Brian Davies Pro DBNTC 03-30-11 Final

1 GLOBAL CAPITAL LAW, P.C.
GARY HARRE (CBN 86938)

2 DIANE J. BEALL (CBN 86877)
GLOBAL CAPITAL LAW, PC
3 8700 WARNER AVENUE, SUITE 200
FOUNTAIN VALLEY, CALIFORNIA 92708
4 Telephone: (714) 907-4182
Facsimile: (714) 907-4175
5 Email: ghcmecf@gmail.com
6 Attorney for Plaintiff, Brian W. Davies
8 UNITED STATES BANKRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA
9 RIVERSIDE DIVISION
10
11
In re ) CASE NO. 6:10-bk-37900
12 )
BRIAN W DAVIES ) ADVERSARY PROCEEDING
13 )
)
14 ) ADV. NO.: 6:11-ap-01001
BRIAN W DAVIES, an Individual. )
15 )
Plaintiff, ) PLAINTIFF’S FIRST REQUEST FOR
16 ) PRODUCTION OF DOCUMENTS TO
-vs.- ) DEFENDANT DEUTSCHE BANK
17 ) NATIONAL TRUST COMPANY
DEUTSCHE BANK NATIONAL TRUST )
18 COMPANY, AS TRUSTEE OF THE ) SET ONE
RESIDENTIAL ASSET SECURITIZATION )
19 TRUST 2007-A5, MORTGAGE PASS- )
THROUGH CERTIFICATES, SERIES 2007- )
20 E, UNDER THE POOLING AND )
SERVICING AGREEMENT DATED March )
21 1, 2007, ITS ASSIGNS AND/OR )
SUCCESSORS IN INTEREST; and all persons )
22 claiming by, through, or under such person, all )
persons unknown, claiming any legal or )
23 equitable right, title, estate, lien, or interest in )
the property described in the complaint adverse )
24 to Plaintiff's title thereto; and DOES 1-150, )
Inclusive; )
25 )
Defendants. )
26 PLEASE TAKE NOTICE that pursuant to Rules 7026 and Rule 7034 of the Federal Rules
27 of Bankruptcy Procedure, Plaintiff Brian W Davies (the “Plaintiff”), by its undersigned counsel,
28 hereby requests that Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY, AS

1
PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT DEUTSCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE OF THE INDYMAC RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A5. SET ONE
1 TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A5,
2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-E, UNDER THE POOLING
3 AND SERVICING AGREEMENT DATED March 1, 2007, ITS ASSIGNS AND/OR

SUCCESSORS IN INTEREST (the “Defendant”) produce or otherwise reproduce the following
4
documents or things now in said Defendant’s possession, custody or control, on or before the forty-
5
fifth day from the date hereof, at the law offices of Global Capital Law, PC at 8700 Warner Avenue
6 Fountain Valley, California 92708, or at such other location as the parties may hereafter agree.
7
8 INSTRUCTIONS AND DEFINITIONS
9 1. These document requests require responses that are complete and accurate as of the
10 date when such responses are made.
11
2. The Defendants have a duty to amend a response if they obtain information
12
indicating that any of their responses was incorrect or incomplete when made or that any of their
13
responses, though correct and complete when made, is no longer correct and complete.
14
15 3. If the Defendants object to or otherwise decline to respond to any portion of a
16 document request, the Defendants must provide all information or documents called for by that
17 portion of the request to which the Defendants do not object or which they do not decline to
18 respond. For those portions of any production request to which the Defendants object or which
19
they decline to answer, describe in detail the reasons for such objections or declination.
20
4. This request for production encompasses all Documents and Communications in the
21
Defendants’ possession, custody or control, or the possession, custody or control of the
22
23 Defendants’ agents, representatives, consultants, officers, or any other Person employed or
24 controlled by the Defendants or otherwise acting on their behalf, whether or not such Documents
25 and Communications were prepared by or for the Defendants.

26
5. If any Document or Communication requested is not produced because of a claim of
27
privilege, the Defendants must identify the Document or Communication with sufficient
28
2
1 particularity to enable the Defendant to bring the matter before the Court and state the nature of the
2 privilege claimed and the complete factual basis for such claim.
3
6. If any Document or Communication was, but no longer is, in the Defendants’
4
possession, custody or control, the Defendants must state what disposition was made of the
5
Document or Communication, its last known location and custodian and the address and telephone
6
7 number of the custodian.
8 7. The Defendants are required to produce the Documents and Communications
9 requested herein in the same form and in the same order in which they existed prior to production.
10 The Documents and Communications are to be produced in the files, folders, bindings or other
11
containers in which the Documents are found; provided that any electronic data shall be produced
12
to the Defendant in a form readily accessible to and reviewable by the Plaintiff.
13
8. The disjunctive includes the conjunctive and vice versa as necessary to bring
14
15 Documents and Communications that might otherwise be considered beyond the scope of any
16 request herein within its scope.
17 9. The singular form of any word shall be interpreted as plural, and the plural form of
18
any word shall be interpreted as singular whenever appropriate in order to bring within the scope of
19
any request herein any Documents or Communications that might otherwise be considered beyond
20
its scope.
21
10. The requests herein shall be construed as continuing. The Defendants shall
22
23 promptly supplement their responses to the requests whenever any other responsive Document or
24 Communication not previously produced becomes known to the Defendants.

25 11. For purposes of the requests herein, production of a copy, rather than the original, of
26
the Document or Communication is acceptable, provided that the copy is a complete, accurate,
27
legible and unaltered reproduction of the original and that the original is made available for
28
3
1 inspection and photocopying at a time and place mutually agreed upon by the attorneys for the
2 parties.
3
12. The term “Bankruptcy Code” refers to title 11 of the United States Code.
4
13. The term “Communication(s)” means information that has been transmitted or
5
received (in the form of facts, ideas, opinions, inquiries or otherwise), by any means, including, but
6
7 not limited to, orally, in writing, electronically, by document, by copy thereof or otherwise.
8 14. The term “Complaint” means the complaint dated January 2, 2011, by which the
9 within adversary proceeding was commenced.

10 15. The term “Concerning” means relating to, referring to, describing, evidencing or
11
constituting, in each case to any (including a de minimis) degree.
12
16. The term “Defendants” refer to Deutsche Bank National Trust Company et al., the
13
Defendants herein and the debtors in the above-captioned bankruptcy cases.
14
15 17. The term “Defendant” refers to Deutsche Bank National Trust Company.
16 18. The term “Document(s)” means, but is not limited to, every writing, data,
17 information or record of every type and description, including, but not limited to: originals,
18
masters and every copy of writings, computer records, electronically stored data files, electronic
19
mail, handwritings, printed, typed or other graphic or photographic matter or data, files (of any
20
type), microfilm, video tape, recordings (tape, disc or other), correspondence and communications,
21
contracts, agreements, purchase orders, invoices, payment vouchers, credit memos, credit policies,
22
23 payment receipts, bills of lading, delivery receipts, service tickets, field service reports,
24 assignments, licenses, purchase orders, invoices, statements, memoranda, notes (in pencil, ink,
25 typewritten, electronically stored or other), letters, notebooks, reports, photographs, drawings,
26
tracings, sketches, charts, catalogs, brochures, manuals, guidelines, advertisements, records of
27
communications oral, written, electronic and otherwise, instructions, telegrams, telex, studies,
28
4
1 surveys, minutes, reports, calendars, inter-office communications, price lists, bulletins, circulars,
2 statements, summaries, maps, charts, graphs, invoices, canceled or voided checks, bills, statistical
3
data, any other data or information-containing material, information or statistics contained within
4
any data storage module, tape, disc or other memory device, or other information retrievable from
5
storage systems and any other item similar to the foregoing, in each case of any type or medium.
6
7 The term Document shall also include data compilations from which information can be obtained
8 and translated, if necessary, through detection devices in a reasonably usable form as well as any
9 English translation of a document in another language. A Document bearing any notation not a
10 part of the original text is to be considered a separate Document. A draft or non-identical copy is a
11
separate Document within the meaning of this term.
12
19. As used herein, the words/phrases “circumstances,” “detail(s)” and “all
13
information,” whether used alone or in connection with any other words, shall include, but are not
14
15 limited to, identifying all facts, Persons, places, dates, events, Documents, physical items of any
16 kind, time periods, geographical locations, data, Communications of any kind, or any other
17 information Concerning, in any way related to, pertaining to, connected with or otherwise
18
responsive to the requests such that all information shall be brought within the scope of the request
19
which may otherwise be deemed not to be covered by the request.
20
20. As used herein, the terms “Plaintiff” and “Defendant,” as well as a party’s full or
21
abbreviated name or a pronoun referring to a party, shall mean the party or parties and, where
22
23 applicable, its officers, directors, employees, stockholders, trustees, partners, predecessors,
24 successors, divisions, corporate parent, subsidiaries, affiliates, member organizations and agents.
25 21. The term “Person” shall include without limitations, any natural person, corporation,
26
proprietorship, partnership, trust, association, joint venture, firm or other business enterprise or
27
legal entity, and includes both the singular and plural.
28
5
1 22. The term “Petition Date” shall mean August 31, 2010, the date of the Plaintiffs’
2 bankruptcy filing.
3
23. The term “Produce” means to deliver all responsive Documents and
4
Communications to the Defendant’s counsel at the address set forth above.
5
24. The term “Transfer(s)” shall mean each and every transfer sought to be avoided and
6
7 recovered by the Plaintiffs through the Complaint.
8 DOCUMENTS REQUESTED
9 i. Any and all Documents and Communications which the Defendants identified or
10 relied upon in answering Plaintiff’s First Set of Interrogatories and to Defendant’s answer to
11
Plaintiffs First Set of Requests for Admission Directed to the Defendant.
12
ii. Any and all Documents and Communications upon which the Defendants have
13
relied or will rely, or that the Defendants expect to introduce into evidence, at any hearing or trial
14
15 in this matter.
16 iii. Any and all Documents and Communications prepared by sent to or concerning any
17 expert witness retained by the Defendants Concerning this matter, or who will testify at any hearing
18 or trial in this matter, as well as an updated curriculum vitae of any such expert witness.
19
iv. Any and all Documents and Communications Concerning or providing evidentiary
20
support for the factual allegations, legal conclusions and causes of action set forth in the
21
Complaint.
22
23 v. All Documents and Communications Concerning the Transfers.
24 vi. Any and all “vendor agreements” referred to in paragraph 74 of the Complaint, any
25 similar agreements between any of the Defendants and the Defendant and all Documents and
26
Communications Concerning any such vendor or other agreements.
27
28
6
1 vii. A copy of the “MANUAL” referred to in paragraph 74 of the Complaint and all
2 Documents and Communications Concerning such MANUAL.
3
viii. Any and all Documents executed by and between any of the Defendants and the
4
Defendant including, but not limited to, contracts and/or agreements and/or evidence of contracts
5
and/or agreements between the parties and all Documents and Communications Concerning any of
6
7 the foregoing.
8 ix. Any and all Documents and Communications reflecting drafts, alterations,
9 modifications, extensions, amendments and/or terminations of any alleged contracts and/or

10 agreements by and between any of the Defendants and the Defendant (including, but not limited to,
11
any vendor or other agreement and any MANUAL that the Defendants allege is applicable to the
12
Defendant) and all Documents and Communications Concerning any of the foregoing.
13
x. Any and all Documents and Communications Concerning the Defendants’
14
15 allegations that each Transfer represented a transfer to the Defendant of Plaintiff’s property in
16 which the Defendants had an interest.
17 xi. Any and all Documents and Communications Concerning the Defendants’
18
allegations that each Transfer was made by the Defendants on account of an antecedent debt owed
19
by the assignees to the Defendant. Please produce all documents and records and transaction books
20
maintained by the document custodian for this mortgage loan. Please produce all documents and
21
records in the mortgage file.
22
23
xii. Please produce all documents and records in the servicing file.
24
25 xiii. Any and all Documents and Communications Concerning any cash or other
26 transfers made by the Defendants to the Defendant from November 16, 2006 through the present
27
date including, but not limited to, copies of the front and back of each check underlying such
28
7
1 transfers, any evidence of payments made by wire or other electronic transfer, bank statements,
2 bank records, receipts, credit memos and other, similar items.
3
xiv. Any and all Documents and Communications Concerning the Defendants’ receipt
4
and retention of, and payment for, goods provided by the Defendant to any of the Defendants from
5
November 16, 2006 through the present date and the terms and conditions upon which any such
6
7 goods were provided by the Defendant to the Defendants during such period.
8 xv. Any and all Documents and Communications Concerning the Defendants’ transfer
9 or return of goods, money or services to the Defendant from November 16, 2006 through the
10 present date.
11
xvi. Any and all Documents and Communications reflecting the Defendant’s invoices
12
and/or memoranda by date, number, and amount and the date and amount of any cash payments
13
and/or return of goods, money or services by the Defendants to the Defendant on account thereof
14
15 (commonly known as a customer ledger, account history and/or accounts payable ledger) with
16 regard to any transactions between the Defendants and the Defendant from November 16, 2006
17 through the present date and all Documents and Communications Concerning the foregoing.
18
xvii. Any and all of the Defendants’ Documents and Communications reflecting invoices
19
and/or memoranda by date, number, and amount and the date and amount of any cash payments
20
and/or return of goods by the Defendants on account thereof (commonly known as a customer
21
ledger, account history and/or accounts payable ledger) for each vendor or supplier of goods with
22
23 which the Defendants transacted business from November 16, 2006 through the Petition Date (any
24 such entity, a “Comparable Vendor”) and all Documents and Communications Concerning the
25 foregoing.
26
27
28
8
1 xviii. Any and all Documents and Communications concerning the course of business
2 between the Defendants and the Defendant for the two year and three month period before the
3
Petition Date.
4
xix. Any and all Documents and Communications Concerning the course of business
5
between the Defendants and all Comparable Vendors for the two year and three month period
6
7 before the Petition Date.
8 xx. All internal and external manuals, guidelines, memoranda or other Documents or
9 Communications governing or otherwise Concerning the Defendants’ practices with respect to

10 accounts receivable and payable, procurement, trade credit or other, similar functions.
11
xxi. Any and all Documents and Communications Concerning the methodology the
12
Defendants used to identify the Transfers set forth in “Request for Judicial Notice #1” to the
13
Complaint.
14
15 xxii. Any and all Documents and Communications Concerning the methodology the
16 Defendants used to identify the Transfers set forth in “Request for Judicial Notice #2” to the
17 Complaint.
18
xxiii. List each entity who now has or has ever had any interest in the underlying
19
NOTE, MORTGAGE or DEED OF TRUST, including but not limited to, any broker, table-
20
21 funder, co-defendant lender, originator, lender, warehouse lender, trustee, investor, trustee
22 under a pooling and servicing agreement, servicer, or any other similar party. Identify that
23
party's name, address and telephone number, describe that party's interest in the transaction,
24
state the date it obtained that interest, the date it relinquished that interest, and the identity of
25
26 the entity to which it relinquished that interest, and state the nature and amount of all
27
28
9
1 consideration it received or disbursed in connection with obtaining or relinquishing that
2
interest.
3
4 xxiv. Please provide any documentation that would indicate proof that the Defendant
5
owns the subject Mortgage and Note or any other documentation that would represent the
6
Defendant has standing in this case.
7
8
xxv. Please provide an itemized statement of all of the filing fees, service fees,
9
postage, advertising and publication expenses and reasonable attorney fees actually incurred
10
11 with respect to any pre-petition foreclosure proceeding. Such attorney time records should be
12 itemized by the date and nature of the service and the time devoted to each service. You
13
should also produce the front and back of each and every canceled check in payment of each
14
invoice for the charges described herein along with a copy of each respective bill, statement
15
16 and invoice.
17
xxvi. Please identify the name, title and current address of each and every person who
18
19 has had access to any of the electronic records related to this mortgage loan and specifically
20 state the name, title and address of the primary individual responsible for servicing this loan
21
after the alleged default.
22
23 xxvii. List each entity who now has or has ever had any interest in the underlying
24
Mortgage NOTE, including but not limited to, any broker, table-funder, co-defendant lender,
25
originator, lender, warehouse lender, trustee, investor, trustee under a pooling and servicing
26
27 agreement, master servicer, primary servicer, sub-servicer, default servicer, specialty servicer,
28
10
1 or any other similar party. Identify that party's name, address and telephone number, describe
2
that party's interest in the transaction, state the date it obtained that interest, the date it
3
relinquished that interest, and the identity of the entity to which it relinquished that interest,
4
5 and state the nature and amount of all consideration it received or disbursed in connection with
6 obtaining or relinquishing that interest.

7
8 xxviii. All MERS documents related to this loan, including the MIN number and MIN
9 History Report and Audit Trail.
10
xxix. Any and all Documents and Communications Concerning the Unused Credits set
11
12 forth in Exhibit “B” to the Complaint, including, but not limited to, purchase orders, invoices
13 and/or other underlying documentation to which each Unused Credit set forth in Exhibit “B” to the
14 Complaint relates.
15
16 xxx. Any and all Documents and Communications Concerning the details of and the
17 circumstances surrounding the Credits (as defined in paragraph 8 of the Complaint) and the Unused
18 Credits set forth in Exhibit “B” to the Complaint.

19 xxxi. Any and all Documents and Communications Concerning the methodology the
20
Defendants used to identify the Unused Credits set forth in Exhibit “B” to the Complaint.
21
xxxii. Any and all Documents and Communications concerning any amounts currently
22
owed by the Defendants to the Defendant and vice versa.
23
24 xxxiii. Any and all Documents and Communications, including, but not limited to, any
25 expert reports, recommendations or summaries, upon which the Defendants have relied or will rely
26 at any time to establish that the Transfers enabled the Defendant to receive more than it would have
27
received if (i) this case were a case under chapter 7 of the Bankruptcy Code; (ii) the Transfers had
28
11
1 not been made; and (iii) the Defendant had received payment on the alleged debt relating to the
2 Transfers to the extent provided by the Bankruptcy Code.
3
xxxiv. Any and all Documents and Communications, including, but not limited to, any
4
expert reports, recommendations or summaries, upon which the Defendants have relied or will rely
5
at any time to establish that the Defendants were insolvent at the time that each of the Transfers
6
7 was made. Please attach a complete copy of the Investor Loss Mitigation and Loan Modification
8 Guidelines related to this mortgage loan.
9
xxxv. Any document which includes each entity who now has or has ever had any interest
10
11 in the underlying Mortgage NOTE, including but not limited to, any broker, table-funder, co-
12 defendant lender, originator, lender, warehouse lender, trustee, investor, trustee under a pooling and
13 servicing agreement, master servicer, primary servicer, sub-servicer, default servicer, specialty
14
servicer, or any other similar party. Identify that party's name, address and telephone number,
15
describe that party's interest in the transaction, state the date it obtained that interest, the date it
16
relinquished that interest, and the identity of the entity to which it relinquished that interest, and
17
state the nature and amount of all consideration it received or disbursed in connection with
18
19 obtaining or relinquishing that interest.
20
xxxvi. Any and all Documents and Communications, including, but not limited to, any
21
22
23 at any time to rebut or counter the Defendant’s assertion that it provided subsequent new value,
24 pursuant to § 547(c)(4) in an amount exceeding the value of the Transfers.
25 xxxvii. Any and all Documents and Communications, including, but not limited to, any
26
27
at any time to rebut or counter the Defendant’s assertion that the Transfers were made in payment
28
12
1 of a debt incurred in the ordinary course of business or financial affairs of the Defendants and the
2 Defendant, were made in the ordinary course of business or financial affairs of the Defendants and
3
the Defendant, and/or were made according to ordinary business terms pursuant to §547(c)(2) of
4
the Bankruptcy Code.
5
xxxviii. Any and all Documents and Communications upon which the Defendants have
6
7 relied or will rely at any time to rebut or counter the Defendant’s assertion that the Transfers were
8 intended to be and were in fact contemporaneous exchanges for new value given to the Defendants
9 pursuant to §547(c)(1) of the Bankruptcy Code.

10 xxxix. Any and all Documents and Communications upon which the Defendants have
11
relied or will rely at any time to establish liability against the Defendant in favor of the Defendants
12
or to rebut or counter any affirmative defense asserted by the Defendant.
13
xl. Please produce all documents identified in your answer to Interrogatory No. 5.
14
15 xli. Please produce all documents identified in your answer to Interrogatory No. 6.
16 xlii. Please produce all documents identified in your answer to Interrogatory No. 11.
17 xliii. Please produce all documents identified in your answer to Interrogatory No. 15.
18
xliv. Please produce all documents identified in your answer to Interrogatory No. 16.
19
xlv. Please produce all documents identified in your answer to Interrogatory No. 17.
20
xlvi. Please produce all documents identified in your answer to Interrogatory No. 21.
21
xlvii. Please produce all documents identified in your answer to Interrogatory No. 23.
22
23 xlviii. Please produce all documents identified in your answer to Interrogatory No. 24.
24 xlix. Please produce all documents identified in your answer to Interrogatory No. 25.
25 l. Please produce all documents you intend to offer as exhibits at the time of trial.
26
27
28
13
1 li. Please produce copies of all civil actions, adversary proceedings, or
2
administrative proceedings that have been filed against you and/or the Servicer of this loan at
3
any time in the past 36 months for any alleged misconduct related to mortgage servicing.
4
6
DATED: March 30, 2011 Global Capital Law, P.C.
7
9 _______________________________
Attorneys for Plaintiff
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14

Brian Davies Pro DBNTC 03-30-11 Final

Enviado por

Dados do documento

Descrição original:

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Brian Davies Pro DBNTC 03-30-11 Final

Enviado por

Direitos autorais:

Formatos disponíveis

1 GLOBAL CAPITAL LAW, P.C.

GARY HARRE (CBN 86938)

6 Attorney for Plaintiff, Brian W. Davies

8 UNITED STATES BANKRUPTCY COURT

28 hereby requests that Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY, AS

3 AND SERVICING AGREEMENT DATED March 1, 2007, ITS ASSIGNS AND/OR

8 INSTRUCTIONS AND DEFINITIONS

15 3. If the Defendants object to or otherwise decline to respond to any portion of a

23 Defendants’ agents, representatives, consultants, officers, or any other Person employed or

25 and Communications were prepared by or for the Defendants.

7 number of the custodian.

8 7. The Defendants are required to produce the Documents and Communications

16 request herein within its scope.

24 Communication not previously produced becomes known to the Defendants.

9 within adversary proceeding was commenced.

23 applicable, its officers, directors, employees, stockholders, trustees, partners, predecessors,

7 recovered by the Plaintiffs through the Complaint.

23 v. All Documents and Communications Concerning the Transfers.

9 modifications, extensions, amendments and/or terminations of any alleged contracts and/or

16 which the Defendants had an interest.

7 before the Petition Date.

9 Communications governing or otherwise Concerning the Defendants’ practices with respect to

6 obtaining or relinquishing that interest.

9 History Report and Audit Trail.

18 Credits set forth in Exhibit “B” to the Complaint.

8 Guidelines related to this mortgage loan.

19 obtaining or relinquishing that interest.

24 pursuant to § 547(c)(4) in an amount exceeding the value of the Transfers.

9 pursuant to §547(c)(1) of the Bankruptcy Code.

Você também pode gostar