Preview
RALPH NEAL
1588 Calco Creek Drive
Ep
San Jose, CA 95127
Tel: (408)219-1188 S&p
Plaintiff in Proper ofp
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inp aPC
A Mee,
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SUPERIOR COURT OF CALIFORNIA
Sup
SANTA CLARA COUNTY
Unlimited Jurisdiction
RALPH B. NEAL, Civil Case No. 19CV349019
Plaintiff,
NOTICE OF MOTION; MOTION TO
vs. DISQUALIFY OPPOSING COUNSELS
AND VACATE ORDERS PERTAINING
FIRST AMERICAN TITLE CO; U.S. THEIR LEGAL REPRESENTATIONS;
BANK NA, SUCCESSOR IN INTEREST MEMORANDUM OF POINTS AND
TO LA SALLE BANK, NA, AS AUTHORITIES IN SUPPORT OF
TRUS’ E ON BEHALF OF THE MOTION; DECLARATION OF RALPH
1¢ HOLDERS OF WAMU MORTGAGE NEAL
PASS THROUGH CERTIFICATES
SERIES 2007-OA6; JP MORGAN
CHASE: SE 3CT PORTFOLIO
SERVICING; INC; and DOES 1-20,
inclusive,
Defendants Date: (314-19
Time:
Dept:
F100 Ar
Dept 7
i
NOTICE TO DEFENDANTS AND THEIR COUNSELS OF RECORD
NOTICE IS HEREBY GIVEN that on at or as soon as the matter can
be heard in Department of this Court, Plaintiff RALPH NEAL will move the Court to
Disqualify Opposing Counsels and Disregard and or Strike Orders Pertaining to their Legal
Representations. This Motion is made pursuant to public policy and ethical considerations under
the ABA Model Rules of Professional Conduct . and California Business and Professions Code
Secs. 16240, 17900.
f fh
The Memorandum of Points and Authorities, Declaration of Plaintiff RALPH NEAL, all served
and filed herewith, the records and file herein, and on ch facts, circumstances and law that
may be shown and presented in the hearing.
lel
1¢
Dated: September 24, 2019
12
RALPH NEAY. Plaintiff In Proper
15
1€
17
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20
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2222
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INTRODUCTION
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Defendant U.S. BANK NA.AS TRUSTEE ON BEHALF NATIONAL TRUST AS|
SUCCESSOR TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE
PASS THROUGH CERTIFICTAES SERIES BANK NA, SUCCESSOR IN INTEREST TO LA|
SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF WAMU
MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6; allegedly and
fraudulently represent itself now as foreclosing beneficiary and owner of the property without
showing evidence of chain of legal assignments or legal standing to begin with, from the
defunct WASHINGTON MUTUAL the original lender. The alleged Servicer, SELECT]
1
PORTFOLIO SERVICING, also without legal authority is in collusion with U.S. BANK t
perpetrate their illegal scheme of foreclosure activities.
12
13 The Opposing Counsels is appearing as apparent counsels for both the Defendants SELECT]
PORTFOLIO SERVICING INC and for U.S BANK NA, AS SUCCESSOR IN INTEREST.
15
Upon information and belief, US. BANK NA U.S. BANK NA,AS TRUSTEE ON BEHALF)
16
NATIONAL TRUST AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU
MORTGAGE PASS THROUGH CERTIFICTAES SERIES BANK NA, SUCCESSOR IN
18 INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF|
WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6 is not a actually}
a client of Opposing Counsels and therefore has no absolute legal authority to represent US|
BANK, NA AS TRUSTEE in this action.
The professional conduct of attorneys is challenged today more than ever before. Suc!
challenges undoubtedly serve to put on notice practitioners in the legal professions’s ethical
canons and to follow closer adherence to ethical principles
MEMORANDUM OF POINTS AND AUTHORITIES :
Disqualification of Opposing Counsels to Represent US Bank NA, as they cannot prove
Attorney Client Relationship
The Opondine Counsdle may have been retained by SELECT PORTFOLIO SERVICING INC,
being the Alleged Servicer and Debt Collector on the subject loan and property. However. upon
information and belief, Opposing Counsels have no legal authority to represent U.S. BANK NA,
SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF
THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-
OA6, inasmuch as it was found that communications were only made between Opposing
Counsel and SELECT PORTFOLIO SERVICING, but not with US BANK NA, AS TRUSTEE
11
which allegedly owns the loan. Counsel cannot produce any attorney-client relationship with
US BANK, NA AS TRUSTEE express or implied as also lack of apparent authority to
represent them. This matter is crucial because US BANK NA, AS TRUSTEE pretends to be the
owner of the subject loan and if not properly represented in this lawsuit will have no legal
14
bearing on Defendants defense on Plaintiffs Complaint.
.
It was also found out that opposing counsels did not have a valid fictitious business name as a
17 Limited liability Partnership pursuant to California Business and Professions Code Sec 17900
8 which may jeopardized their legal standing to represent both Defendants, that is even SELECT
PORTFOLIO SERVICING INC. ( Pls see EXHIBITA)
California Business and Professions Code 16240 Misdemeanor: Every person who practices
21 offers to practice, or advertise any business, trade, profession, occupation or calling, or who uses
any title, initials. card or device to indicate that he or she is qualified to practice any business,
tradew, profession or occupation, or calling for which a license, registration, or certificate is
required by any law of this state, without holding a current and valid license, registration or
certificate as prescribed by law is guilty of misdemeanor.
i
Limited Liability Company Fictitious Buisness License Required: California Business and
Professions Code Sec 17900 provides that fictitious business name means:
d) In the case of an individual, a name that does not include the surname of the individual on
aname that suggests the existence of additional owners ,
(4) In the case of a limited partnership that has filed a certificate of limited partnership
with the California Secretary of State pursuant to See 15902.01 of the Corporation
Code and _ in the case of a foreign limited partnership that has filed an application for
registration for registration with the California Secretary of State pursuant to Sec
15902.02 of the Corporation Code, any name other than the name of the limited
partnership as on file with the California Secretary of State.
.
12
PUBLIC POLICY and MODEL RULES OF PROFESSIONAL CONDUCT
Rule 3.3 of the Model Rules of Professional Conduct : Candor Toward the Tribunal,
provides that a lawyer shall not (1) knowingly make a false statement of material fact or law
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be
1€
adverse. (3) offer evidence that a lawyer knows to be false...
18 Here, Opposing Counsels is appearing on behalf
of US BANK U.S. BANK NA,AS
SUCCESSOR TRUSTEE ON BEHALF NATIONAL TRUST AS TRUSTEE ON BEHALF OF
THE HOLDERS OF THE WAMU MORTGAGE PASS THROUGH CERTIFICTAES SERIES
BANK NA, SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON
BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES
SERIES 2007-OA6 as their Counsels when in truth and in fact there is no attorney client
relationship between them. .
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CONCLUSION:
Therefore it is in the interest of justice that Plaintiff respectfully move to disqualify
opposing counsels for US BANK NA AS SUCCESSOR IN INTEREST and vacate any order]
made where Opposing counsels has purportedly been made Attorney of record for them. Should}
the California Business and Professions Code apply, disqualification as to SELECT
PORTFOLIO SERVICING INC is also warranted and respectfully sought.
ft £. i
Date: September 24, 2019
RALPH a NHAL »PlaintiffIn P:
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DECLARATION OF PLAINTIFF RALPH B. NEAL
I, Ralph B. Neal, Plaintiffin the herein action do hereby declare
That | am the Plaintiff in the herein case filed in the Santa Clara County Superior Court.
That I am filing this Motion to Disqualify Opposing Counsels especially as to US BANK
NA, SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON
BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH
CERTIFICATES SERIES 2007-OA6
9
That an Order was made by Judge Helen Williams with an Order dated August 2, 2019.
which included US BANK, NA AS SUCCESSOR IN INTEREST which is not properly
represented and inapplicable as to them.
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That any violation of the California Business Professions Code may jeopardize also the
legal standing of Opposing Counsels to represent SELECT PORTFOLIO SERVICING
INC.
L MYL. fol
I declare under penalty of perjury under the State of California that the foregoing is
true and correct .
darby B/NEAL,
21 Plaintiff/Declarant
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EXHIBIT A
xe) >
KSoe
PROPER
fey: (a) HUGH NGUYEN BIRTH ANG O
(yy 0 CLERK-RECORDER MARRIAGE LICENS
i
TS
FICTINOUS 8U
RY R RA
ie ORANGE OuNT ARCH es
Clerk-Recorder Certificate of Non-Filing
Fictitious Business Name Statement
I, Hugh Nguyen, County Clerk-Recorder for the State of California for the County of Orange,
among whose official duties is the keeping of a record of Fictitious Business Name Statements
tor the County of Orange, do hereby certify that after a diligent search of the index of Fictitious
Business Names, I do not find a Fictitious Business Name Statement in Orange County for:
FBN/Registered Owner Name/Ete
WRIGHT, FINLAY & ZAK
The index searched covers the period from the first effective date of 09/13/2010
to the current date of 9/13/2019
SON
In witness whereof, | have hereunto set my hand ae
and affixed the seal of said County Clerk-Recorder © Ss
of the County of Orange. State of California
This date: 9/13/2019
Hugh Nguyen, County Clerk-Recorder,
alin Me
Néddia Al Obaidi , Deputy Clerk-Recorder-—>
RANC sec NtY sol BR
ya uit
A BLY 01 24
FORNIA ANA RN 92 SANTA ANA, CALIFORNIA 9270 LAG AW CALIFO
(714) 834-2500 + FAX (714) 834-2675 ¢ WWW.OCRECORDER.COM © WWW.OCARCHIVES.COM
PROOF OF SERVICE
I_Jerry_Miles__. do hereby declare
1 That I am over the age of 18 and a resident and employed in San Jose, Santa Clara
County.
2 That on September __, 2019, I served the Defendants the following:
NOTICE OF MOTION; MOTION TO DISQUALIFY OPPOSING COUNSELS AND
1C VACATE ORDERS PERTAINING THEIR LEGAL REPRESENTATIONS;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION;
11 DECLARATION OF RALPH NEAL
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by placing said documents in a self addressed stamped envelope through the US. Postal
Service to:
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WRIGHT, FINLAY & ZAK, LLP
15 Gwen H. Ribar, Esq
James R. Ramos, Esq
16 4665 MacArthur Court, Ste 200
Newport Beach, CA 92660
18 I declare under penalty of California, that the foregoing is true and correct.
nn
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23)
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Executed at: San Jose, CA
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on: Sept 9, 2019
Preview
RALPH NEAL 1588 Calco Creek Drive Ep San Jose, CA 95127 Tel: (408)219-1188 S&p Plaintiff in Proper ofp Sey inp aPC A Mee, ‘oe SUPERIOR COURT OF CALIFORNIA Sup SANTA CLARA COUNTY Unlimited Jurisdiction RALPH B. NEAL, Civil Case No. 19CV349019 Plaintiff, NOTICE OF MOTION; MOTION TO vs. DISQUALIFY OPPOSING COUNSELS AND VACATE ORDERS PERTAINING FIRST AMERICAN TITLE CO; U.S. THEIR LEGAL REPRESENTATIONS; BANK NA, SUCCESSOR IN INTEREST MEMORANDUM OF POINTS AND TO LA SALLE BANK, NA, AS AUTHORITIES IN SUPPORT OF TRUS’ E ON BEHALF OF THE MOTION; DECLARATION OF RALPH 1¢ HOLDERS OF WAMU MORTGAGE NEAL PASS THROUGH CERTIFICATES SERIES 2007-OA6; JP MORGAN CHASE: SE 3CT PORTFOLIO SERVICING; INC; and DOES 1-20, inclusive, Defendants Date: (314-19 Time: Dept: F100 Ar Dept 7 i NOTICE TO DEFENDANTS AND THEIR COUNSELS OF RECORD NOTICE IS HEREBY GIVEN that on at or as soon as the matter can be heard in Department of this Court, Plaintiff RALPH NEAL will move the Court to Disqualify Opposing Counsels and Disregard and or Strike Orders Pertaining to their Legal Representations. This Motion is made pursuant to public policy and ethical considerations under the ABA Model Rules of Professional Conduct . and California Business and Professions Code Secs. 16240, 17900. f fh The Memorandum of Points and Authorities, Declaration of Plaintiff RALPH NEAL, all served and filed herewith, the records and file herein, and on ch facts, circumstances and law that may be shown and presented in the hearing. lel 1¢ Dated: September 24, 2019 12 RALPH NEAY. Plaintiff In Proper 15 1€ 17 18 20 20 2222 24 ae 25 INTRODUCTION 3 Defendant U.S. BANK NA.AS TRUSTEE ON BEHALF NATIONAL TRUST AS| SUCCESSOR TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS THROUGH CERTIFICTAES SERIES BANK NA, SUCCESSOR IN INTEREST TO LA| SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6; allegedly and fraudulently represent itself now as foreclosing beneficiary and owner of the property without showing evidence of chain of legal assignments or legal standing to begin with, from the defunct WASHINGTON MUTUAL the original lender. The alleged Servicer, SELECT] 1 PORTFOLIO SERVICING, also without legal authority is in collusion with U.S. BANK t perpetrate their illegal scheme of foreclosure activities. 12 13 The Opposing Counsels is appearing as apparent counsels for both the Defendants SELECT] PORTFOLIO SERVICING INC and for U.S BANK NA, AS SUCCESSOR IN INTEREST. 15 Upon information and belief, US. BANK NA U.S. BANK NA,AS TRUSTEE ON BEHALF) 16 NATIONAL TRUST AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS THROUGH CERTIFICTAES SERIES BANK NA, SUCCESSOR IN 18 INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF| WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6 is not a actually} a client of Opposing Counsels and therefore has no absolute legal authority to represent US| BANK, NA AS TRUSTEE in this action. The professional conduct of attorneys is challenged today more than ever before. Suc! challenges undoubtedly serve to put on notice practitioners in the legal professions’s ethical canons and to follow closer adherence to ethical principles MEMORANDUM OF POINTS AND AUTHORITIES : Disqualification of Opposing Counsels to Represent US Bank NA, as they cannot prove Attorney Client Relationship The Opondine Counsdle may have been retained by SELECT PORTFOLIO SERVICING INC, being the Alleged Servicer and Debt Collector on the subject loan and property. However. upon information and belief, Opposing Counsels have no legal authority to represent U.S. BANK NA, SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007- OA6, inasmuch as it was found that communications were only made between Opposing Counsel and SELECT PORTFOLIO SERVICING, but not with US BANK NA, AS TRUSTEE 11 which allegedly owns the loan. Counsel cannot produce any attorney-client relationship with US BANK, NA AS TRUSTEE express or implied as also lack of apparent authority to represent them. This matter is crucial because US BANK NA, AS TRUSTEE pretends to be the owner of the subject loan and if not properly represented in this lawsuit will have no legal 14 bearing on Defendants defense on Plaintiffs Complaint. . It was also found out that opposing counsels did not have a valid fictitious business name as a 17 Limited liability Partnership pursuant to California Business and Professions Code Sec 17900 8 which may jeopardized their legal standing to represent both Defendants, that is even SELECT PORTFOLIO SERVICING INC. ( Pls see EXHIBITA) California Business and Professions Code 16240 Misdemeanor: Every person who practices 21 offers to practice, or advertise any business, trade, profession, occupation or calling, or who uses any title, initials. card or device to indicate that he or she is qualified to practice any business, tradew, profession or occupation, or calling for which a license, registration, or certificate is required by any law of this state, without holding a current and valid license, registration or certificate as prescribed by law is guilty of misdemeanor. i Limited Liability Company Fictitious Buisness License Required: California Business and Professions Code Sec 17900 provides that fictitious business name means: d) In the case of an individual, a name that does not include the surname of the individual on aname that suggests the existence of additional owners , (4) In the case of a limited partnership that has filed a certificate of limited partnership with the California Secretary of State pursuant to See 15902.01 of the Corporation Code and _ in the case of a foreign limited partnership that has filed an application for registration for registration with the California Secretary of State pursuant to Sec 15902.02 of the Corporation Code, any name other than the name of the limited partnership as on file with the California Secretary of State. . 12 PUBLIC POLICY and MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3 of the Model Rules of Professional Conduct : Candor Toward the Tribunal, provides that a lawyer shall not (1) knowingly make a false statement of material fact or law (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be 1€ adverse. (3) offer evidence that a lawyer knows to be false... 18 Here, Opposing Counsels is appearing on behalf of US BANK U.S. BANK NA,AS SUCCESSOR TRUSTEE ON BEHALF NATIONAL TRUST AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS THROUGH CERTIFICTAES SERIES BANK NA, SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6 as their Counsels when in truth and in fact there is no attorney client relationship between them. . 24 CONCLUSION: Therefore it is in the interest of justice that Plaintiff respectfully move to disqualify opposing counsels for US BANK NA AS SUCCESSOR IN INTEREST and vacate any order] made where Opposing counsels has purportedly been made Attorney of record for them. Should} the California Business and Professions Code apply, disqualification as to SELECT PORTFOLIO SERVICING INC is also warranted and respectfully sought. ft £. i Date: September 24, 2019 RALPH a NHAL »PlaintiffIn P: 18 19 24 DECLARATION OF PLAINTIFF RALPH B. NEAL I, Ralph B. Neal, Plaintiffin the herein action do hereby declare That | am the Plaintiff in the herein case filed in the Santa Clara County Superior Court. That I am filing this Motion to Disqualify Opposing Counsels especially as to US BANK NA, SUCCESSOR IN INTEREST TO LA SALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-OA6 9 That an Order was made by Judge Helen Williams with an Order dated August 2, 2019. which included US BANK, NA AS SUCCESSOR IN INTEREST which is not properly represented and inapplicable as to them. 12 That any violation of the California Business Professions Code may jeopardize also the legal standing of Opposing Counsels to represent SELECT PORTFOLIO SERVICING INC. L MYL. fol I declare under penalty of perjury under the State of California that the foregoing is true and correct . darby B/NEAL, 21 Plaintiff/Declarant 24 EXHIBIT A xe) > KSoe PROPER fey: (a) HUGH NGUYEN BIRTH ANG O (yy 0 CLERK-RECORDER MARRIAGE LICENS i TS FICTINOUS 8U RY R RA ie ORANGE OuNT ARCH es Clerk-Recorder Certificate of Non-Filing Fictitious Business Name Statement I, Hugh Nguyen, County Clerk-Recorder for the State of California for the County of Orange, among whose official duties is the keeping of a record of Fictitious Business Name Statements tor the County of Orange, do hereby certify that after a diligent search of the index of Fictitious Business Names, I do not find a Fictitious Business Name Statement in Orange County for: FBN/Registered Owner Name/Ete WRIGHT, FINLAY & ZAK The index searched covers the period from the first effective date of 09/13/2010 to the current date of 9/13/2019 SON In witness whereof, | have hereunto set my hand ae and affixed the seal of said County Clerk-Recorder © Ss of the County of Orange. State of California This date: 9/13/2019 Hugh Nguyen, County Clerk-Recorder, alin Me Néddia Al Obaidi , Deputy Clerk-Recorder-—> RANC sec NtY sol BR ya uit A BLY 01 24 FORNIA ANA RN 92 SANTA ANA, CALIFORNIA 9270 LAG AW CALIFO (714) 834-2500 + FAX (714) 834-2675 ¢ WWW.OCRECORDER.COM © WWW.OCARCHIVES.COM PROOF OF SERVICE I_Jerry_Miles__. do hereby declare 1 That I am over the age of 18 and a resident and employed in San Jose, Santa Clara County. 2 That on September __, 2019, I served the Defendants the following: NOTICE OF MOTION; MOTION TO DISQUALIFY OPPOSING COUNSELS AND 1C VACATE ORDERS PERTAINING THEIR LEGAL REPRESENTATIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; 11 DECLARATION OF RALPH NEAL 12 by placing said documents in a self addressed stamped envelope through the US. Postal Service to: 14 WRIGHT, FINLAY & ZAK, LLP 15 Gwen H. Ribar, Esq James R. Ramos, Esq 16 4665 MacArthur Court, Ste 200 Newport Beach, CA 92660 18 I declare under penalty of California, that the foregoing is true and correct. nn 20 22 23) 24 Executed at: San Jose, CA 25 on: Sept 9, 2019