Petition for ReHearing

PERRY V. JPMORGAN CHASE BANK NA et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

LEIGHTON LEE PERRY

Plaintiff and Appellant,

v. FEDERAL NATIONAL

MORTGAGE ASSOCIATION, JP MORGAN CHASE BANK NA,

QUALITY LOAN SERVICE CORP,

Defendants and Respondents.

Court of Appeal No. A139655

(Super. Ct. No. MSC10-02914)

Appeal From a Judgment

Of The Superior Court, County of CONTRA COSTA

Hon. Laurel S. Brady, Judge

_________________________________________

APPELLANTS PETITION FOR REHEARING _________________________________________

Leighton Lee Perry XXXXXXXXXXX XXXXXXXXXXX XXXXXXXXXXX

Appellant / Real Party, pro se


TABLE OF AUTHORITIES 1 INTRODUCTION 1 DISCUSSION 1

I. Rehearing is Required Because The Opinion Misinterprets Appellants Argument and Misstates and Disregards Relevant Material Facts; And As a Result, Reached a Flawed Conclusion. ........................................... 1

A. Appellants Position Is that By Taking Events Out of Chronological Order The Trial Court Shifted the Focus From the States Right of Entitlement to Real Property To a Wrongful Foreclosure Action. 2

B. The Opinions Presentation of Material Facts Misstated and Avoided Facts Prejudicial to Respondents. 2

C. The Courts Presentation of a Focus of Hypothetical Agency Was Not Advanced By Any Respondent In Pleadings Or Oral Argument. 5

D. The Courts Presentation of an Issue of Tender Ignored the Multiple Considerations of the Issue by the Trial Court. 8

II. Rehearing Should Be Granted to Reconsider the The Trial Court Denial of Due Process Preventing Appellants Discovery of Corroborating Business Records by Electively Abdicating Judicial Powers to a Discovery Facilitator. ............................................................................ 8

III. Rehearing Should Be Granted to Reconsider the Opinions Interpretation of the Relevant Statutes..................................................... 9

A. Rehearing Should be Granted to Reconsider the Interpretationof Gomes vis--vis Civil Code 2924. 9

B. Rehearing Should Be Granted to Reconsider the Interpretation of Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR 3d 815 / Stockwell In Light of the Apparent Bid-Rigging Actions Taken by Respondents. 10

IV. Rehearing Should Be Granted to Reconsider the Opinions Ruling on Federal Preemption of 2943 and Contract Language. ......................... 11

A. The Court Failed to Consider the Express Exceptions to HOLA and RESPA for Contract Torts and Real Estate Law (Estate Entitlement). 11


B. The Court Failed to Show How The Contract Language Waiver Was Preempted by Federal Law. 14

CONCLUSION 14 CERTIFICATION OF LENGTH 1


TABLE OF AUTHORITIES

Cases

Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR 3d 815.....................10

Cuomo v. Clearing House Association, L L C (2009), 557 U.S. 519..........13

Garcia v Industrial Acc. Com (1953) 41 Cal.2d 689, 694 ............................6

In re Jessup (1889) 81 Cal. 408, 471 ............................................................1

Jelsing v. MIT Lending (S.D.Cal., July 9, 2010, No. 10cv416 ....................12

Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729 ..........13

McCauley v. Home Loan Investment Bank, F.S. (2013) U.S. Court of

Appeal 4th Circuit #12-1181 ..................................................................12

People v. Peevy (1998) 17 Cal.4th 1184, 1205 ..............................................1

San Francisco v. Pacific Bank (1891) 89 Cal. 232, 25 .................................1

Stockwell v. Barnum, (1908) 7Cal.App.413,416-17 ...................................10

Rules

Rule 8.268(a) .................................................................................................1

Rule 8.500(c)(2) ............................................................................................1

Statutes

12 U.S.C. 2605(k)(1)(C)...........................................................................12

12 U.S.C. 2605(e)(1)(A)............................................................................13

Cal Civ Code 2923.55(b)(1)(B)(i).............................................................13

Cal Civ Code 2924(a)(6) .............................................................................6

Cal Civ Code 2932.5 .................................................................................10

Civ. Code 2924............................................................................................9

of 15 PERRY V. JPMORGAN CHASE BANK NA et al

MOTION TO REQUEST ORAL ARGUMENTS

INTRODUCTION

Pursuant to Rule 8.268(a), Appellant Leighton Lee Perry petitions this Court for

rehearing of the basis of the Opinion filed June 10, 2014 (Opinion). Rehearing is

required because the Opinion relies on erroneous hypothetical and factual premise

concerning Appellants argument and misstates the nature of a case of property title with

that of wrongful foreclosure. Moreover, rehearing is warranted to reconsider the

Opinions resolution of statutory construction and application of relevant Supreme Court

precedent.

Petition for rehearing are permitted for the purpose of correcting any error which the

Court may have made in its opinion, or of enabling counsel to direct the attention of the

Court to matters presented at the argument which may have been overlooked in the

decision. (San Francisco v. Pacific Bank (1891) 89 Cal. 232, 25.)

A rehearing may be granted owing to any mistake of law or misunderstanding of

facts (In re Jessup (1889) 81 Cal. 408, 471.) As set forth below, the Opinion contains

several material errors that affect the outcome of the case. The Supreme Court will not

review issues not decided the by the Court of Appeal and accepts as true misstatements of

issues or of fact if no timely petition for rehearing has been filed. (People v. Peevy (1998)

17 Cal.4th 1184, 1205; Cal. Rules of Court, Rule 8.500(c)(2).) As set forth below,

rehearing is appropriate here.

DISCUSSION

I. Rehearing is Required Because The Opinion Misinterprets Appellants Argument and Misstates and Disregards Relevant Material Facts; And As a Result, Reached a Flawed Conclusion.


A. Appellants Position Is that By Taking Events Out of Chronological Order The Trial Court Shifted the Focus From the States Right of Entitlement to Real Property To a Wrongful Foreclosure Action.

Appellant opened oral arguments with a synopsis reminding the Court that even IF

Respondents are owed this money, their dirty hands from misleading Appellant that they

were the beneficiary by failing to conform to the terms of the deed of trust to supply the

beneficiary statement when lawfully requested makes them either tortfeasors, or

criminals, subject to actual, punitive, and exemplary damages, as well as criminal

penalties. For this reason Appellant requested leave to amend his complaint under unfair

practices under Californias UCL in the event federal preemption was determined by this

Court1.

B. The Opinions Presentation of Material Facts Misstated and Avoided Facts Prejudicial to Respondents.

The following material facts were misstated in the Opinion:

That the original promissory note was presented to Appellant at his disposition [Opinion Fn 3] when it was actually introduced2 as I am going to

show you what is called an Adjustable Rate Note. Substituting a for the

and dropping the word original from the Opinion would result in a shift of

consideration from an actual to a hypothetical (a promissory note) on the part

of the deposed party. Furthermore, it calls into question the overruling of the

objection of foundation3 by Appellant on the trial courts part since

Respondents had failed to produce the original document to the trial court or

1 Appellant is unsure whether this point was presented at oral argument as only uncertified copies of the audio are available from the court for transcription. 2 [Chavez Declaration ISO MSJ: Exh 1 Pg 16][Pltf Stmt Objections to MSJ App Apndx Pg 326 ln22] 3 [App Apndx Pg 326 et seq]


explain how a document unavailable in paper format inexplicably

materialized for the deposition.

That Appellant admitted to having signed both [Fn 3] the documents presented at the deposition when actually4:

1. This statement was made by Appellant in the deposition It really doesnt

show pressure points of someone that made a handwritten signature, so

yeah, with that objection ;

2. Appellants admission was to this question: Mr. Perry, youve admitted

that you did sign a deed of trust and you signed an adjustable rate note and

a promissory note back in 1988.

The Opinion states Plaintiff presented no evidence that he did not sign any of these documents in an inappropriate display of bias for Respondents when

the facts are:

1. It is an irrelevant conclusion since these documents apparently referred to

copies of hypothetical loan documents;

2. Appellant was denied access to the alleged documents when attempting to

arrange for a forensic document analyst to accompany him to authenticate

the document.5 ;

3. the trial court denied Appellant discovery to the common business records

that would depict the transformation of the original paper document that

became unavailable in paper format and then materialized out of thin

4 [Chavez Declaration ISO MSJ: App Apndx Pg 189] 5 This technologically challenged court should note the President of the United States uses an AutoPen that uses a scanned image of his signature to direct the motion of the pen on a piece of paper when he is out of the office. See http://www.politico.com/story/2013/01/autopen-barack-obama-10-facts-85720.html for an example.


air for the deposition as an adjustable rate note ;

4. Declarations were based on belief and knowledge, but failed to identify

which documents were on personal knowledge6, and thereby, admissable.

The phrase 'authenticity of the documents' should read 'authenticity of some

documents' [Opinion FN 4].

Clearly there was no tie to the original documents and those presented at the

deposition to which Appellant could admit to signing.

The following material facts were not mentioned in the Opinion:

That neither a copy of the Subject Note nor a beneficiary statement7 was delivered to Appellant until after a Notice of Default was recorded;

That Respondents sent a letter to Appellant stating the document requested (copy of the Subject Note) was not available in paper, microfiche, or image

format before the notice of default was recorded;

The special endorsement to Federal Home Loan Bank San Francisco8, is indicative of the lack of beneficiary interest in the Subject Loan by Federal

National Mortgage Association (FNMA) and their alleged successors in that

interest. No endorsement from FHLB-SF exists.

Corroborating business records seem to indicate the promissory note was not delivered to Fannie Maes vault system as either the actual note or a bailee

letter, rendering the recorded assignment of 1991 an authentic act of perjury to

which Appellant objected on the grounds of foundation under Herrerra.

6 [Sierra Declaration ISO MSJ: App Apndx Pg 197] except for those facts expressed on information and belief, I have personal knowledge 7 The term beneficiary statement is used in 2943, and is equivalent to the Statement of Obligation used in the language of the deed of trust. 8 [App Apndx Pg. 205; Stmt Facts in Opposition to MSJ]


The trial court prejudiced Appellants right to due process by denying his motions to compel the business records depicting the transfer of either the

Subject Note or a bailee letter among Respondents.

Although the Court addressed the request for a statement of decision of the amount paid by any party as form, not substance

The following material facts were disallowed from consideration in the Opinion:

Had this Court actually read the portion of the deposition found in the Chavez

Declaration9 they would have seen why Appellant attempted to notice the third party

payment arranged by Attorney General Kamala Harris from JP Morgan Chase Bank, NA

(JPM) to the mortgage backed securities held by CalPERS that make any remaining

balance on the Subject Loan allegedly held by JPM, as alleged successor to Washington

Mutual, indeterminate absent a production of a beneficiary statement10 reflecting third

party payments. A beneficiary statement reflects receipt of payments from either a

servicer or a borrower, where a statement from the servicer only depicts fees charged and

payments from the borrower and to the beneficiary. In other words, with a servicer there

are two sets of books. There are sources of credits to a loan available to the beneficiary,

such as foreclosure insurance payouts, or a legal agreement with a government body that

provides recoupment of losses of funds as a result of (unadmitted criminal) conduct, that

are unknown to the servicer.

C. The Courts Presentation of a Focus of Hypothetical Agency Was Not Advanced By Any Respondent In Pleadings Or Oral Argument.

9 [App Apndx: Pg 190] 10 A beneficiary statement reflects receipt of payments from either the servicer or the borrower, where a statement from the servicer only depicts payments from the borrower and to the beneficiary. With a lender / servicer there are two sets of books, and there are sources of credits to a loan available to the beneficiary that are unknown to the servicer, such as a legal agreement with a government body that provides recoupment of losses of funds by replacing cash flow from defaulted loan payments.


Where the evidence necessary to establish a fact that is essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue even though it is not the party asserting the claim. [Garcia v Industrial Acc. Com (1953) 41 Cal.2d 689, 694; Wigmore Evidence 2d ed. 1940 Sec 2486; Witkin Cal. Evidence (1958) Sec 56(b).]

A thoughtful reading of the notice of default11 implies an agency relationship with the

By: before LSI Titles name, and QLS is identified AS AGENT FOR

BENEFICIARY. The unintelligible issue presented by the court does not address why

the author of the notice neglected to identify JPM as an agent in the same manner as was

QLS. Furthermore, the Opinion presents false facts in stating JPMorgan in turn referred

the matter to QLS to file the notice of default and Although the notice does not identify

the beneficiary explicitly, it does refer inquiries to JP Morgan. The opinion does not

explain why JPM, as an agent of the beneficiary, would be contacted at the offices of

QLS, especially since their subsidiary, Chase Home Loans, Inc., was the servicer at the

time.

The relevant statute, 2924(a)(6) states

No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

Here, there is a question of the beneficiary interest, no original trustee mentioned, and no

designation evidenced among multiple possible agents of the alleged beneficiary.

What is more troubling in this inappropriate issue that was not raised by any party,

besides the obvious bias by the Court for the party presenting a MSJ, is that the Court has

no problem with a title-related document where NONE of the parties mentioned were

11 [App Apndx Pg 259]


parties to the original contract or to recorded title documents. When questioned why

Respondents would contrive such a Rube Goldberg document instead of just doing the

assignment first, thereby avoiding the apparent bid-rigging that would result from a

clouded title at the time of the notice, the Court had no answer, and Respondents did not

support the Courts hypothesis of agency at oral argument. The Court couldnt even point

to responses to forms interrogatory showing JPM or FNMA considered JPM an agent.

The referral to QLS12 stated FNMA was the investor and JPM was the beneficiary. The

title insurance company said FNMA was the investor and JPM was the beneficiary13; QLS

stated FNMA was the investor and JPM was the holder of the note14; the trial judge

stated JPM was the beneficiary (for who else would know the terms of the default). The

sole basis of this hypothetical issue was one of 2 Powers of Attorney naming JPM and

McCarthy & Holthus, which were evidenced by QLS and Appellant, respectively, to

show the perjury on the forms interrogatories regarding agency produced by JPM and

FNMA who stated no such agency. The Opinion does not state why JPM was the agent

of the beneficiary instead of McCarthy & Holthus.

The Appellate Court was so confused by their agency issue they could not proffer a

motive for the multiple beneficiary identities when asked why Respondents would

contrive such a situation (indicating to the public a clouded title at the time of the notice

of default) when they could have just made the correcting assignment before issuing the

notice. However, by foisting this issue on the parties at oral argument, the underlying

problem with the subsequent assignment and substitution was denied the time for

exploration.

12 [App Apndx Pg 297 see 8(a)]; A copy of the referral by Lender Processing Services to QLS was inadvertently copied as blank pages by Appellant in his Appendix. 13 [App Apndx Pg 345] 14 [App Apndx Pg 348 ln 7]


D. The Courts Presentation of an Issue of Tender Ignored the Multiple Considerations of the Issue by the Trial Court.

The issue of tender was exhaustively litigated and reviewed by the trial court in

motions for temporary restraining order (which included supplemental briefs requested

by the trial court), a later motion to review terms of the TRO, and the motions for

summary judgment (MSJ)15. The presumption for a MSJ is given to the opponent of the

motion, in this case the Appellant, who questioned an amount owing after Respondents

refused to identify themselves as the beneficiary as a result of their illegal actions and

breach of contract. There are no material facts evidenced by common business records

that either FNMA or JPM purchased and or sold the Subject Loan, which makes sense in

light of the special endorsement to Federal Home Loan Bank SF on the back of the

copy of the note sent to Appellant in August, 2010.

Without benefit of having common business records from the alleged investor that

shows any balance remaining (no beneficiary statement was ever produced), the servicer

portrayed a balance of less than $70k on a home with no other liens that sell for $400k

and up. Apparently the justices of this Opinion think it is just to require Appellant to sell

his home in order to tender the amount owing to an stranger claiming note holder in

order to bring an action to save his home from being sold at auction.16

II. Rehearing Should Be Granted to Reconsider the The Trial Court Denial of Due Process Preventing Appellants Discovery of Corroborating Business Records by Electively Abdicating Judicial Powers to a Discovery Facilitator.

Instead of addressing this issue the Opinion merely infers that Appellant produced

no evidence, even in light of the extreme action of Appellant to request a statement of

decision to illustrate the violation of his rights to discovery of relevant documents.

15 [App Apndx Pg 402] 16 Imagine the results if this were the justices Candidates Statement in their bid for affirmation before the voters


The Opinion states Appellant made no showing that the court abused its discretion

despite the inclusion in the appendix17 of Appellants [unopposed] motion for

reconsideration of motions to compel discovery that was pending before the court and

conveniently dismissed as a part of the order on the MSJ by the trial court. An example of

the denial of due process can be found in the trial court ruling That the failure of

Fannie Mae to provide a timely verification to the responses is the result of mistake,

inadvertence or excusable neglect, with no accompanying description of the

circumstances the ruling was based upon. So which was it? Plaintiff was prejudiced by

the untimely verification due to the draconian discovery rules denying further discovery

that would result if he did not proceed immediately with a motion to compel. This

discovery request included the common business records depicting the transfer of the

promissory note by physical location or bailment, and the common business records

showing the purchase and or sale of the Subject Loan among Respondents. This affects a

partys right to equitable relief as a point of law if no loss can be shown by that party.

III. Rehearing Should Be Granted to Reconsider the Opinions Interpretation of the Relevant Statutes.

A. Rehearing Should be Granted to Reconsider the Interpretationof Gomes

vis--vis Civil Code 2924. Cal. Civil Code 2924 has been deemed all inclusive by case law, and because it

neither states nor denies a homeowners right to question the identity of the Party Entitled

To Enforce (PETE), case law has issued to dismiss cases pleading a standing cause of

action such as the instant case. 2924 neither states nor denies provisions for assignment

after a notice of default, but it does state provisions for substitution of trustee after such

notice. Separate statutes govern assignments and substitutions outside of 2924. Why is

17 [App Apndx: Pg 390 et seq]


the limitation applied against homeowners defending property title when the same

limitation should be applied against assignments executed after the notice of default, as in

this case, using the same legal basis of logic?

If the substitution of trustee after the notice of default was made by the assignee of an

assignment made after the notice, what is the status of the alleged trustee? And if that

trustee files a notice of trustee sale, is that not slander of title?18

B. Rehearing Should Be Granted to Reconsider the Interpretation of Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR 3d 815 / Stockwell In Light of the Apparent Bid-Rigging Actions Taken by Respondents.

The circumstances shown in this case were unforeseen by the Stockwell19 court upon

which Calvo20 was based, and with the demise of Cal Civ Code 2932.5 for deed of trust

loans, the law now condones the acts of a stranger beneficiary to the contract or recorded

title documents to substitute the trustee for any deed of trust loan, thus making the status

of title uncertain to the subsequent purchaser and public, thereby denying finality

between parties in contradiction to the stated intent of the Legislature.

The existence and details of unrecorded assignments of a note endorsed in blank are

now only found in private and corporate records, unavailable to the public. The assignees

of the hidden assignments have the power to substitute trustees, making it possible that at

any time a stranger can record a substitution of trustee. The federal TILA provision21 that

such assignees are required to notify the borrower of such assignments (including contact

information for an agent having authority to act on behalf of the assignee) provides a 1

year statute of limitations to bring a cause of action. This case amply demonstrates such a

18 This question was partially raised at oral arguments, but interrupted by a question from a judge about the hypothetical agency issue raised by the Court. 19 Stockwell v. Barnum, (1908) 7Cal.App.413,416-17 20 Calvo v HSBC Bank (2011) 199 CA4th 118, 130 CR 3d 815 21 15 USC 1641(g)


violation in the alleged assignment from FNMA to JPM where no TILA notice is found

in the record, either of assignment or of agency. Since such notices remain in private

records of the borrower and assignee, title insurance companies are unable to determine a

complete chain of title, which impacts the warrantee they can provide for title insurance.

The wording of 2932.5 includes or other encumbrancers, and recent decisions in

California courts still state the loan was encumbered by a deed of trust. A conflict now

exists with 2924(c) in stating:

A recital in the deed executed pursuant to the power of sale shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice. [emphasis added]

If a deed of trust is not an encumbrance, how can the mortgagor of a deed of trust be

an encumbrancer for value?

IV. Rehearing Should Be Granted to Reconsider the Opinions Ruling on Federal Preemption of 2943 and Contract Language.

Whether Respondents violated federal law, or state law, or the language of the

contract, it remains a fact that Appellant was mislead as to the identity of the beneficiary

interest, and the effect is the same. Appellant was obligated by his signature to protect the

clear title to the Subject Property, and thus was forced to stop making payments in order

not to affirm an illegitimate debt. That is the substance of the law, regardless of the form.

And in most courts across this land, lawbreakers are not afforded equitable relief as a

reward for criminal actions.

A. The Court Failed to Consider the Express Exceptions to HOLA and RESPA for Contract Torts and Real Estate Law (Estate Entitlement).

The Jelsing22 interpretation of disclosure is inappropriately broad as the disclosure

22 Jelsing v. MIT Lending (S.D.Cal., July 9, 2010, No. 10cv416 BTM (NLS)) 2010 U.S.Dist. Lexis 68515, pp. *6-7


referenced only relates to the presentation of documents necessary to originate (or

modify) a loan as part of the lending process. Furthermore, it was based on non-binding

federal case law that over-expanded the cited definitions of servicing and disclosure.

The Jelsing court got away with this travesty because it was uncontested by the

homeowner. Appellant cited23 cases finding that HOLA did not preempt UCL claim based

on misrepresentation but dismissing claim for failure to allege injury, which come under

the tort exception24 (see McCauley v. Home Loan Investment Bank, F.S. (2013) U.S.

Court of Appeal 4th Circuit #12-1181; holding state tort claim for fraud only incidentally

affected lending, it was not preempted by HOLA or its implementing regulation.).

Appellants QWR was originally presented in January, 2010, with a follow-up request

in June, 2010. The Dodd-Frank Act, passed in July 2010, amended certain provisions in

RESPA and added subsections (k)-(m). Section 2605(k)(1)(C) requires the servicer to

take timely action to respond to a borrowers requests to correct errors relating to

allocation of payments, final balances for purposes of paying off the loan, or avoiding

foreclosure, or other standard servicers duties. 12 U.S.C. 2605(k)(1)(C).

2605(k)(1)(D) requires the servicer to respond within 10 business days to a request from

a borrower to provide the identity, address, and other relevant contact information about

the owner or assignee of the loan. 12 U.S.C. 2605(k)(1)(D). A copy of the promissory

note was presented to Appellant in August, 201025. Thus it could be argued that

Respondents came under the Dodd-Frank provisions when they honored Appellants

23 DeLeon v.Wells Fargo Bank, N.A., No. C10-01390 LHK, 2011 WL 311376, at *6 (N.D. Cal. Jan. 28, 2011) 24 12 CFR 560.2(c)(4) 25 [App Apndx: Pg 199 #14]


QWR26. On July 10, 2013, the Consumer Finance Protection Board (CFPB) issued

mortgage rules under Regulation Z and Regulation X pursuant to its authority under the

Dodd-Frank Act. The CFPB further amended the mortgage rules on September 15, 2013

and October 1, 2013. The DoddFrank Acts revisions to RESPA were not in effect as of

the time when Appellant submitted his QWRs to Respondents in 2010. Thus, the deadline

to acknowledge receipt of plaintiffs QWRs was 20 days, as provided in 12 U.S.C.

2605(e)(1)(A), rather than 10 days as provided in 12 U.S.C. 2605(k).

The recent Homeowner Bill of Rights passed in California contains language that

similarly provides for a request for a copy of the note [Cal Civ Code

2923.55(b)(1)(B)(i)]. Also, Cal Civ Code 2943 was set to expire at the end of 2013 and

was restored by the Legislature this year. So apparently the California Legislature is at

odds with the Court (likely due to this Courts ruling on Lopez27) and perhaps thinks the

ruling by the U.S. Supreme Court in Cuomo28 is binding on California courts going

forward with greater protections for homeowner. Neither Lopez nor Jelsing considered

the Cuomo ruling which stated:

Evidently realizing that exclusion of state enforcement of all state laws against national banks is too extreme to be contemplated, the Comptroller sought to limit the sweep of its regulation by the following passage set forth in the agencys statement of basis and purpose in the Federal Register:

What the case law does recognize is that states retain some power to regulate national banks in areas such as contracts, debt collection, acquisition and transfer of property, and taxation, zoning, criminal, and tort

26 The issue of preemption did not come up until Respondents filed their MSJs, during the period the trial court was withholding its decision regarding discovery compulsion motions which, when issued, left Appellant 2 days to respond to 2 MSJs. The trial court had already denied Appellants request to set out the trial date, so Appellant did not consider a motion to amend the FAC to add RESPA violations given the urgency to oppose the 2 MSJs within 2 days. 27 Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 729 28 Cuomo v. Clearing House Association, L L C (2009), 557 U.S. 519


law. [citing a Ninth Circuit case.] Application of these laws to national banks and their implementation by state authorities typically does not affect the content or extent of the Federally-authorized business of banking . . . but rather establishes the legal infrastructure that surrounds and supports the ability of national banks . . . to do business. 69 Fed. Reg. 1896 (2004) (footnote omitted).

B. The Court Failed to Show How The Contract Language Waiver Was

Preempted by Federal Law. To some extent the Opinion was correct that the notice of default was voidable

because it did not provide the language in 19 of the deed of trust regarding the required

statement that the borrower has the right to bring a court action to assert the non-

existence of a default or any other defense of Borrower to acceleration and sale29. The

language in 25 for furnishing the statement of obligation as provided by Section

2943 of the Civil Code of California29 on a form presented by Respondents evidences the

waiver of preemption on their part, to which the Opinion remained silent.

CONCLUSION

The wordsmithing displayed in this Opinion marks it well suited as a product of the

office of Court Shysters in its unabashed and inappropriate bias for Respondents when

the presumption should have been weighted in Appellants favor as opponent to the

summary judgment.

Clearly this Court is attempting to rationalize, and make binding, case law that that a

homeowner has no right to question the beneficiary interest of complete strangers

claiming a balance remaining, whether a debt exists or not, as long as the stranger is

protected by federal bank charter laws. Further, it is a reprehensible position to take in

light of the monetary and civil beneficial interest of clear title and the ability of the public

to readily discover, with some certainty, the chain of estate of real property.

29 [App Apndx: Pg 210]


For the reasons presented above Appellant requests a rehearing and opinion that

reflects the actual material facts and issues of property title of this case.

Respectfully submitted June 16, 2014,

________________________/s/

Leighton Lee Perry,

Appellant pro se


Certification of Length

I, Leighton Lee Perry, Appellant, hereby certify pursuant to the Cal. RC

that the work count for this document is 4,724 words, excluding tables, this

certificate, and any attachment permitted under RC 14(d). This document

was prepared in Microsoft Word, and this is the word count generated by

the program for this document. I declare under penalty of perjury under the

laws of the State of California that the foregoing is true and correct.

Dated: June 16, 2014

________________________/s/

Leighton Lee Perry,

Appellant pro se


PROOF OF SERVICE APPELLANT ROA

PROOF OF SERVICE BY TrueFiling

I declare that I am a citizen of the United States and over the age of 18. My email

address is [email protected], and my phone number is: (925) 949-8377.

On the date shown below, I served the attached per Local Rule Court 16:

APPELLANTS PETITION FOR REHEARING;

With service indicated for the following parties or entities named by:

X Transmitting by internet from my computer using my TrueFiling login a true copy thereof, to the email recipients addressed as follows:

John C. Cox, Esq. Keesal, Young & Logan

Charles Bell, Esq McCarthy & Holthus LLP

450 Pacific Avenue 1770 Fourth Ave San Francisco, California

94133 San Diego, CA 92101

[email protected] [email protected]

I declare under the penalty of perjury that the foregoing is true and correct. Executed

on June 16, 2014, at Martinez, California

_______________________/s/

Leighton Lee Perry, Appellant

Petition for ReHearing

Documents

Transcript of Petition for ReHearing