin Hwang). These due process issues are additional legal principles that Deutsche is alleged to have violated.
88)

In short, the evidence indicates that Deutsche: A). is not a bona fide buyer of the Note or

Deed of Trust on the Subject Property; B.) did not follow legal procedures in an alleged assignment of a deed of trust or in foreclosing; and C.) did not actually possess the right to foreclose. Nor (D.) did the Trustee comply with all applicable statutory requirements of the State of California (or) perform all duties required by the Deed of Trust (by) sending a Notice of Default and Election to Sell within ten days after its recoding and a Notice of Salein compliance with California Civil Code 2924(b) as Deutsche Bank alleges in their unlawful detainer action to evict Plaintiff and his frail and elderly tenant from their home in further violation of The (federal) Protecting Tenants at Foreclosure Act of 2009, requires the new owner to give ACTUAL notice to tenants at least 90 days before an eviction. Deutsches attempts at eviction, taken as part of what now can be seen as a conspiracy to defraud by agents who claim to represent Deutsche, are thus further void as a result.
89)

From information and belief, Deutsches artifice is intended to provide the illusion that it

was they, and not IndyMac, that purchased the Note and Deed of trust that Mr. Clark made payments on in good faith for over three years. In doing so, it appears that Deutsche is acting in a role similar to MERS (Mortgage Electronic Recording Service), an electronic recording

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18

system devised by and for the convenience of the mortgage industry to save recording fees and other costs. 18 90) MERS is, according to its website:
... an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans

Or as Karl Denninger puts it:

MERS own website claims that it exists for the purpose of circumventing assignments and documenting ownership! http://seekingalpha.com/article/221344-homeowners-rebellion-could-62million-homes-be-foreclosure-proof 91)

The evidence thus indicates that the banks that created MERS did so to replace the

recording functions provided by California County Clerks as well as title insurance companies, and thus eliminate the fees taken by both. The process engaged in by MERS allowed a securitization of mortgages behind a veil of anonymity that allowed considerable shuffling of mortgages, allegedly illegally, and allowing the abuses alleged herein19. The result cheated local
MERS was developed in the early 1990s by a number of financial entities, including Bank of America, Countrywide (CFC), Fannie Mae (FNMA.OB), and Freddie Mac (FMCC.OB), allegedly to allow consumers to pay less for mortgage loans. That did not actually happen, but what MERS did allow was the securitization and shuffling around of mortgages behind a veil of anonymity. The result was not only to cheat local governments out of their recording fees but to defeat the purpose of the recording laws, which was to guarantee purchasers clean title. Worse, MERS facilitated an explosion of predatory lending in which lenders could not be held to account because they could not be identified, either by the preyed-upon borrowers or by the investors seduced into buying bundles of worthless mortgages. As alleged in a Nevada class action called Lopez vs. Executive Trustee Services, et al.: Before MERS, it would not have been possible for mortgages with no market value ... to be sold at a profit or collateralized and sold as mortgage-backed securities. Before MERS, it would not have been possible for the Defendant banks and AIG to conceal from government regulators the extent of risk of financial losses those entities faced from the predatory origination of residential loans and the fraudulent re-sale and securitization of those otherwise non-marketable loans. Before MERS, the actual beneficiary of every Deed of Trust on every parcel in the United States and the State of Nevada could be readily ascertained by merely reviewing the public records at the local recorders office where documents reflecting any ownership interest in real property are kept... After MERS, the servicing rights were transferred after the origination of the loan to an entity so large that communication with the servicer became difficult if not impossible... The servicer was interested in only one thing making a profit from the foreclosure of the borrowers residence so that the entire predatory cycle of fraudulent origination, resale, and securitization of yet another predatory loan could occur again. This is the legacy of MERS, and the entire scheme was predicated upon the fraudulent designation of MERS as the "beneficiary" under millions of deeds of trust. [http://seekingalpha.com/article/221344-homeowners-rebellion-could-62-millionhomes-be-foreclosure-proof] By Ellen Brown, who developed her research skills as an attorney practicing civil litigation in Los Angeles. In Web of Debt, her latest book, she turns those skills to an analysis of the Federal Reserve and the money trust. She shows how this private cartel has usurped the power to create money. By not filing a fictitious name statement, Deutsche also appears to seek the freedom to act as the law anonymity from repercussions enjoyed by MERS, but without the credibility that MERS has enjoyed until recently. 19 In State of California ex rel. Barrett R. Bates, filed May 10, 2010, the plaintiff qui tam sued on behalf of a long list of local governments in California against MERS and a number of lenders for wrongfully bypass[ing] the counties recording requirements; divest[ing] the borrowers of the right to know who owned the promissory note ... ; and record[ing] false documents to initiate and pursue non-judicial foreclosures, and to otherwise decrease or avoid payment of fees to the Counties and the Cities where the real estate is located. The complaint notes that MERS claims to have saved at least $2.4 billion dollars in recording costs, meaning it has helped avoid billions of dollars in fees otherwise accruing to local governments. The plaintiff sues for treble damages for all recording fees not paid -31-

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governments out of their recording fees (allegedly to the tune of billions of dollars), and defeated the purpose of the recording laws, which was to provide an unbiased third-party verification in the public record of real estate transactions and thus a clean title guarantee to purchasers20. This set up the alleged abuse via illegal acts under the color of law that is alleged herein, where Deutsche behaves as if they are above the law on the apparent theory that clients have no redress. However Deutsche has not provided evidence that they have taken the steps necessary for the MERS-like assignments even if the MERS process were legal, which is also denied
92)

California County Clerks are independent of the banks, while MERS (and Deutsche, the

alleged cut-rate MERS wanna-bes) have no such independence. The conflict-of-interest of these financial institutions taking on an oversight role regarding properties in which they are attempting to grab an interest is glaring, and invited the abuse complained of herein. 93) Foreclosure laws in California and other non-judicial foreclosure states have walked the razors edge regarding constitutionality, relying on the public disclosure provided by document recording laws as well as the integrity of independent title insurance companies to provide at least a semblance of due process and thus constitutionality to the procedures used by banks in taking the property of their clients. These civil rights have otherwise been protected ever since the 13 colonies rejected and ejected the authority of King George in 1776. However the attempts by financial industry to privatize the document recording (and public disclosure) function of the county recorders via MERS (and Deutsche as Trustee) removes all semblance to due process and thus constitutionality from the foreclosure process in non-judicial states such as California. 94) In fact, the evidence provided herewith indicates that the banking industry abused the (allegedly illegal) rights that they asserted for themselves almost immediately, in a process of alleged corruption that in earlier times might have taken a decade or more to unfold, but which in the current situation became an instant feeding frenzy that invited the other alleged illegal acts.

during the past ten years, and for civil penalties of between $5,000 and $10,000 for each unpaid or underpaid recording fee and each false document recorded during that period, potentially a hefty sum. Similar suits have been filed by the same plaintiff qui tam in Nevada and Tennessee. http://seekingalpha.com/article/221344-homeowners-rebellion-could62-million-homes-be-foreclosure-proof 20 It appears that there will be a cloud on the title to virtually all property that has been foreclosed on with mortgages made in the United States since approximately 2003. -32-

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95)

On July 26, 2010, a class action was filed in Florida seeking relief against MERS and an

associated legal firm for racketeering and mail fraud. The suit alleges that the defendants used the artifice of MERS to sabotage the judicial process to the detriment of borrowers; that to perpetuate the scheme, MERS was and is used in a way so that the average consumer, or even legal professional, can never determine who or what was or is ultimately receiving the benefits of any mortgage payments; that the scheme depended on the MERS artifice and the ability to generate any necessary assignment which flowed from it; and that by engaging in a pattern of racketeering activity, specifically mail or wire fraud, the Defendants ... participated in a criminal enterprise affecting interstate commerce. Such claims apply doubly against Deutsche. 96) In allegedly attempting to assert that Deutsche holds a position similar to that which MERS holds but without providing any evidence that they do, Deutsche is also alleged to have engaged in the scheme depended on artifice and the ability to generate any necessary assignment which flowed from it, however Deutsche has shown no actual evidence that it has actually acted in such a role, even if such a role were legal, which is denied. Further Violations of Law
97)

Deficient Service: Contrary to Deutsche Banks allegations in their unlawful detainer,

the trustee for the Deed of Trust did not provide the required Notice of Sale {See declaration of Alan Kilpatrick, filed and attached herewith), nor was Mr. Clark. In addition, Mr. Clark was NOT served with Notice to Quit (nor was his tenant, Mary Bauer, as shown by their declarations.21
98)

Deficient Notice: Contrary to Deutsche Banks claim in their unlawful detainer

Summary Judgment Motion against Mr. Clark, Mr. Clark denies that a notice to vacate was posted on the Property on 11/25/2009. Mr. Clark did not see the alleged posting, nor did the tenant. In addition, upon information and belief no notice to vacate was mailed to Mt, Clark or to his tenant. Declarations of Mary Bauer and Peter Clark both state they never received notice. The notice attached as Defendants Exhibit B to their unlawful detainer only lists Mary Bauer, tenant, with an improper address, when Defendants knew from the loan modification and from their ongoing communications that the property was owner-occupied at a different address. In
21

Mr. Clark did not learn that Deutsche Bank alleged that they were the new owner of his home until after March 5, 2010, when Mr. Clark received a notification from the Contra Costa Courts that Deutsche Bank had filed an Unlawful Detainer case against him and his frail and elderly tenant in which Deutsche allege that they had provided notice 90 days before. -33-

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fact, the only reason that Deutsche could have known the identity of Mary Bauer is because Mr. Clark provided a copy of her lease to IndyMac in the loan modification, and said lease shows her address as in Unit B. (See declarations of Peter Clark and Mary Bauer, Attachments i, and iii).
99)

As a result of the lack of service, Mr. Clark did not learn that Deutsche Bank alleged that

they owned his home until more than 3 months later, after March 5, 2010, when Mr. Clark received notification from the Contra Costa Court that Deutsche Bank had filed an Unlawful Detainer case against him and his frail and elderly tenant in which Deutsche allege that they had provided notice 90 days before.
100)

Mr. Clark provided a separate statement of Undisputed Facts that showed considerable

triable issues of fact (See EXHIBIT A, filed and attached herewith). Deutsches response to Mr. Clarks Answer failed to even mention, much less address, the vast majority of the triable issues of fact that Mr. Clark listed, or the reasons why that court does not have in personam jurisdiction or jurisdiction to render the verdict that Deutsche seeks. In so doing, Deutsche tacitly admitted to the existence of those triable issues of fact and lack of in personam jurisdiction or jurisdiction to render the verdict that Plaintiff seeks. In addition, Deutsche has not addressed and thus tacitly admits to the numerous adverse rulings by other courts of competent jurisdiction against Deutsche on the same issue of standing that Mr. Clark brought forward as a defense to the Summary Judgment Motion. Deutsche spent most of its argument (the first 11 pages), trying to un-ring the bell of rulings adverse to Deutsche regarding standing by arguing Quiet Title issues that the unlawful detainer court lacks jurisdiction to decide, and whose primary issue (of standing) has been decided against Deutsche in said numerous referenced cases. As such, Deutsche has tacitly admitted that the primary issues of fact related to the current ownership of the Subject Property have already been adjudicated adverse to Deutsche, and thus Deutsche is estopped from arguing these issues again.
101)

Deutsche has the burden of proof to show that they have in personam standing to act

regarding the unlawful detainer; that the Contra Costa court has jurisdiction to render the verdict that Deutsche Bank seeks; and that Deutsche has meticulously adhered to all of the notice and other due process requirements, none of which are true in this case. These and other issues precluded a ruling in summary judgment. By ignoring these serious and consistent violations of notice, law, and other violations of due process that they had to adhere to for
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them to prevail in an Unlawful Detainer case. Is it any wonder that they decided to shortcircuit the administration of justice by their vigilante acts in violation of the authority of the bankruptcy Trustee and Mr. Clarks civil rights by conducting their proceedings in violation of BPC 17918 and in the absence of notice to, much less the approval of, the bankruptcy trustee.
102)

As a convenience to Deutsche, Peter Clark provided Deutsche with MS Word 97

compatible versions of Defendants Answer and Defendants Statement of Undisputed Facts prior to the first hearing of that case (after faxing the document) in keeping with the notice requirements of unlawful detainer summary judgment. Mr. Clark did this, in part, to make it easy for Deutsche to address the issues brought forward by Defendants, point-by-point, in the accelerated time frames of an unlawful detainer summary judgment action. Mr. Clark asked that Deutsche return the favor, again, in part, to allow the issues to be addressed point-bypoint. Deutsche failed to do so, apparently because it had no answers to most of Defendants points, on the apparent hope that by arguing some of the issues of the Quiet Title case against Indymac in that court rather than the unlawful detainer, that the unlawful detainer Court would be wowed by Deutsches international stature and thereby ignore their violations of law such as 15 USC 1962e] (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. To use the state courts, Deutsche must comply with both Federal and state law in the way that Wells Fargo Bank N.A. has, as shown by EXHIBIT C.
103)

There were thus considerable triable issues of fact, however Mr. Clark could not act

for his own defense during the time of the hearing by federal law, and thus sent an observer, Alan Kilpatrick, as a witness to the events. Mr. Kilpatrick provided a declaration, which is filed and attached herewith (declaration of Alan Kilpatrick). Said declaration describes what Mr. Kilpatrick describes as collusion during the ex parte communications outside of the presence of opposing counsel during deliberations in which the judge ignored Mr. Clarks Opposition to Summary judgment and the existence of the substantial triable issues of fact and substantial defenses in, but where Mr. Clark could not speak because the case was in the jurisdiction of the Case Trustee. The Judge granted Deutsches Summary Judgment Motion in their unlawful detainer despite the aforementioned violations of due process and lack of standing and jurisdiction. Mr. Clark has no recourse in the California Courts because of the

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22

Federal jurisdiction, resulting in substantial violations of due process. This constitutes grounds for the current action under 42 U.S.C. 1983.22 The Sheriff Verifies that Service was Deficient
104)

The Sheriff refused to execute the writ of possession (see declaration of Jamie

Darlington, filed herewith as Attachment v). From information and belief, the reason that the Sheriff refused is because the Deputy that went to the site to post the writ learned that there is more than one living unit on the premises and neither had the address that Deutsche was awarded possession of and thus the writ was not to a proper address. Thus, the facts are as Mr. Clark has stated and not as Deutsche has claimed. This means that the service of Notices was deficient if only for this reason. This is proof positive of one of the triable issues of fact that Mr. Clark has maintained all along, including in his Answer to Deutsches unlawful detainer summary judgment motion. but which facts were not considered in the ex parte hearing outside of the presence of the counsel for the trust estate in the unlawful detainer summary judgment. 105) The Sheriffs verification of what Mr. Clark has alleged by refusing to execute the writ constitutes not just a verification of the existence of a triable issue of fact related to the
The Due Process Clause of the Fourteenth Amendment provides that certain substantive rights-life, liberty, and property- cannot be deprived except pursuant to constitutionally adequate procedures [Schultz v. City of Lamont, 465 F.3d 433, 443 (10th Cir. 2006). The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," [West v. Atkins, 487 U.S. 42, 49 (1988)(quoting United States v. Classic, 313 U.S. 299, 326,], and such actions may result in liability even if the defendant abuses the position given to him by the state.[Monroe v. Pape, 365 U.S. 167, 172 (1961).] In this case attorneys who claim to represent Deutsche have been in the position of being officers of the court. A private actor may also act under color of state law under certain circumstances. [Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), particularly where the private party is a willful participant in constitutional violations by a state player per Cinel v. Connic, 15 F.3d 1338, 1343 (5th Cir. 1994, Brunette v. Humane Society of Ventura County 294 F.3d 1205, 1209-10 (9th Cir. 2002)] In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). The City used bureaucracy, rather than legal means, to prevent the development of (California beach-front property owned by the developer), so there was never a condemnation suit nor any compensation paid by the City for taking the property as required by the Fifth AmendmentBecause state law provided no remedy, the developer was permitted to file a Section 1983 lawsuit. The lawsuit went to trial and the jury awarded the developer $1.45 million in damages (upheld by the Supreme Court). Handbook of Section 1983 Litigation 2009 By David W. Lee. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); 38 See also, Bishop v. Wood, 426 U.S. 341, 344 (1976). Board of Regents, 408 U.S. at 576. [Cleveland Bd. of Educ. v. Loudermill 39]., 470 U.S. 532, 541 (1985). [40]. Loudermill, 470 U.S. at 542. [41]. Parratt v. Taylor, 451 U.S. 527, 543-544 (1981). [42]. Daniels v. Williams, 474 U.S. 327 (1986). A Guide To Civil Rights Liability Under 42 U.S.C. 1983: An Overview Of Supreme Court And Eleventh Circuit Precedent Ian D. Forsythe. -36-

15 16 17 18 19 20 21 22 23 24 25

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1 2 3 4 5

unlawful detainer, but is also a verification that ALL of the Services of Notice related to the Deed of Trust secured by Mr. Clarks home were deficient. This includes the Notice that the Trustee alleges was made to announce Indymacs intent to sell the premises at a trustees sale (foreclosure). If the Notice was deficient regarding the alleged foreclosure sale, then the foreclosure sale itself is voidable for this reason as well. On November 6, 2009, a messenger had new document packages for Mary Bauer and

106) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Peter Clark. However the messenger did not leave the documents, but instead noted to a visitor to the premises that the address was improper as delineated in the declaration of Nicholas Kalinowski filed herewith as (Attachment vi).
107)

In the late morning of November 8, 2010, a messenger actually delivered documents

addressed to both Peter Clark and to Mary Bower at1674 Pleasant Hill Road rather than the actual addresses of the units. The documents informed Mr. Clark that Deutsche was engaging in an ex parte hearing on that same day, but without providing a time, so the hearing may have already been concluded at the time that the Notice was received. 108) This latest action was to amend the alleged fraudulent and void judgment to make it enforceable. alleged attempt at service of documents that were not in fact delivered provides further evidence of the failure of previous alleged service related to a filing by Deutsche which is alleged to be fraudulent in several ways. By taking this latest action, Deutsche and their agents are alleged to be in further violations of law under the color of law.
109)

The problem of the faulty service is not curable. However, if Deutsche had actual

standing they could post and serve proper notice to both addresses, and after waiting the statutorily mandated time, could then file a new unlawful detainer action.
110)

It is anticipated that Deutsche will file a new unlawful detainer action and claim that

there was effective service of a Notice to Quit at both of the actual residence addresses retroactive to three months before. Mr. Clark denies that there has been any Posting or a reveipt of any mailing of any Notice to Quit, however based upon what Deutsche has previously alleged, they will act as if such Notice has occurred.
111)

Deutsche is attempting to force yet another action under the color of law but in

violation thereof related to the subject premises, allegedly still without actual standing to do anything related to the subject premises. It appears that Deutsches new motion might be
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based upon their previous allegedly non-existent posting and mailing of alleged Notice to Quit, which alleged Notice quoted the wrong address on the actual document, and which Deutsche claims was posted and mailed to both Mr. Clark and to Mary Bauer but which both Mary Bauer and Plaintiff deny was posted nor received at either premises, and certainly not at both addresses, as would have been required by the laws of the State of California. Bad Faith Deception, Fraud, and Violations of 15 USC 1962e] (12) Fair Debt Collection Practices Act, Title VIII, 807
112)

Indymac Party Defendants are alleged to have prefaced Deutsches fraud with bad faith

Pre-Petition deceptive business practices that violated the covenant of good faith and fair dealings in an agency relationship with each other to gain windfall profits from their violation of legal procedures in violation of the Fair Credit Practices Act, the Business & Professions Code 17200 and (BPC) 17918, and other violations of alleging to foreclose on Plaintiffs home and now to take possession without apparent actual standing and/or other fraud, and in an agency relationship with Deutsche Bank to rid the property of the 30 year resident and his frail and elderly tenant. The evidence indicates that this Post-Petition claim constitutes another violation:
15 USC 1962e] (12) The false representation or implication that accounts have been turned over to innocent purchasers for value. (Fair Debt Collection Practices Act, Title VIII, 807). 113)

Plaintiff did not know of the ruse until Plaintiff received a notification from the Contra

Costa Courts that Deutsche Bank had filed an Unlawful Detainer case against Plaintiff and the tenant of Unit B, Mary Bower, Case # CD10-0170 in or about March 5, 2010, three weeks after Mr. Clark filed for bankruptcy protection. Deutsche has violated Federal authority so their unlawful detainer action will be heard prior to the issue of their (lack of) standing is heard.
114)

The evidence indicates that Deutsche did not possess the underlying Note and/or trust

agreement giving authority for Deutsche to act on their own behalf or on behalf of Indymac to foreclose on the real property commonly known as 1674 Pleasant Hill Rd., Pleasant Hill, CA 94523 (herein Subject Property), or for Indymac/ OneWest or Quality Loan Services to act at all. In addition, there are major issues regarding the underlying alleged foreclosure(s) and events surrounding said alleged foreclosure(s) alleged on October 20, 2009 AND November 10, 2009. Both are not possible, so at least one must be fraudulent. 115) The evidence indicates that Defendants are not the legal owners of the subject property:
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For an assignment to be valid there must be more than the assignment of the deed alone; the note must also be assigned See Carpenter v. Logan, 83 U.S. 271, 274 (1872) stating that the note and mortgage are inseperable; the former as essential, the later incident adding that an assignment of the note carries the mortgage with it as quoted from Saxon Mortgage Services, Inc vs Ruthie B. Hillary et al Case No.C-084357 document 19. -----------------In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Circuit 1996)

116)

Thus, it is the assignment of the note that carries the mortgage with it. Plaintiff demands In 2008, U.S. Federal Judge, C.A. Boyko in Federal District Court in Cleveland Ohio

strict proof that Defendants possessed and were properly assigned the Note at those times,
117)

ruled to dismiss a claim by Deutsche Bank National Trust Company seeking to take possession of 14 homes from Cleveland residents living in them, in order to claim the assets (In Re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007) (stating that, "[t]o show standing in a foreclosure action, . . . the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed). This ruling has been echoed all over the country, and Defendants are precluded by estopples from prevailing today.
118)

On October 22, Indymac insisted that they had foreclosed and taken the property for

themselves on October 20, 2009, per Indymacs agents, in response to calls by Plaintiff, and as late as their letter to Plaintiff dated November 17, 2009 (filed and attached as EXHBIT B), one week AFTER what Defendants are now alleging as the date of a foreclosure sale to Deutsche Bank on November 10, 2009, per Deutsche Banks current story. Plaintiff relied on the veracity of Indymacs story, which they now state was false, and Plaintiff was damaged as a result. Once again, Indymac fraudulently induced Plaintiff to remain out of Bankruptcy, possibly so they could arrange their paperwork. Thus, even if they did have the proper paperwork for the foreclosure, which is denied, said alleged foreclosure would have still been the product of fraud, and all other acts are alleged to constitute acts of money laundering and/or other actions to complete the fraud.. Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress
119)

While a state may be immune under the Eleventh Amendment, individual state officials

nonetheless may still be subject to federal injunctive relief from ongoing Bankruptcy Code violations. An Ex parte Young injunction operates on the theory that an individual state official who is about to act or is acting in violation of federal law is not protected by the state's sovereign immunity. NBRC (National Bankruptcy Review Commission) State Sovereign Immunity In Bankruptcy After
Seminole Tribe Of Florida V. Florida (http://govinfo.library.unt.edu/nbrc/report/20semino.html B1) -39-

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23

It is clear from the legislative debates surrounding passage of 1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment 'against State action, . . . whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 See In re Straight, 209 B.R. 540, *20 (D. Wyo. 1997) (notwithstanding Seminole and Eleventh Amendment, section 5 of the Fourteenth Amendment authorizes Congress to abrogate state sovereign immunity in bankruptcy); Headrick v. Georgia (In re Headrick), 200 B.R. 963, 967 (Bankr. S.D. Ga. 1996) (same) 120)

The Declaration of Alan Kilpatrick filed and attached herewith appears to show that

agents who claimed to represent Deutsche acted as Officers of the Court to induce the Honorable Judge Mills to violate the Due Process clause of the Fourteenth Amendment and the federal authority of the bankruptcy court. A copy of the Supreme Court Ruling in Ex parte Young is provided as EXIHBIT D. 23 121) In so doing, Deutsche has induced Judge Mills to act unconstitutionally and in violation of federal law, and is thus not protected by the state's sovereign immunity. As a consequence of Ex parte Young, Congress passed two important statutes:
* 28 U.S.C. 2201 gives federal courts the power "to declare the rights and other legal relations of any interested party" and provides that "Any such declaration shall have the force and effect of a final judgment"; and * 28 U.S.C. 2202 states that "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party." Justice Peckham, writing for the Supreme Court, in Perkins 24 Ex parte Young, 209 U.S. 123 (1908), is a United States Supreme Court case that allows suits in federal courts against officials acting on behalf of states of the union to proceed despite the State's Sovereign immunity, when the individual acted unconstitutionally. Young contended that he was merely acting for the state of Minnesota when he sought to enforce its laws. The Court disagreed, holding that when a state official does something that is unconstitutional, the official cannot possibly be doing it in the name of the state, because the Supremacy Clause of the Constitution means that the Constitution overrides all the laws of the states, invalidating any contrary laws. Therefore, when a state official attempts to enforce an unconstitutional law, that individual is stripped of his official character. He becomes merely another citizen who can constitutionally be brought before a court by a party seeking injunctive relief. http://govinfo.library.unt.edu/nbrc/report/20semino.html 24 Justice Peckham, writing for the Supreme Court, had a series of issues to resolve. First, he concluded that there was federal question jurisdiction in Perkins (the parties were not completely diverse), identifying a number of issues of federal law raised in the proceeding. (19) He then turned to one of the merits questions: whether the penalties, designed to inhibit challenge to the rates through a defensive proceeding, were unconstitutional. He concluded that they were inconsistent with the requirements of due process because of the burden they placed on access to the courts. (20) Having reached the merits first, perhaps to make the opinion more persuasive, Peckham turned to the question of the circuit court's jurisdiction in Perkins in light of sovereign immunity. He conducted a lengthy review of the Court's cases, (21) beginning with Chisholm v. Georgia (22) and continuing through more recent cases like Fitts v. McGhee, (23) on which Young had relied in drafting the Minnesota legislation. After concluding that sovereign immunity did not block relief against Young, Peckham turned to another question raised by a request for an injunction: whether there was an adequate remedy at law. The railroads' remedy at law, the Court assumed, would be to assert a defense in an enforcement proceeding. It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. (24) -40-

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The effect of 2201 is to permit the federal courts to declare the rights of a party suing a state official (or any other party, but they were created with state officials in mind) without issuing an injunction against the official. This was thought to be more respectful of the states. However, if the court declares a statute to be unconstitutional, and the state official still prosecutes someone for violating the statute, then 2202 takes effect, permitting the federal court to take action such as issuing an injunction and holding an official who violates that injunction in contempt.
An Act of Congress, 42 U.S.C. 1983, expressly authorizes a 'suit in equity' to redress 'the deprivation,' under color of state law, 'of any rights, privileges, or immunities secured by the Constitution . . .'2 [The statute provides in full: 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' ]

Plaintiff Acted In Good Faith And Defendants Have Not (See Declaration of Peter Clark) 122) Plaintiff acquired a loan in exchange for a note and deed of trust in or about 2005. In 2008, Plaintiff became unable to continue to make payments on his loan at the amount specified on the loan due to acts of third parties that are the subject of Binding Arbitration that is ongoing with the American Arbitration Association, Case # 74 194 Y 01440 07 JEMCO. Plaintiff has millions of dollars in assets which the Defendants in said arbitration case have tied up for the expressed goal of economic duress and the stated goal of Bankrupting Peter Clark so they can take his assets for next to nothing. 123) In or about September, 2008, Plaintiff applied to Indymac for loan modification and received a letter that he would receive a response in 30 days. Plaintiff never received the promised response.
124) In July, 2008, the Governor signed into law SB 1137, which created California Civil Code 2923.5 and 2923.6. On of about July, 2009 Plaintiff presented to Indymac through ACORN Housing, a proposal for Defendants to act in accordance with this law. 125) The Federal Deposit Insurance Corporation took over Indymac in 2008, which became subject to the policies of the Executive Branch of the United States regarding the reduction of foreclosures as part of ongoing economic stabilization.
But a single violation might or might not be punished, and in any event the criminal penalties would make it hard to find anyone prepared to commit the violation (just as Young had intended). (25) Moreover, the constitutional question, involving intricate facts of corporate accounting, would be hard to explain to a jury in defense in a prosecution. Much better to let the whole thing come to equity, so the remedy at law was not adequate. (26) Concluding that Young was properly in custody because the circuit court's injunction was proper, the Court denied relief on habeas. [http://www.highbeam.com/doc/1G1-177871506.html] -41-

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126)

In November, 2008, Barak Obama was elected President of the United States and enacted

executive policies to minimize foreclosures. OneWest, in purchasing Indymac from the FDIC, became subject to said federal executive policies in addition to relevant California law such as California Civil Code 2923.5 and 2923.6, the Foreclosure Prevention Act, and the implied covenant of good faith and fair dealings. Most major banks have adapted loan modification programs, but not Deutsche or Indymac. 127) Indymac antecedent OneWest alleged that they began foreclosure proceedings in the name of Indymac in or about December, 2008, but is alleged to have failed to follow the procedures proscribed by law, including regarding service of Notice of the foreclosure sale (and Deutsche for the unlawful detainer). 128) In or about April, 2009, Plaintiff engaged the services of ACORN Housing to pursue loan modification with Indymac. Plaintiff believed, and believes, that ACORNs policies regarding loan modification are closest to those of President Obama of any other group. ACORN assured Plaintiff that they have a higher level of access to the then secret Indymac investors, regarding loan modification negotiations than Plaintiff would have as an individual, and Plaintiff has reason to believe that this is true. 129) ACORN worked with Plaintiff to insure that Plaintiff supplied all materials necessary for Indymac to complete the loan modification process, with updates as required from time-to-time. Plaintiff was told that the modification was being reviewed, and such modification was never denied. 130) Plaintiff became alarmed in the weeks leading up to the foreclosure date of August 4, 2009. Plaintiff called Indymac directly, only to find that the retail side of Indymac was separate from the part that was in discussion with ACORN. Plaintiff worked diligently to insure that the files on the retail side reflected the documents that Plaintiff had submitted through ACORN. Indymac assured Plaintiff that these files had been brought together, however Indymac did not stop the foreclosure date. 131) Plaintiff filed for bankruptcy on August 3, 2009, the day prior to the scheduled foreclosure. Plaintiff made sure that Indymac, and the trustee, was aware of Plaintiffs bankruptcy. After filing, Plaintiff was informed that Indymac cancelled the foreclosure date. 132) Plaintiff learned that during his bankruptcy he would be expected to continue to make payment on the loan at the higher, pre-loan modification rate that Plaintiff could not afford, and which needed to be modified. As a result, Plaintiff believed that his bankruptcy plan would be rejected because such a high percentage of Plaintiffs income would have to be dedicated to payments to Indymac, that Plaintiff could not afford to make any payments on other debts that are the direct and proximate result of acts by the Defendants of Plaintiffs previously referenced Binding Arbitration. 133) Plaintiff thus realized that loan modification was required prior to the Bankruptcy Court approving a plan. Plaintiff called Indymac during the bankruptcy, and Indymac reported that that they had ceased processing the loan modification, and by law could not resume said modification until
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Plaintiff was out of bankruptcy. Plaintiff has since learned that Indymacs statement was false, because it could have been accomplished as part of a re-affirmation of the debt. However Plaintiff did not know this at the time. Plaintiff thus relied on said false statement by Indymac to Plaintiffs detriment. 134) In September, 2009, Defendants assured Plaintiff that no foreclosure was scheduled, and that they would resume the loan modification process as soon as Plaintiff was out of bankruptcy. Once again, Plaintiff relied on Defendants statements to his detriment, and has been damaged thereby. 135) Plaintiffs bankruptcy was dismissed on a technicality, and Plaintiff was free to re-file for bankruptcy because Plaintiff had fixed the technical problem within days of his filing for bankruptcy, however Plaintiff, in relying on Defendants false and self-serving statements regarding the need to be out of bankruptcy, believed that he had to complete the loan modification and establish an affordable payment schedule prior to going back into bankruptcy to re-organize the remainder of his debts in the mutual interest of legitimate debtors, including, from his belief at the time, Indymac. 136) Plaintiff thus asked Indymac if they would process the loan modification if he would remain out of bankruptcy to complete the loan modification process. Indymac representatives stated that they would, but needed proof that Plaintiff was out of bankruptcy. Plaintiff supplied said proof by fax to Indymac, together with a request that Indymac complete the loan modification process. Indymac agreed to do so, and verified that in a phone call on October 13, 2009.
137)

Defendants blindsided Plaintiff by secretly re-scheduling, and allegedly completing, an alleged

foreclosure of Plaintiffs home one week later (October 20th). Defendants kept said foreclosure process secret not only from Plaintiff, but also from the holder of the second deed of trust, who alleges that he never received any notice of foreclosure sale (See declaration of Alan Kilpatrick). Plaintiff alleges that Indymac has engaged in deceptive and unfair business practices to defraud Plaintiff of possession of his home during the time of Plaintiffs business re-organization required as a direct and proximate result of malfeasant acts by the Defendants in the previously referenced Binding Arbitration. 138) Plaintiff acted in good faith at all times related to the loan modification, and Indymac did not.

Deception and Undue Influence 139) Those in Agency relationship with Deutsche used economic duress regarding the high payments required by Plaintiffs unmodified loan to force Plaintiff to remain out of bankruptcy in order to fix the problem by the loan modification that it now appears Defendants had no intention of granting. 140) In the capacity as alleged Note Holder, Indymac and OneWest deceived Plaintiff with promises to move Plaintiffs loan modification forward, and other deception. In said capacity as alleged Note Holder, Defendants exercised undue influence over Plaintiff to cause Plaintiff to come out of bankruptcy protection to complete the loan modification process. Defendants deception and apparent violations of
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the implied covenant of good faith and fair dealings in their relations with Plaintiff is particularly egregious because Indymac had previously informed Plaintiff that: a. No foreclosure was scheduled b. Plaintiff had to get out of bankruptcy prior to completing the loan modification process begun with Indymac many months before, which process appeared to be nearly completed. c. Indymac had previously indicated that all that remained to complete the loan modification was Plaintiff showing the increased income that he was able to prove prior to his having to step into bankruptcy to prevent the foreclosure in the interim. Plaintiff showed that income, and thereafter, Plaintiff was able to show twice as much income. d. Plaintiffs bankruptcy was dismissed without discharge for a technical reason that Plaintiff had already fixed, allowing Plaintiff to make a clean re-filing. However Plaintiff chose not to do so specifically because of the representations by Indymac that would have allowed Plaintiffs bankruptcy plan to succeed, something that did not appear possible in the absence of loan modification. e. Such representations by Indymac included a telephone call to Plaintiff on the 13th of October by a representative of Indymac requesting additional information that Plaintiff supplied the next day (one week after Indymac had secretly re-scheduled the foreclosure, and a week before they completed the foreclosure, also in secret from Plaintiff.) 141) Thus, Plaintiff relied on the false and/or misleading statements by Indymac to Plaintiffs detriment, including the telephone call on October 13th. Plaintiff has suffered damages as a result of his reliance on Defendants misrepresentations. Plaintiff informed Indymac of ways they could mitigate the damages, however Indymac has refused, and continues to refuse, to do so. 142) Completing the loan modification was a high priority for the above stated and other reasons: including because Plaintiffs office and shop area is in a detached garage on the same property. The house next door is for sale, and has been vacant for months. b. Plaintiff has numerous business opportunities, and needs to concentrate on re-starting his business at this time, which business has been placed on hold as a result of the acts of third parties that are in binding arbitration. Plaintiff cannot focus on restarting his business while being distracted by the loss of his home, shop, and office. 143) Defendants were precluded from their foreclosure by the automatic stay in the bankruptcy, and thus deceived Plaintiff to step out of bankruptcy protection rather than completing a loan modification as part of a re-affirmation of the debt in Plaintiffs bankruptcy under the oversight of the bankruptcy trustee, as now appears to be federal policy in keeping with the stated executive goals of the Obama Administration in the absence of action by the United States Congress.
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a. Plaintiffs home is more value to Plaintiff than it would be to Defendants on the open market,

COMPLAINT

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144)

In failing to proceed with the loan modification as a re-affirmation in the bankruptcy and in

proceeding in the foreclosure of the property of the Debtor, Defendants agents created a minefield of problems, while counting on the fact that the economic dress that Plaintiff faces will prevent him from protecting his rights and the public interest in reversing the foreclosure. 145) As a result, an actual controversy has arisen and now exists between the Plaintiff and the Defendants concerning their respective rights regarding Defendants secret foreclosure proceeding while stating to Plaintiff that they were actively engaged in loan modification. Deutsches Pattern of Fraud Constitutes Racketeering

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

146)

Our society has placed lenders in a position of trust by providing them with special, expedited

legal processes whenever their agents proclaim by fiat that they have complied with all legal requirements to take ownership of their clients property, however it appears that said agents have succumbed to the same pressures as the overseers of undersea oil drilling in failing to act in keeping with the public trust, as delineated further herein. According to rulings of State and Federal Judges since 2007, Defendants have engaged in a pattern of violations of that trust by engaging in numerous violations of state and federal law, first related to their sub-prime loans, and second by their eviction mill process to evict their clients from their homes without taking the actual legal steps for actual ownership, without complying with notice requirements, and, as now demonstrated by their violations of federal authority and due process.
147)

By purchasing Indymac and its portfolio of loans from the Federal Government at a steep

discount that anticipated the loan modifications that would have to be enacted, OneWest became the beneficiary of the profits that Deutsche is now attempting to extract by allegedly illegal means. However the evidence indicates that Indymacs portfolio is, to a large extent, worthless. This is alleged because the evidence indicates that Indymac generally did not acquire, or transfer, actual legal rights related to said portfolio, but merely the electronic representation of rights that they never possessed25. In addition, OneWest liquidated Indymac without transferring the assets in an apparent attempt to evade the taxes on the capital gain from their purchase of the discounted notes. The evidence indicates that Deutsche is now acting contrary to public policy to exacerbate the problem that One West was supposed to resolve by its purchase of Indymac. And now the Attorneys General of all fifty states are investigating what is alleged to constitute wholesale fraud on the part of numerous financial institutions, with IndyMac/OneWest and

25

While virtually all of the major banks in this state have recognized their responsibility and have created loan modification programs that have been approved by the commissioner in keeping with the intent of the Foreclosure Prevention Act, Deutsche and Indymac/OneWest are notable exceptions. Bank of American has now halted foreclosures nationwide because f the problems as shown by EXHIBIT G, filed and attached hereto. -45-

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Deutsche high on the list, see 39, 85 and EXHIBIT J and at a time when Bank of America stopped ALL foreclosures for one of the reasons present in the current case, See. 148) During the debate about bailing-out the banks, Congress decided that non-US banks should not be getting TARP funds. From information and belief, of the $50 billion the Feds have given to AIG's counter-parties, Deutsche Bank is alleged to have received $6 billion, contrary to the intent of Congress. If, in fact, the reason that Deutsche never incorporated was to evade American taxes, then the $6 Billion in Bailout money would appear to be doubly egregious. 149) The evidence indicates that those who claim to represent Deutsche and/or those acting in an agency relationship and/or in conspiracy to engage in the acts and omissions complained about herein, and the scope of this agency relationship and/or conspiracy will be delineated by reasonable discovery.
150)

From information and belief on October 22, 2009, Real Estate Broker/Agent Rebecca

Williams came to the premises of Unit B and informed tenant Mary Bauer that a foreclosure had occurred on October 20th, 2009, and that Indymac had taken possession of the property by nature of said foreclosure. Ms. Williams is alleged to have informed Mary Bauer that she had sixty days to vacate the premises. Mary Bauer then informed Plaintiff, Peter Clark of said visit and said alleged foreclosure. 151) Upon hearing the allegation that a foreclosure had taken place, Peter Clark immediately called Indymac, with whom Mr. Clark was actively engaged in loan modification at the time. Indymac confirmed that the property was an REO (real estate owned) of the bank, and that Indymac had taken the property in a foreclosure action on October 20, 2009, when no third party came forward to purchase the property at the Trustee sale. Indymac verified said alleged fact in a letter to Plaintiff dated November 17, 2009.
152)

For its alleged innocent purchaser status, Deutsche now infers that it purchased the Note and Deed

of Trust from Indymac sometime after October 20th and before the end of November 4th, 2009, and did not foreclose until said November 4th date. Plaintiff did not learn of this allegation until receiving a copy of an unlawful detainer action against him in or about March 11, 2010. Deutsche also infers that it made the switch five years ago, inferring that Indymac has engaged in fraudulent misrepresentation for the duration. 153) Either OneWests previous representation that it foreclosed on the property/deed on October 20, 2009, or Deutsches representation that it foreclosed on November 4th constitutes fraudulent misrepresentation. By the legal principle of false in one, false in all, (Falsus in uno, falsus in omnibus), both claims must be held to be false. Plaintiff relied on Deutsches agents misrepresentations in October and thereafter to his detriment, and has been damaged thereby in an amount to be ascertained at trial.
154)

The date of Correspondence from Indymac/One West, November 17, 2009, is two weeks

AFTER Deutsche Defendants now allege that they had foreclosed on November 4th. Up until this November 17th letter, Indymac/OneWest repeatedly acknowledged to Plaintiff that they had received all
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of the necessary documentation for loan modification review, and were actively pursuing said loan modification.
155)

Deutsche and OneWest are both alleged to have lacked standing to engage in a foreclosure

action. Regardless of such lack of standing, acting in agency relationship with each other, they are alleged to have taken advantage of their position of trust by fraudulent misrepresentations in violation of the Covenant of Good Faith and Fair Dealings as a key element of their failure to act responsibly in keeping with banking regulations, law, and the intent of the California Legislature and the Obama Administration, and now hold the property of Plaintiff in Constructive Trust due to their deceptive business practices and violations of law, including the Fair Debt Collection Practices Act:
TITLE 15 > CHAPTER 41 > SUBCHAPTER V > 1692e 1692e. False or misleading representations A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 156)

A further actual controversy has arisen related to the secretive dealings between the Indymac

Parties and Deutsche Bank related to their now alleged foreclosure proceedings on November 10, three weeks after Indymacs previously alleged foreclosure proceedings on October 20, 2009. In all cases there is a question of standing. In re Foreclosure Cases Judge Boyko ordered Deutsche Bank to produce evidence of standing, but the copies of notes and mortgages Deutsche Bank included with its filings don't show ultimate endorsement/assignment to Deutsche Bank. Judge ordered Deutsche Bank to fix this. Deutsche Bank did so by having its attorneys draft after-the-fact assignments, undoubtedly because nobody could find the original assignments. It appears this angered Judge Boyko.
157)

As in the current case, Deutsche Bank alleges that it was acting as Trustee for securitization

pools. But the evidence indicates that the Trustee never got the legal document known as the mortgage. Judge Boyko ordered Deutsche Bank to prove they were the owners of the mortgages (or Notes), and they could not, as in the current situation. Deutsche Bank could only argue that the banks had foreclosed on such cases for years without challenge. The Judge then declared that the banks seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, the Judge concluded, their weak legal arguments compel the court to stop them at the gate.
158)

With in re Foreclosure Cases there was never a question that the loans weren't legally sold or

assigned to Deutsche Bank. In Ohio, it appears that the question related solely to the arrogance and audacity of a lender telling a judge to ignore its sloppy paperwork and just get on with a foreclosure. The Judge chose to act by law instead. On the current case there are added questions related to the two
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alleged foreclosure dates (October 20 and November 10, 2009), bankruptcy fraud, and the numerous other violations of law delineated herein which is alleged to constitute racketeering under the RICO Act. Defendants are alleged to have engaged in such racketeering because they knew from their previous experience that they were precluded from collecting via legal means on their alleged extortion regarding Peter Clarks home by collateral estoppels as a result of the rulings of In re Walker and in re Foreclosure Cases. 159) The penalty for violations of the RICO Act are provided under Title 18 PART I CHAPTER 96
(c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorneys fee...

1964. Civil remedies:

Contra Costa Courts and Bankruptcy Court Had No Jurisdiction for Deutsche 160) Deutsche tacitly admitted to violations of the Bankruptcy Act and civil rights (due process) by their filing an Unlawful Detainer action against Mr. Clark in the Contra Costa Superior Court on or about March 5, 2010, during the time of the Automatic Bankruptcy Stay of Mr. Clarks Bankruptcy filed February 10, 2010. Mr. Clark stipulated to a relief from stay so that he could fight said action, however Deutsche had no actual standing to act in either court. Mr. Clark agreed to stipulate because the evidence, supported by subsequent events delineated herein, indicates that Deutsches Complaint was fatally flawed for numerous reasons, and thus Mr. Clark believed, and believes, that it was better to fight something that was doomed than something that might be perfected. Most of the fatal flaws have never been fixed, including Deutsches failure of service and continued failure to file a fictitious business name statement (making it illegal under California law for Deutsche to maintain any action in any court).
161)

Deutsche then filed for summary judgment based upon said (fatally) flawed unlawful

detainer pleadings, and attempted to prosecute said Unlawful Detainer action against Mr. Clark in the Contra Costa Superior Court after the conversion of Mr. Clarks Chapter 13 reorganization to a Chapter 7 liquidation and thus while the case was under the authority of the federal authority of the Case Trustee, without notice to said Case Trustee, and while Mr. Clark was prevented from acting in his own defense. (See Peter Clarks Attachment iii Declaration filed and attached herewith.). However Deutsche never had a legitimate claim against either Mr. Clarks Property or his trust estate as delineated herein, and thus neither the Contra Costa Courts nor the Bankruptcy Court had jurisdiction to act on Motions made by those who claim to represent
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Deutsche, an unincorporated association that may not be legally defined. As a result of these factors, any order made by either of these courts is alleged to be void, not voidable, for lack of jurisdiction. Supreme Court Decisions on Void Orders: A judgment may not be rendered in violation of constitutional protections. The validity of a judgment may be affected by a failure to give the constitutionally required due process notice and an opportunity to be heard. Earle v. McVeigh, 91 US 503, 23 L Ed 398. See also Restatements, Judgments ' 4(b). Prather v Loyd, 86 Idaho 45, 382 P2d 910. The limitations inherent in the requirements of due process and equal protection of the law extend to judicial as well as political branches of government, so that a judgment may not be rendered in violation of those constitutional limitations and guarantees. Hanson v Denckla, 357 US 235, 2 L Ed 2d 1283, 78 S Ct 1228.
162) This Federal Court has jurisdiction because Deutsche is owned by Deutsche AG of Frankfurt

Germany, but the evidence indicates that Deutsche is counting on the fact that it is difficult to find the proper person to serve on Deutsches behalf because of Deutsches failure to file a fictitious name statement.

Summation 163) Deutsche tacitly admitted to violations of the Bankruptcy Act, the authority of the bankruptcy Trustee, and civil rights (due process) by their prosecuting their Unlawful Detainer action against Mr. Clark in the Contra Costa Superior Court after the conversion of Mr. Clarks Chapter 13 reorganization to a Chapter 7 liquidation, and thus while the case was under the authority of the case trustee, and thus at a time when Mr. Clark was prevented from protecting his own interests [see Peter Clarks (Attachment iii) Declaration filed and attached herewith]. Deutsche thus knew that the Contra Costa Courts lacked jurisdiction to act on Deutsches Unlawful Detainer until after the Bankruptcy Case Trustee agreed to litigate, or after the Bankruptcy Court agreed to abandon the asset to the Debtor so that Mr. Clark could have his day in court as required for due process and to prevent an unlawful taking that is prohibited by the 5th and 14th Amendment of the United States Constitution as described in part by footnote #s3-4, 7, and 19, and s 10-15, 20, 26, 41-51, and 149, herein. In the current case, Deutsche has violated
the Bankruptcy Act in several ways to create a situation where due process was denied to Mr. Clark regarding Mr. Clarks home at a time when the Attorneys General of all 50 states are now investigating the practice of banks complained about herein, and Bank of America stopped ALL foreclosures for one of the reasons present in the current case, See EXHIBIT J.
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164)

The claims are federal in nature, some must be tried in this district Court, and Mr. Clark

lacks recourse in the State Courts for the remainder. In his final statement prior to his conclusion in his ruling against the Defendant fourteen times in In Re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007, filed and attached herewith as EXHIBIT F), U.S. District Court Judge, C.A. Boyko summed up the importance of his ruling with the following statement:
The Court will illustrate in simple terms its decision: Fluidity of the market X dollars, contractual arrangements between institutions and counsel X dollars, purchasing mortgages in bulk and securitizing X dollars, rush to file, slow to record after judgment X dollars, the jurisdictional integrity of United States District Court Priceless.

Judge Boyko made this statement before the magnitude of the sub-prime lending/foreclosure crisis was known, or its detrimental fall-out. It is alleged that in making this statement, U.S. District Court Judge, C.A. Boyko was proclaiming that he was breaking from the directives of money interests that some courts choose to follow instead of the United States Constitution and law related to financial instruments, due process, and the rights of Americans related to life, liberty, and the pursuit of happiness of Americans within their homes.

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COMPLAINT

1 2 165) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

PRAYER FOR RELIEF FIRST CAUSE OF ACTIONFRAUD

Plaintiff re-alleges paragraphs 1 through 164 hereinabove and all

other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 1-5 FACTS; 20-25- Parties and Agency; 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Act; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation
166)

By the acts set forth above, Defendants or those acting in an agency relationship

have caused damages to Peter Clark and to his tenants, including the frail and elderly Mary Bauer, including by filing during the automatic bankruptcy stay, prosecuting without notice to the trustee, and/or by claiming:
a.

an alleged foreclosure without standing or Notice and thus in violation of due

process on October 20th or November 4, 2009 ; and/or b.their alleged standing and/or capacity to file an unlawful detainer; and/or
c.

the absence of triable issues of fact, including adequacy of service, standing,

and due process issues; and/or d.related to the jurisdiction of the Bankruptcy Trustee, the Bankruptcy Court and the Bankruptcy Act after Plaintiff s bankruptcy was converted to a Chapter 7 liquidation; and when said representations were made, Defendants and or their agents knew these representations were false or made them recklessly without any knowledge of the truth or in callus disregard thereof, and as a positive assertion; 167)
168)

Defendants made the representation with the intent that Plaintiff should act upon them. In so doing Deutsche and/or those acting in an agency relationship thereto are alleged to

have violated the Fair Debt Collection Practices Act, Title 15 Chapter 41 Subchapter V 1692 Subchapter VDebt Collection Practices 1692e- False or misleading representations;
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and/or 1692f. Unfair practices; and/or the Bankruptcy Act; and/or engaged in money laundering as has been defined by the Comptroller of Currency; and/or violated C.C.P. 473. 169) 170) Plaintiff acted in reliance on Defendants representation and thereby suffered injury in As a further proximate result of the common allegations set forth an amount to be ascertained at trial. herein, Plaintiff has been forced to act as his own attorney and/or to hire attorneys to protect his rights, and has incurred and continues to incur costs, loss of income, and/or attorneys' fees. Wherefore, Plaintiff prays for relief according to proof. a. That this action be tried in front of a jury. b. For an award of reasonable attorneys' fees and/or reimbursement for the time that Plaintiff has had to dedicate to protect his home and way of life. c. For restitution and re-conveyance of all real and personal property held by defendants, and each of them, to Peter Clark, free and clear of encumbrances. d. For an award to Plaintiff of costs of suit incurred herein on all causes of action; e. Such other and further relief as the court shall deem just and proper. SECOND CAUSE OF ACTION (VIOLATIONS OF BANKRUPTCY ACT) 171) Plaintiff re-alleges paragraphs 1 through 170 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to realleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40- 44, Post Petition Violations of Federal Authority and Due Process; 80-90 Further Violations of Law; 91-97, Bad Faith Deception, Fraud, and Violations of 15 USC 1962e] (12) 110-130, Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 131-141, Deception and Undue Influence; 142-155, Deutsche has Engaged in a Pattern of Fraud
172)

By acts set forth above, Defendants and/or those acting in an agency if not

conspiratorial relationship have violated the Bankruptcy Act and other Federal law related to Peter Clark by:
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a. their filing an unlawful detainer action during the automatic Bankruptcy stay; and/or
b.

related to the jurisdiction of the Bankruptcy Trustee, the Bankruptcy Court and the Bankruptcy Act after Plaintiff s bankruptcy was converted to a Chapter 7 liquidation in violation of in alleged violation of 11 USC 554 and due process by ex parte actions that were without notice to and outside of the presence of opposing counsel;

173) 174) 175)

Defendants knew, or should have known, that their actions were Plaintiff has suffered damages as a proximate result. As a further proximate result of the common allegations set forth

contrary to law.

herein, Plaintiff has been forced to act as his own attorney and/or to hire attorneys to protect his rights, and has incurred and continues to incur costs, loss of income, and/or attorneys' fees. Wherefore, Plaintiff prays for relief according to proof. a) That this action be tried in front of a jury. b) For an award of reasonable attorneys' fees and/or reimbursement for the time that Plaintiff has had to dedicate to protect his home and way of life. c) For restitution and re-conveyance of all real and personal property held by defendants, and each of them, related to 1674 Pleasant Hill Road, Pleasant Hill, California and all living units, offices, workshops, and real or personal property related thereto to Peter Clark, free and clear of the encumbrances that Deutsche has claimed in the form of a Note and/or Deed of Trust which Defendants claim to have foreclosed upon. d) For general personal injury damages according to proof; e) For punitive damages; f) For an award to Plaintiff of costs of suit incurred herein on all causes of action; g) Such other and further relief as the court shall deem just and proper. THIRD CAUSE OF ACTION DECLARATORY RELIEF Peter Clark re-alleges paragraphs 1 through 175 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts;
176) -53-

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40- 44, Post Petition Violations of Federal Authority and Due Process; 80-90 Further Violations of Law; 90, Deutsches Lack Of Standing and Violations of Due Process; 91-97, Bad Faith Deception, Fraud, and Violations of 15 USC 1962e] (12) 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 177) Those purporting to act as attorneys or other agency relationship of Deutsche Bank

National Trust Company, an unincorporated association that is alleged to be wholly owned by Deutsche Bank AG of Frankfurt Germany, have acted in collusion if not conspiracy as officers of the court under the color of law but in violation thereof to induce the Honorable Bruce Mills of Contra Costa County to act in violation of the Due Process clause of the Fourteenth Amendment and the federal authority of the bankruptcy court and the Bankruptcy Act to violate the Fifth Amendment- Unlawful taking, 178) 28 U.S.C. 2201 gives federal courts the power "to declare the rights and other legal relations of any interested party" and provides that "Any such declaration shall have the force and effect of a final judgment"; 28 U.S.C. 2202 states that "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party.(Justice Peckham, writing for the Supreme Court, in Perkins).
179)

An actual controversy has arisen and continues between Peter and Deutsche

designated in this cause of action over Deutsches claim that they had the standing and capacity to foreclose on, and in so doing receive legal title to the home of Peter Clark by an act that Mr. Clark alleges is void by collateral estoppels [In re Foreclosure Cases], and regarding Deutsches standing and authority. This controversy is centered upon the following questions:
a.

Did IndyMac FSB ever actually possess the Note that attorneys who allege they represent

Deutsche alleged Deutsche acquired from Indymac FSB to provide them with the standing to foreclose on Mr. Clarks home, office, and workshop?
b.

Did Indymac FSB exist as a legal entity at the time that those who allege they represented

Indymac FSB allege that Indymac FSB declared Mr. Clarks Note in default and thus subject to foreclosure? c. Did Indymac FSB and the Trustee follow all of the provisions of California Law and due process necessary to engage in a foreclosure?

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d. Did those who allege that they represent Indymac FSB have the legal authority to foreclose on Mr. Clarks home at the time that they allege that they provided a Notice of intended foreclosure sale that both Mr. Clark and Alan. Kilpatrick allege that they never received?
e.

On October 20, 2009, the time that those who allege they represent Indymac allege that

Indymac foreclosed on Mr. Clarks home, did Indymac actually possesses the Note that said individuals who allege they represent Indymac allege provided Indymac with the standing to foreclose?
f.

Prior to November 4, 2009, the time that attorneys who allege they represent Deutsche allege

that Deutsche foreclosed on Mr. Clarks home, did those who allege that they represent Deutsche provide notice to Mr. Clark that they possessed the Note that said attorneys who allege they represent Deutsche allege provided Deutsche with the standing to foreclose?
g.

Prior to the alleged foreclosure on Mr. Clarks home on November 4, 2009, the time that

attorneys who allege they represent Deutsche allege that Deutsche foreclosed, was there a legal transfer from Indymac to Deutsche of the Note that said attorneys who allege they represent Deutsche allege provided Deutsche with the standing to foreclose?
h.

On November 4, 2009, the time that attorneys who allege they represent Deutsche allege that

Deutsche foreclosed on Mr. Clarks home, did Deutsche actually possesses the Note that said attorneys who allege they represent Deutsche allege provided Deutsche with the standing to foreclose? i. Are any of the statements of Indymac regarding their alleged foreclosure on October 20, 2009, contradictory to the statements of attorneys who claim to represent Deutsche in claiming to foreclose on November 4, 2009? j. Did Deutsche provide notice of AND record all of the steps that were allegedly taken to provide them with alleged authority to foreclose on Plaintiffs home? k. Is the taking of a home from a homeowner in possession constitutional if based on acts that are taken in secret and thus without review and/or without due process and/or under the color of law but in violation thereof?
l.

On November 4, 2009, the time that attorneys who allege they represent Deutsche allege that

Deutsche foreclosed on Mr. Clarks home, did Deutsche actually possesses the Note that said attorneys who allege they represent Deutsche allege provided Deutsche with the standing to foreclose?
m.

Did Deutsche have standing to foreclose on or to evict Mr. Clark or tenants of Mr. Clark per

Federal and State court rulings as denied by in re Walker and In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008 Exhibit K),) and the contrary claims of those that purport to represent
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interests which also may never have received said Note, and allegedly without ever receiving the original Note, and all without providing foundation for their claim such as evidence of the consideration, the contractual agreements, or other documents or declarations?
n.

Did Deutsche have standing per Federal and State court rulings to sue to evict Mr. Clark or

tenants of Mr. Clark in Federal Court as denied by In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008 Exhibit K),).despite Rule 19, which requires a joinder with the actual ownet, while the evidence indicates that Mr. Clark is the only one with an actual claim to be the legal owner?
o.

Did Deutsche act legally and the Civil Rights Act, Title 42 U.S.C 1983 (Due Process- 14th

Amendment), and not engage in an unlawful taking in violation of the Fifth Amendment as part of an extensive fraud? p. Has Deutsche shown that they are a bona fide third party purchaser and rightful assignee of the Note and Deed of Trust on Peter Clarks home of 30 years with the right to foreclose despite the evidence to the contrary? q. Does Deutsche have the authority and/or legal right to act in the place of a court of law and due process to make the ruling of law that they are a bona fide third party purchaser and/or rightful assignee of the Note and Deed of Trust on Peter Clarks home of 30 years with the right to foreclose despite the evidence to the contrary?
r.

Did Deutsche engage in a legal foreclosure, despite collateral estoppels (per In re Did Deutsche engage in a legal foreclosure, despite lack of standing (In re Kang Jin

Foreclosure Cases)?
s.

Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008 Exhibit K),)? t. Was Mr. Clarks home actually foreclosed upon on October 20, 2009? u. Was Mr. Clarks home actually foreclosed upon on November 4, 2009? v. Did Deutsche have standing and act legally per 11 USC 554 and due process to take ex parte actions that were without notice to and outside of the presence of opposing counsel.
w.

Did Deutsche act in compliance with Rule 19 of the Federal Rules of Court in their action in

the Bankruptcy Court, which requires a joinder with the actual owner per In re Kang Jin Hwang, 396 B.R. 757 (Bankr.C.D.Cal. 2008 Exhibit K),)?
x.

Did Deutsche also act legally regarding the Civil Rights Act, Title 42 U.S.C 1983 (Due

Process- 14th Amendment), and not as an unlawful taking in violation of the Fifth Amendment? y. Does Deutsche have the right to decide issues that are within the jurisdiction of the bankruptcy court without due process, and by such alleged violation of the bankruptcy act violate the civil rights of a debtor?
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z. Do Agents who allege to represent Deutsche have the authority and/or legal right to act in the place of the bankruptcy court by representing to the Contra Costa Superior Court that a bankruptcy trustee has the legal capacity to abandon an asset of trust, or has abandoned an asset of a trust, without an order from the Bankruptcy Judge in keeping with 11 USC 554 despite the requirements of said federal law, and/or that a relief from stay alone releases an asset from the authority of the Bankruptcy Court? aa. Do attorney/agents who allege to represent Deutsche have the legal right to engage in ex parte communications with the Judge of the Contra Costa Superior Court that appears to a third party to constitute collusion, all outside of the presence of opposing counsel, despite Rules of Professional Conduct of the California Bar, Rules of Court, and Plaintiffs constitutional right to due process? bb. Does Deutsche have the authority and/or legal right to act during the time of the automatic bankruptcy stay of Debtor, Peter Clark without first receiving a relief from stay from the Bankruptcy Court in Peter Clarks Bankruptcy?

180)

If the answer to any of the above is No, then Deutsche does not possess legal title

to Mr. Clarks home, and said title instead must be ordered reinstated to Mr. Clark free and clear of the alleged encumbrance. 181) Mr. Clark desires a judicial determination and declaration of Mr. Clark 's and the defendants' respective rights and duties that might be imputed between the parties regarding the subject property.
182)

The declaration is necessary and appropriate at this time, so that Mr. Clark can

determine his rights, obligations and duties under said agreements. Without such declaration Mr. Clark will face the burden of loss of use of property and attendant benefits caused by the unsettled state of affairs resulting from different interpretations of agreements, and other remedies are and would be inadequate. These circumstances include the loss of Mr. Clarks home, office, and workshop, and the loss of Mr. Clarks way of life. WHEREFORE, Plaintiff prays for relief according to proof as set forth hereinafter and for judgment against Defendants and each of them, as follows: A. The foreclosure alleged by those who claim to represent Deutsche Bank National Trust Company related to the Subject Premises at 1674 Pleasant Hill Road, Pleasant Hill, California on or about November 4, 2009, is void,
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B. Deutsche Bank National Trust Company has no claim to the Subject Premises at 1674 Pleasant Hill Road, Pleasant Hill, California or against Peter Clark related thereto. C. Deutsche Bank National Trust Company shall issue a grant deed back to Peter Clark for the Subject Premises at 1674 Pleasant Hill Road, Pleasant Hill, California, D. The Note and Deed of Trust upon which those who claim to represent Deutsche Bank National Trust Company allege that they foreclosed on the Subject Premises at 1674 Pleasant Hill Road, Pleasant Hill, California is null and void. E. Any judgment received by those who claim to represent Deutsche Bank National Trust Company related to the Subject Premises at 1674 Pleasant Hill Road, Pleasant Hill, California was accomplished in violation of due process and/or without proper notice to opposing counsel for the Bankruptcy Trustee and without abandonment of the asset by the Trustee, and are void in accordance with law and public policy. E. For such other and further relief as the court may deem proper.

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26 27

FOURTH CAUSE OF ACTION VIOLATION OF 42 U.S.C. 1983: DUE PROCESS

183)

Peter Clark re-alleges paragraphs 1 through 182 hereinabove and all other paragraphs hereinafter with the same force and effect as if herein set forth. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs:

26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation 184) At all times relevant herein, the conduct of all Defendants were subject to 42 U.S.C. Acting under the color of law, Defendants worked a denial of Peter Clark's rights, a. by depriving Mr. Clark of title and/or titular possession of his home without standing
b.

secs. 1983, 1985, 1986, and 1988.

185)

privileges or immunities secured by the United States Constitution or by Federal law26, to wit,

by depriving Mr. Clark of title and/or titular possession of his home without

due process of law 27 c. by conspiring for the purpose of impeding and hindering the due course of justice, with intent to deny Mr. Clark equal protection of laws,
d.

by refusing or neglecting to prevent such deprivations and denials to plaintiff,

thereby depriving plaintiff of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and/or Fourteenth Amendments to the Constitution of the United States.28
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); County of Sacramento v. Lewis. 523 U.S. 833 (1998); Youngberg v. Romeo, 457 U.S. 307, 315 (1982) 28 Miga v. Holyoke, 398 Mass. 343, 349, 350 (1986) (deprivation of pretrial detainee's substantive due process rights where state seeks to impose punishment without a constitutional adjudication of guilt). Bell v. Wolfish, 441 -59-

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WHEREFORE, Plaintiff prays for relief according to proof as set forth hereinafter and for judgment against Defendants and each of them, as follows: A. For an order that the acts of Deutsche that were accomplished after Peter Clarks bankruptcy related to the Note and Deed of Trust secured by the Subject Premises without proper service to the Bankruptcy Trustee. Prior to a relief from stay from the Bankruptcy Court; and/or prior to the abandonment of the asset and/or litigation by the Trustee are void in accordance with law and public policy. B. For a declaration that Deutsche has no standing related to Peter Clarks Bankruptcy proceedings. C. For damages, costs of suits, and defense of suits incurred; and D. For such other and further relief as the court may deem proper.

FIFTH CAUSE OF ACTION VIOLATION OF 42 U.S.C. 1983: UNLAWFUL TAKING

186)

Peter Clark re-alleges paragraphs 1 through 185 hereinabove and all other paragraphs hereinafter with the same force and effect as if herein set forth. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs:

26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- Violations of (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation

U.S. 520, 535, n. 16 (1979). -60-

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187)

At all times relevant herein, the conduct of all Defendants were subject to 42 U.S.C. Acting under the color of law but in violation thereof and without standing,

secs. 1983, 1985, 1986, and 1988.

188)

Defendants worked a denial of Peter Clark's rights, privileges or immunities secured by the United States Constitution or by Federal law29, to wit, a. by depriving Mr. Clark of title and/or titular possession of his home without standing
b.

by depriving Mr. Clark of title and/or titular possession of his home without

due process of law 30 c. by conspiring for the purpose of impeding and hindering the due course of justice, with intent to deny Mr. Clark equal protection of laws,
d.

by refusing or neglecting to prevent such deprivations and denials to plaintiff,

thereby depriving plaintiff of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and/or Fourteenth Amendments to the Constitution of the United States.31 189) In attempting to assert that Deutsche held a position related in some way to the servicing of a loan for (the former) Indymac FSB and/or similar to that which MERS (Mortgage Electronic Registration System) holds with other banks but without providing any evidence that Deutsche has acted in such a capacity (and such a role would still not provide standing or capacity), Deutsche has engaged in a scheme depended on artifice and the ability to generate any necessary assignment which flowed from it, however Deutsche has shown no actual evidence that it has actually acted in such a role, even if such a role provided standing for Deutsche to sue Peter Clark for unlawful detainer, which it does not. WHEREFORE, Plaintiff prays for relief according to proof as set forth hereinafter and for judgment against Defendants and each of them, as follows: A. For an order that the acts of Deutsche Bank National Trust Company that were accomplished after Peter Clarks bankruptcy related to the Note and Deed of Trust secured
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); County of Sacramento v. Lewis. 523 U.S. 833 (1998); Youngberg v. Romeo, 457 U.S. 307, 315 (1982) 31 Miga v. Holyoke, 398 Mass. 343, 349, 350 (1986) (deprivation of pretrial detainee's substantive due process rights where state seeks to impose punishment without a constitutional adjudication of guilt). Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979). -6129 30

COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

by the Subject Premises without proper notice to the Bankruptcy Trustee a relief from stay from the Bankruptcy Court and abandonment of the asset by the Trustee are void in accordance with law and public policy. B. For a declaration that the Note and Deed of Trust upon which those who claim to represent Deutsche allege that they foreclosed on the Subject Property at 1674 Pleasant Hill Road, Pleasant Hill, California is void, together with all collection efforts, and a declaration that Deutsche has no standing related to Peter Clarks Bankruptcy proceedings. C. For damages, costs of suits, and defense of suits incurred; and D. For such other and further relief as the court may deem proper.

SIXTH CAUSE OF ACTION VIOLATIONS OF BUSINESS AND PROFESSIONS CODE SECTION 17200 190) Peter Clark re-alleges paragraphs 1 through 189 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation
191)

By virtue of the terms of the loan agreement and position or trust

23 24 25

placed in lenders and Trustees to behave ethically and to follow the law and due process with meticulous attention to detail as required by law, some of which is set forth above in the incorporated paragraphs, there
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COMPLAINT

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

existed between Peter, on the one hand, and Deutsche Bank National Trust Company and those acting in agency relationship which includes Indymac FSB and/or OneWest and/or their predecessors or successors of interest and each of them, on the other hand, a relationship of trust and confidence giving rise to a fiduciary duty in each of the defendants in their capacity as lenders during an economic emergency, to deal with Peter Clark, with the utmost good faith, honesty and integrity, and for the lender to engage in Loan Modification in good faith. 192) The special trust placed by the American public and by Peter Clark in lenders is evidenced by laws and policies related to lending, the collection of debts, and foreclosure, unlawful detainer, summary proceedings which border on a violation of due process (even when the letter of the law is adhered to, and the Moving Party is not engaged in deceptive business practices, as is alleged in this case). Without honesty and integrity, and where those placed in such trust exceeded their authority by law for expedience or to squeeze windfall profits, the balance is tipped past the point of violation of due process and thus civil rights or those at the receiving end of the summary proceedings.
193)

In enacting California Civil Code 2923.5, 2923.6 and the Foreclosure Prevention Act,

it was the clear intent of the California Legislature to reduce the number of foreclosures in this state by requiring good faith efforts by the lenders to engage in loan modification.
194)

By enacting the Constitution of the United States, it was the clear intent of the

Founding Fathers of our country to require good faith efforts by all to protect the civil rights of others in all human endeavors and governmental affairs.
195)

By enacting the Civil Rights Act; the Fair Debt Collection Practices Act, Title 15

Chapter 41 Subchapter V 1692 Subchapter VDebt Collection Practices 1692eFalse or misleading representations; and/or 1692f. Unfair practices; and/or the Bankruptcy Act; and/or money laundering laws as has been defined by the Comptroller of Currency, and the Protecting Tenants in Foreclosure Act of 2009, it was the clear intent of Congress to require good faith efforts by all to protect human rights in all affairs.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

196)

The United State Congress did not take action to require Bankruptcy Judges to force

loan modification, however. Thus, when those acting in agency relationship with Deutsche reported that they would complete the loan modification once the bankruptcy proceedings were halted, Plaintiff acted in accordance with Defendants directives to Plaintiffs detriment.
197)

By acting post-petition in an agency relationship with the One West

Parties, Deutsche Bank National Trust Company (Deutsche) and/or those who allege to represent Deutsche become a full Party to fraud, and fully liable for the damages32.
198)

Deutsche engaged in misrepresentation, concealment, and other deceptive practices

and then violated bankruptcy laws and filed litigation against Mr. Clark during the time of the automatic stay of Mr. Clarks bankruptcy as a key element of their damaging acts as described herein. This constitutes unfair, unlawful, and fraudulent business practices in violation of California Business and Professions Code Section 17200 et seq.. Said violations of law have caused economic duress to Mr. Clark. As a proximate result of these actions by Respondents, and each of them, and Mr. Clarks reliance thereon, Peter has been damaged as more fully described above in an amount to be ascertained at trial. 199) As a proximate result of these actions by defendant Deutsche Bank, and Mr. Clark's reliance thereon, Mr. Clark has been damaged as more fully described herein and which will be more fully delineated at trial in an amount that can be mitigated by actions of this court, and thus which must be ascertained in a final accounting at trial. 200) In doing the post petition actions herein alleged, Deutsche Bank acted with oppression, fraud, malice, reckless disregard of Peter Clark's rights and the consequences that they might suffer, and with the intent to injure Peter Clark in his financial and personal interests, and Peter is therefore entitled to recover punitive damages from these defendants, and each of them, for the commission by each of them of this tort.

In inducing Plaintiff to take actions that have caused the damages at issue herein, Indymacs and One Wests pre-petition conduct as described herein constitutes unfair, unlawful, and fraudulent business practices in violation of California Business and Professions Code Section 17200 et seq. Those acts by Indymac and One Wests were pre-petition, however, and the subject of pre-petition litigation which the case trustee has agreed to abandon, however the court has not yet abandoned it. -6432

COMPLAINT

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

201)

As a further proximate result of the activities set forth herein related

to Deutsche Banks, unlawful activities in violation of Business and Profession Code Section 17200, Peter Clark has incurred and continues to incur substantial time dedicated to these cases and/or attorneys' fees. 202) Peter Clark is entitled to restitution of all gains, benefits, fees and monies obtained by Defendants from the wrongful conduct alleged above in an amount according to proof. Wherefore, Peter prays for relief according to proof as set forth hereinafter. (a) That this action be tried before a jury; (b)For general property damages according to proof; (c) For general personal injury damages according to proof; (d) For damages for loss of income and business advantage that could reasonably be imputed. (e) For double damages as allowed by law (f) For punitive damages; (g)For an award of reasonable attorneys' fees. (h) For an award to Peter Clark of costs of suit incurred herein on all causes of action; (i) Such other and further relief as the court shall deem just and proper.

SEVENTH CAUSE OF ACTION MALICIOUS PROSECUTION 203) Peter Clark re-alleges paragraphs 1 through 202 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress;
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation
204)

Those purporting to act as agents of Deutsche Bank National Trust Company, an

unincorporated association that is alleged to be wholly owned by Deutsche Bank AG of Frankfurt Germany, acting in collusion if not conspiracy as officers of the court under the color of law used the artifice of an alleged assignment of the Note on the Subject Property to sabotage due process and the rights of Mr. Clark, his frail and elderly tenant, and to other residents to the detriment of said residents,
205)

To perpetuate their scheme, alleged Deutsche agents conjured a

story related to a Note secured by a deed of trust against Mr. Clarks home to provide the pretense that Deutsche was an innocent third party purchaser. Said scheme relied on the Deutsche artifice to generate a story to rationalize the alleged assignment that they knew to be false. 206) Alleged agents of Deutsche Bank National Trust Company, knew, or should have known that they lacked standing, authority, and/or probable cause to take possession of Mr. Clarks home, and that their actions were in violation of the Due Process clause of the Fourteenth Amendment and other law to violate Mr. Clarks Fifth Amendment rights by Unlawful Taking,
207)

Alleged Deutsche agents acted with oppression and malice in prosecuting

litigation against Mr. Clark during the time of the automatic stay of Mr. Clarks bankruptcy as a key element of their damaging acts as described herein. Said alleged Deutsche agents acts were in reckless disregard of Mr. Clark's rights and the consequences that they might suffer, and with the intent to injure Mr, Clark in his financial and personal interests, and Peter is therefore entitled to recover punitive damages from these defendants, and each of them, for the commission by each of them of this tort.
208)

Alleged Deutsche agents acted with further oppression and malice in their
-66-

misrepresentation, concealment, and other deceptive practices; violation of bankruptcy laws

COMPLAINT

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

including Section 554; and unfair, unlawful, and fraudulent business practices in violation of California Business and Professions Code Section 17200 et seq.. Said violations of law have caused economic duress to Mr. Clark and has caused pain and suffering. As a proximate result of these actions by alleged Deutsche agents, and each of them, Mr. Clark has been damaged as more fully described above in an amount to be ascertained at trial. Wherefore, Plaintiff prays for relief according to proof as set forth hereinafter. a. That this action be tried before a jury; b. For general property damages according to proof; c. For general personal injury damages according to proof; d. For punitive damages; e. For an award of reasonable attorneys' fees. f. For an award to Plaintiff of costs of suit incurred herein on all causes of action; g. Such other and further relief as the court shall deem just and proper.

8th CAUSE OF ACTION MALICIOUS ABUSE OF PROCESS 209) Plaintiff re-alleges paragraphs 1 through 208 hereinabove and all

other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation
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COMPLAINT

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

210)

Those purporting to act as agents of Deutsche Bank National Trust Company, an

unincorporated association that is alleged to be wholly owned by Deutsche Bank AG of Frankfurt Germany, have acted in collusion as officers of the court under the color of law to induce the Honorable Bruce Mills to act in violation of the Due Process clause of the Fourteenth Amendment and the federal authority of the bankruptcy court and the Bankruptcy Act to violate the Fifth Amendment- Unlawful taking, for which Bruce Mills had no jurisdiction as a judge of the Superior Court. 211) Said alleged Deutsche agents caused the Honorable Bruce Mills to act unconstitutionally and in violation of federal law as an individual outside of his capacity as a judge of the Superior Court of California, and/or as a defacto agent of Deutsche Bank National Trust Company. No such agent is protected by the state's sovereign immunity, and such agents are subject as individuals to the various remedies delineated herein.
28 U.S.C. 2202 states that "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party." 212)

To perpetuate their scheme, alleged Deutsche agents conjured

stories to provide the pretense that Deutsche was an innocent third party purchaser of the Note secured by Mr. Clarks home. Said scheme relied on the Deutsche artifice to generate a story to rationalize the alleged assignment that they knew to be false. 213) Those purporting to act as agents of Deutsche Bank National Trust Company knew, or should have known that they lacked standing, authority, and/or probable cause to take Mr. Clarks home, and that their actions were in violation of the Due Process clause of the Fourteenth Amendment and the federal authority of the bankruptcy court and the Bankruptcy Act and other law to violate Mr. Clarks Fifth Amendment rights by Unlawful Taking,
214)

Alleged Deutsche agents acted with oppression and malice in abusing civil

process in litigation against Mr. Clark during the time of the automatic stay of Mr. Clarks bankruptcy as a key element of their damaging acts as described herein. Said alleged Deutsche agents acts were in reckless disregard of Mr. Clark's rights and the consequences that they might suffer, and with the intent to injure Mr. Clark in his financial and personal interests, and Mr. Clark is therefore

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

entitled to recover punitive damages from these defendants, and each of them, for the commission by each of them of this tort.
215)

Alleged Deutsche agents acted with further oppression and malice in their

misrepresentation, concealment, and other deceptive practices; violation of bankruptcy laws; and unfair, unlawful, and fraudulent business practices in violation of California Business and Professions Code Section 17200 et seq. Said violations of law have caused economic duress to Mr. Clark and has caused pain and suffering. As a proximate result of these actions by alleged Deutsche agents, and each of them, Mr. Clark has been damaged as more fully described above in an amount to be ascertained at trial. Wherefore, Plaintiff prays for relief according to proof as set forth hereinafter. h. That this action be tried before a jury; i. For general property damages according to proof; j. For general personal injury damages according to proof; k. For punitive damages; l. For an award of reasonable attorneys' fees. m. For an award to Plaintiff of costs of suit incurred herein on all causes of action; n. Such other and further relief as the court shall deem just and proper.

NINTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

216)

Peter Clark re-alleges paragraphs 1 through 215 hereinabove and all other paragraphs hereinafter with the same force and effect as if herein set forth. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs:

26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not
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COMPLAINT

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

140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation

217)

Acting under the color of law, Defendants worked a denial of Peter Clark's rights,

privileges or immunities secured by the United States Constitution or by Federal law33, to deprive Mr. Clark of title and/or titular possession of the home of he last thirty years, where Mr. Clark raised his children.
218)

By acting in violation of Section 554 of the Bankruptcy Code and thus while Mr. Clark

was prevented from defending himself and his home and without notice to the Trustee, alleged Deutsche agents conspired for the purpose of impeding and hindering the due course of justice, with intent to deny Mr. Clark equal protection of laws, and did so without standing and in a way that would deprive Mr. Clark of due process of law.34
219)

By refusing or neglecting to prevent such deprivations and denials to Plaintiff, and

even refusing to meet-and-confer, alleged Deutsche agents depriving Plaintiff of his rights, privileges, and immunities as guaranteed by the Fourth, Fifth, and/or Fourteenth Amendments to the Constitution of the United States,35 and has caused Mr. Clark to question the impartiality and integrity of the legal system of the United States in general and California specifically which Mr. Clark once thought was exemplary, the envy of all, and the peer of none.
220)

In so doing Deutsche and/or those acting in an agency relationship thereto are alleged to

have violated the Fair Debt Collection Practices Act, Title 15 Chapter 41 Subchapter V 1692 Subchapter VDebt Collection Practices 1692e- False or misleading representations; and/or 1692f. Unfair practices; and/or the Bankruptcy Act; and/or CCP 473; and/or engaged in money laundering as has been defined by the Comptroller of Currency.

Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); County of Sacramento v. Lewis. 523 U.S. 833 (1998); Youngberg v. Romeo, 457 U.S. 307, 315 (1982) 35 Miga v. Holyoke, 398 Mass. 343, 349, 350 (1986) (deprivation of pretrial detainee's substantive due process rights where state seeks to impose punishment without a constitutional adjudication of guilt). Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979). -7033 34

COMPLAINT

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

221)

Said agents knew, or should have known, that their acts would cause, and did cause,

immense pain, suffering, and emotional distress and an alienation of affection to Mr. Clark out of proportion to the monetary values of Mr. Clarks home. 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation

RICO CLAIMS
TENTH CAUSE OF ACTION RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT18 U.S.C. 1962(c)
222)

Mr. Clark re-alleges paragraphs 1 through 221 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs:

26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation At all relevant times, Deutsche Bank National Trust Company (Deutsche); those who allege to represent Deutsche in a legal capacity who knew, or should have known about the violations of law, and due process in which they were engaged; and others who have acted in
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COMPLAINT

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

an agency relationship constituted an enterprise, within the meaning of 18 U.S.C. 1961(4) and 1962(c). Deutsches agents are individual persons, within the meaning of 18 U.S.C. 1961(3) and 1962(c), who associated with and/or participated in the conduct of said enterprises affairs.
223)

Defendants filings and failure to perform also constitutes extortion, including under the Deutsches agents conducted, participated in, engaged in, conspired to engage in, or

color of law and violation of 18 U.S.C. 894; and 18 U.S.C. 1344.

224)

aided and abetted, Deutsches affairs through a pattern of racketeering activity within the meaning of 18 U.S.C. 1961(1), 1961(5) and 1962(c). Defendants pattern of racketeering activity consisted of: (i) Use of extortion under the color of law provided by their malicious prosecution and/or abuse of process. Said acts of extortion were in violation of 18 U.S.C. 1951; (ii) intimidation and threatens to corruptly persuade Peter Clark, or attempts to do so, or engage in misleading conduct toward Peter Clark, with intent to influence, delay, dissuade, or prevent Peter Clark from acting in keeping with his lawful rights (iii) a scheme to defraud facilitated by litigation filed during the time of the automatic stay in Peter Clark bankruptcy and prosecuted in violation of federal law and the authority of the Bankruptcy Trustee to obtain Peter Clarks money or property by means of false or fraudulent pretenses, representations, or promises; and, for the purpose of executing such scheme, placed or foreseeably caused to be placed in a post office, or authorized depository for mail, matter that furthered the scheme to defraud, including but not limited to pleadings and other papers related to their litigation, whether or not filed with the Superior court with allegation that they knew to be false, as memorialized by the proofsof-service as a key element of their fraud.
225)

Deutsche and/or their agents committed mail fraud in violation of 18 U.S.C 1341,

each time they used or foreseeably caused the mails to be used to distribute Deutsches mailings of their filings with the Superior Court of California related to lawsuits and motions that Deutsche has prosecuted against Mr. Clark for the demonstrated goal of taking his home, office, and workshop and for the larger alleged goal of economic duress described throughout these pleadings. In so dong Deutsche has used the mail or any facility in interstate or foreign commerce with intent to distribute the proceeds of extortion or otherwise promote, manage, establish, or carry on a scheme to extort, and thereafter performed or attempted to perform said acts, including in filing and mailing pleadings related to litigation against Peter Clark during the time of Peter Clarks Bankruptcy for the purpose of causing violation of 18 U.S.C. 1952.

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226)

These acts all occurred after the effective date of RICO and more than two such acts

occurred within ten years of one another. These acts are prohibited under the RICO Act:
TITLE 18 PART I CHAPTER 96 1962. Prohibited Activities: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 227) As a direct and proximate result of, and by reason of, the activities of the Respondents

and their conduct in violation of 18 U.S.C. 1962(d), Peter Clark has been injured in his businesses, person, and/or property within the meaning of 18 U.S.C. 1964(c). Wherefore, Mr. Clark prays to recover threefold the damages he has sustained together with the cost of the suit, including reasonable attorneys' and experts' fees and costs.
(in alternative)

ELEVENTH CAUSE OF ACTION Racketeer Influenced And Corrupt Organizations Act 18 U.S.C. 1962(d) (Conspiracy)Mr. Clark re-alleges paragraphs 1 through 227 hereinabove and all other paragraphs hereinafter as though fully set forth herein. Plaintiff in particular, reference this cause of action, directs the parties to re-alleged Paragraphs: 26-39 Synopsis of Pre-Petition Events Leading to Post Petition Damaging Acts; 40-44 Post Petition Violations of Federal Authority (Bankruptcy Act) and Due Process; 45-49 -Deutsche Refuses to Meet & Confer RE: Abandonment of Asset by Trustee; 50-97- VIOLATIONS OF (Non Bankruptcy) LAW; 98- 104-Further Violations of Law; 105-112- The Sheriff Verifies that Service was Deficient; 113-119 Bad Faith Deception, Fraud, and 15 USC 1962e]; 120-122 Ex parte Young; 28 U.S.C. 2201/2202; and 42 U.S.C. 1983 Redress; 123-139 Plaintiff Acted In Good Faith And Defendants Have Not 140-146- Deception and Undue Influence 147-160 Deutsches Pattern of Fraud Constitutes Racketeering 161-Contra Costa Courts Had No Jurisdiction; 163- Summation
228) 229)

At all relevant times, Deutsche Bank National Trust Company (Deutsche); those who

allege to represent Deutsche; and others who have acted in an agency relationship constituted an enterprise, within the meaning of 18 U.S.C. 1961(4) and 1962(c). Deutsches agents
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COMPLAINT

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

are individual persons, within the meaning of 18 U.S.C. 1961(3) and 1962(d), who associated with and/or participated in the conduct of said enterprises affairs.
230)

In the alternative to the tenth Cause of Action, Deutsche and their agents/clients/ co-

conspirators conspired to conduct or participate, directly or indirectly, in said enterprise. Defendants intended to further their endeavor that, if completed, would satisfy all of the elements of a substantive RICO criminal offense adopted the goal of furthering or facilitating the criminal endeavor. 231) Peter Clark and others were injured by Defendants overt acts in furtherance of their illegal scheme and said overt acts were acts of racketeering or otherwise unlawful under the RICO statute: (a) A scheme to defraud (see supra 31-119) that was knowingly and intentionally devised to defraud Peter Clark by means of false or fraudulent pretenses, representations, or promises; and, for the purpose of executing such scheme, Defendants and/or their agents have placed or foreseeably caused to be placed in a post office, or authorized depository for mail, matter that furthered the scheme to defraud (including but not limited to all pleadings in the their case in Contra Costa County filed in violation of the automatic bankruptcy stay; and threats to and actual disclosure of attorney-client privileged documents during a time when Petitioner was unable to enjoin or otherwise restrain Deutsche from their damaging acts because of Plaintiffs bankruptcy and the automatic stay and jurisdiction of the trustee thereto. Defendants filings with the Superior Court became the primary vehicle for their fraud. Thus, all of the service-by-mail which are recorded by the innumerable proofs-of-service that Defendants have caused to be filed with the Court Clerk constitute sworn statements of mail fraud in violation of 18 U.S.C 1341. (b) Defendants filings and failure to perform also constitutes extortion, including As a direct and proximate result of, and by reason of, the activities of the Respondents under the color of law and violation of 18 U.S.C. 894; and 18 U.S.C. 1344.
232)

and their conduct in violation of 18 U.S.C. 1962(d), Peter Clark has been injured in his businesses, person, and/or property within the meaning of 18 U.S.C. 1964(c). 233) These acts all occurred after the effective date of RICO and more than two such acts
TITLE 18 PART I CHAPTER 96 1962. Prohibited Activities: -74-

occurred within ten years of one another. These acts are prohibited under the RICO Act:

COMPLAINT

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(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 234)

As a direct and proximate result of, and by reason of, the activities of the Respondents

and their conduct in violation of 18 U.S.C. 1962(d), Peter Clark has been injured in his businesses, person, and/or property within the meaning of 18 U.S.C. 1964(c).

Wherefore, Mr. Clark is entitled to recover threefold the damages he has sustained together with the cost of the suit, including reasonable attorneys' and experts' fees and costs. Respectively Submitted, ___________________________ January 19, 2011 s/Peter Clark, in pro per Date

VERIFICATION

I, Peter Clark, state that I have read the foregoing and know its contents. The same is true of my own knowledge, except as to those matters that are stated on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day of January, 2011, in Pleasant Hill, California.
___________________________

s/Peter Clark

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COMPLAINT