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Case: 15-35963, 08/24/2016, ID: 10099657, DktEntry: 46, Page 1 of 16

No. 15-35963
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LNV CORPORATION,
Plaintiff-Appellee,
v.
DENISE SUBRAMANIAM,
Defendant-Appellant.
On Appeal from the United States District Court
for the District of Oregon, 14-CV-01836-MO
District Judge Michael Mosman
LNV CORPORATIONS MOTION
FOR LEAVE OF COURT TO FILE SUR-REPLY

Gabrielle D. Richards
MARTIN & RICHARDS, LLP
111 SW Fifth Ave., Suite 3150
Portland, OR 97204
503.444.3449
gabby@cascadialawyers.com

Erick J. Haynie
Jeffrey M. Peterson
PERKINS COIE LLP
1120 NW Couch St., 10th Floor
Portland, OR 97209
503.727.2000
EHaynie@perkinscoie.com
JeffreyPeterson@perkinscoie.com

Counsel for Plaintiff-Appellee


LNV Corporation

Counsel for Plaintiff-Appellee


LNV Corporation

August 24, 2016

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CORPORATE DISCLOSURE STATEMENT


Plaintiff-Appellee LNV Corporation is a Nevada corporation and a wholly
owned subsidiary of Beal Bank USA, a Nevada thrift. Beal Bank USA is wholly
owned by Beal Financial Corporation, a Texas corporation. Beal Bank USA and
Beal Financial Corporation are not publicly traded corporations.
MOTION
Plaintiff-Appellee LNV Corporation (LNV) respectfully moves this
Court for leave to file a Sur-Reply in response to the Reply in Opposition to
Appellees Opposition to Appellants Motion for Summary Disposition filed
by Defendant-Appellant Denise Subramaniam (Appellant). The proposed
Sur-Reply is attached hereto as Exhibit A. Appellants position on this motion
is unknown; attempts to contact her prior to filing were unsuccessful.
LEGAL BASIS
A reply memorandum, such as the one filed by Appellant, must not
present matters that do not relate to the response. Fed. R. App. P. 27(a)(4). A
sur-reply is appropriate when a party raises new issues or new evidence in a
reply brief.

See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1980).

Absent an opportunity to file a Sur-Reply, LNV will be denied an opportunity


to respond to new issues and to correct patently false representations introduced
1

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by Appellant in her reply memorandum that do not relate to the response filed
by LNV. LNV seeks to file a Sur-Reply on the following grounds:
1.

Appellant introduced new allegations in her reply memorandum

that, because they are false, mislead the Court and do not relate to LNVs
response. Specifically, Appellant accuses LNV of (a) violating a court order,
(b) redacting evidence and (c) intentionally misquoting rules and case law.
2.

Appellant made representations in her reply memorandum that,

because they are false, mislead the Court and do not relate to LNVs response.
Specifically, Appellant misrepresents (a) LNVs position on critical issues
(b) the record on appeal and (c) the holdings of cases on which she relies.
CONCLUSION
The normal liberties afforded pro se litigants do not allow Appellant to use
her reply memorandum to make false allegations, distort the record or attempt to
mislead the Court. LNV respectfully requests that its motion for leave to file a surreply be granted so that it is afforded an opportunity to identify and respond to
Appellants new allegations and misstatements.
//
//
//

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RESPECTFULLY SUBMITTED this 24th day of August, 2016.


/s/ Gabrielle D. Richards

/s/ Erick J. Haynie

Gabrielle D. Richards
MARTIN & RICHARDS, LLP
111 SW Fifth Ave., Suite 3150
Portland, OR 97204
503.444.3449
gabby@cascadialawyers.com

Erick J. Haynie
Jeffrey M. Peterson
PERKINS COIE LLP
1120 NW Couch St., 10th Floor
Portland, OR 97209
503.727.2000
EHaynie@perkinscoie.com
JeffreyPeterson@perkinscoie.com

Attorneys for Plaintiff-Appellee


LNV Corporation

Attorneys for Plaintiff-Appellee


LNV Corporation

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EXHIBIT A

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No. 15-35963
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LNV CORPORATION,
Plaintiff-Appellee,
v.
DENISE SUBRAMANIAM,
Defendant-Appellant.
On Appeal from the United States District Court
for the District of Oregon, 14-CV-01836-MO
District Judge Michael Mosman
LNV CORPORATIONS SUR-REPLY IN OPPOSITION
TO APPELLANTS MOTION FOR SUMMARY DISPOSITION

GABRIELLE D. RICHARDS
MARTIN & RICHARDS, LLP
111 SW Fifth Ave., Suite 3150
Portland, OR 97204
503.444.3449
gabby@cascadialawyers.com

ERICK J. HAYNIE
JEFFREY M. PETERSON
PERKINS COIE LLP
1120 NW Couch St., 10th Floor
Portland, OR 97209
503.727.2000
EHaynie@perkinscoie.com
JeffreyPeterson@perkinscoie.com

Counsel for Plaintiff-Appellee


LNV Corporation

Counsel for Plaintiff-Appellee


LNV Corporation

August 24, 2016

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CORPORATE DISCLOSURE STATEMENT


Plaintiff-Appellee LNV Corporation is a Nevada corporation and a wholly
owned subsidiary of Beal Bank USA, a Nevada thrift. Beal Bank USA is wholly
owned by Beal Financial Corporation, a Texas corporation. Beal Bank USA and
Beal Financial Corporation are not publicly traded corporations.
ARGUMENT
Plaintiff-Appellee LNV Corporation (LNV) submits this Sur-Reply to
respond to new allegations and correct the egregious misstatements of fact and
law contained in the reply memorandum filed by Defendant-Appellant Denise
Subramaniam (Appellant) in support of her motion for summary disposition.
LNV makes the following points, based upon Appellants reply memorandum:
A.

Appellant Misleads the Court by Misrepresenting LNVs


Position as to the Enforceability of the Note and Deed of Trust

Appellant misleads the Court by misrepresenting LNVs position as to,


among other things, (1) the existence of material issues of fact, (2) the date of
issuance of the second allonge and (3) the enforceability of the Deed of Trust as
it relates to LNVs date of incorporation. (CA9 Dkt. 43, page 8.) To be
perfectly clear, LNVs response memorandum did not address the
enforceability of the Note and Deed of Trust because the substantive issue was
not properly before the Court as having been preserved or raised on appeal. To
1

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raise the issue only after briefing on the underlying appeal had concluded is
improper and not what the summary disposition procedure is meant to address.1
More specifically, the motion itself is fatally flawed as it is untimely,
addresses issues not preserved for appeal and relies upon case law that is
inapplicable for the position it is offered. Further, Appellant takes far too many
liberties in interpreting LNVs response and offers only conclusory statements
based on incorrect or nonexistent legal theories, just as she has done in her
other conspiracy-laden pleadings in this and prior cases involving LNV (e.g.
LNV management is connected to the Russian mob,2 LNV management placed
her under surveillance and stalked her,3 more than 60 defendants including
former U.S. Vice President Dan Quayle bore responsibility for her inability to

The incorporation issue was mentioned only in passing in Appellants Opening


Brief. The extent of argument provided by Appellant on this issue is as follows:
Several other Beal/LNV victims have March 10, 2008 Assignments endorsed by
either Michael Mead or Betty Wright and notarized by Diane Meistad purporting
to convey beneficial interest to LNV when LNV Corporation did not exist on
March 10, 2008. (CA9 Dkt. 29-1, page 22.) Appellant never even mentions the
three Ninth Circuit cases (Yvanova, Gieseke and Newman) on which she bases her
motion, even though all three were decided before her Opening Brief was due.
2

Subramanian v. Beal, No. 3:14-cv-01482-SI, Dkt. 2 (D. Or.). The District Court
dismissed the case in October 2014. (Dkt. 5.)
3

Id., Dkt. 2.
2

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meet her mortgage obligations, entitling her to damages in the trillions of


dollars4). Her conclusions regarding LNVs positions are incorrect.
B.

Appellant Misleads the Court by Accusing LNV of Misquoting


the Federal Rules of Appellate Procedure and Case Law

Appellant misleads the Court by accusing LNV of intentionally misquoting


the Federal Rules of Appellate Procedure and case law, yet she does not support
her allegation by referencing any specific misdeed.

(CA9 Dkt. 43, page 3.)

Appellant does, in fact, base her motion on Circuit Rule 3-6(a). (CA9 Dkt. 36-1,
page 1.) The latter part of this rule does, in fact, enable the Court to issue a
dispositive order if an intervening court decision or recent legislation requires
reversal or vacation of the judgment or order appealed from. (The Federal Rules
of Appellate Procedure contain no comparable procedure.) LNV is at a loss as to
why Appellant is attacking it for citing the very rule on which her motion is based
unless Appellant is seeking, once again, to alter her theory of the case.
After falsely accusing LNV of misquoting rules and cases, Appellant further
distorts the holdings of the cases on which she relies. (CA9 Dkt. 43, page 4.) For
example, Appellant continues to misunderstand the procedural posture and holding
of the cases she cites, including Newman v. Bank of N.Y. Mellon Corp., No. 1317297 (9th Cir. filed May 13, 2016). Like Yvanova, the plaintiff in Newman
4

Subramanian v. Beal, et al., No. 3:12-cv-01681-MO (D. Or.). The District Court
dismissed the case in September 2013. (Dkt. 138.)
3

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brought a lawsuit to challenge an entitys legal authority to foreclose. Id. at 2.


Like Yvanova, the lower court in Newman concluded the plaintiff did not have
standing. Id. The procedural posture is vastly different in the case at bar, in which
Appellant was able from the outset to raise any legal defense she desired
including the unenforceability of assignments. Appellants standing to raise
such a defense has never been questioned, challenged or rejected by the District
Court. Moreover, this is not a wrongful foreclosure case despite Appellants
argument to the contrary and her attempts to mislead this Court with cherry-picked
quotations. As set forth below, the issue was never properly raised or preserved.
C.

Appellant Misleads the Court by Misstating and Misconstruing


the Record on Appeal and Seeks to Supplement the Opening Brief

Appellant argues that she sufficiently raised the issue of the 2008 assignment
being unenforceable based on LNVs incorporation date to preserve it on appeal.
(CA9 Dkt. 43, page 6.) To be clear, the following is the extent of this issue being
argued in her two responses in opposition to LNVs summary judgment motion:
with instruments endorsed by GMAC-RFC employees
Diane M. Meistad and Betty Wright executed on March
10, 2008 before LNV was incorporated in the State of
Nevada and before LNV could have acquired a Nevada
business license allowing it to legally transact business.
(District Court Dkt. 94.) No further references to LNVs incorporation date are
made in this 61-page response (including exhibits) or in Appellants three-page
4

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initial response in opposition to LNVs motion for summary judgment. (District


Court Dkt. 68.) Moreover, Appellant did not argue in either response that the
assignment was void, nor did she include or even reference LNVs Articles of
Incorporation.

Appellants contention that LNV was on notice of her

incorporation argument is thus unfounded and, more importantly, misplaced the


critical question is whether the issue was raised sufficiently for the trial court to
rule on it below.

Appellants conclusion that the incorporation issue was

thoroughly examined by both [Appellant] and LNV Corporation in the district


court case is simply false. (CA9 Dkt. 43, page 7.) Moreover, the incorporation
argument merited only a passing reference in Appellants Opening Brief. (CA9
Dkt. 29-1, page 22.) Appellant is attempting to improperly use the summary
disposition procedure to supplement her briefing in the underlying appeal.5
D. Even If the Incorporation Issue Had Been Preserved, Appellants
Argument Regarding LNVs Corporate Status Is a Red Herring
Regardless of whether the incorporation issue was preserved below, this
argument has no legal or factual merit and is based on conclusory statements. To
begin with, the Deed of Trust follows the Note it secures. James v. ReconTrust

Appellant argues that her motion for summary disposition is not really a motion
because she titled it Motion for Summary Disposition in Reply to Appellees
Answering Brief. (CA9 Dkt. 43, page 2.) LNV is not aware of a rule that permits
a motion to be imbedded in a reply brief. Moreover, Appellant filed the pleading
as a motion, not as a reply.
5

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Co., 845 F. Supp. 2d 1145, 1156 (D. Or. 2012) (when the trust deed secures a
promissory note, the beneficiary of the trust deed is the noteholder). Even if
LNVs date of incorporation had any legal significance which it does not, as
explained below the Deed of Trust follows the Note. Further, an instrument such
as a promissory note may be enforced by (1) the holder of the instrument, (2) a
non-holder in possession of the instrument, who has the rights of a holder, or (3) a
person not in possession of the instrument who is entitled to enforce under other
provisions. ORS 73.0301. LNV is questionably the current holder of the Note,
both physically and through a series of allonges.

Moreover, Oregon law

contemplates undated instruments, such as the undated allonges that assigned


beneficial interest in the Note to LNV. See ORS 73.0113.
LNVs date of incorporation has no legal significance. Appellant concludes
that because LNVs Articles of Incorporation were filed after the March 10, 2008
assignment of the Deed of Trust, the assignment is void. (CA9 Dkt. 43, page 5.)
Appellant, however, cites no legal authority for this conclusion. To the contrary,
courts applying Nevada law have held that pre-incorporation transactions can be
valid. For instance, the Ninth Circuit has recognized that, [u]nder Nevada law, if
a pre-incorporation contract made by promotors is within the corporate powers, the
corporation may, when organized, expressly or impliedly ratify the contract and
thus make it a valid obligation of the corporation. This is especially true if the
6

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agreement appears to be a reasonable means of carrying out any of the corporate


powers or authorized purposes. Chartrand v. Barneys Club, Inc., 380 F.2d 97,
100 (9th Cir. 1967) (citing Alexander v. Winters, 49 P. 116, 119 (Nev. 1897)). In
addition, the Nevada Supreme Court has recognized that corporations do not need
to formally adopt unauthorized transactions; instead, they can ratify transactions by
passive acquiescence, or by failure to manifest dissent.

See Henningsen v.

Tonopah & G.R. Co., 111 P. 36, 41 (Nev. 1910) (discussing requirements for
ratification of unauthorized transactions). Appellants argument has no legal merit.
E.

Appellant Misleads the Court by Accusing LNV of Violating


This Courts Order by Filing a Response

Appellant contends that LNVs response in opposition to her motion for


summary disposition should be stricken because it violates this Courts order
suspending briefing.

(CA9 Dkt. 43, page 1.)

misunderstands this order.

Appellant, however,

The Courts order stated: The opening and

answering briefs have been filed. Briefing is suspended pending further order of
this court. (CA9 Dkt. 41.) The briefing referenced in the order pertains to
briefing of the underlying appeal, not to briefing of pending motions.
Appellants contention that LNV attempts to usurp this Courts authority over
the briefing schedule by ignoring and feigning ignorance is thus untrue.

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F.

Appellant Misleads the Court by Accusing LNV of Redacting


Evidentiary Documents in the Excerpts of Record

Appellant contends that LNV redacted evidentiary documents from the


paper version of their Supplemental Excerpts of Record after she filed her
motion for summary disposition that relied on, referenced, and challenged
what became the missing documentary evidence. (CA9 Dkt. 43, page 2.) This
is highly inflammatory and wholly untrue.

LNV filed two volumes of

supplementary excerpts of record electronically on August 11, 2016. (CA9


Dkt. 34-1 and 34-2.) Volume 1 contained pages 1 through 74; Volume 2
contained pages 75 through 156. LNV then printed and bound the excerpts and
altered the number of pages contained in each volume to comply fully with
Circuit Rule 30-1.6 and this Courts August 12, 2016 order. (CA9 Dkt. 35.)
Volume 1 of the printed excerpts contained pages 1 through 9; Volume 2
contained pages 10 through 156.
No pages were redacted, excluded, altered or even renumbered when the
paper copies of the excerpts were made. They were simply bound in a different
order. The serious deficiency noted by Appellant refers to the electronic and
printed volumes differing as to their starting and ending points. (See CA9 Dkt.
40.) The corrected paper versions were sent to and accepted by the Court.
Contrary to what Appellant alleges, neither the electronic nor the paper excerpts
8

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contain any documentary evidence that supports her motion. Her allegation
that LNV manipulated the record is yet another unfounded attempt to show
LNV in a bad light and mislead this Court.
CONCLUSION
For the reasons set forth above, LNV respectfully requests that the Court
deny Appellants Motion for Summary Disposition.
RESPECTFULLY SUBMITTED this 24th day of August, 2016.
/s/ Gabrielle D. Richards

/s/ Erick J. Haynie

GABRIELLE D. RICHARDS
MARTIN & RICHARDS, LLP
111 SW Fifth Ave., Suite 3150
Portland, OR 97204
503.444.3449
gabby@cascadialawyers.com

ERICK J. HAYNIE
JEFFREY M. PETERSON
PERKINS COIE LLP
1120 NW Couch St., 10th Floor
Portland, OR 97209
503.727.2000
EHaynie@perkinscoie.com
JeffreyPeterson@perkinscoie.com

Attorneys for Plaintiff-Appellee


LNV Corporation

Attorneys for Plaintiff-Appellee


LNV Corporation

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CERTIFICATE OF SERVICE
I hereby certify that on August 24, 2016, I electronically filed the foregoing
with the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit by
using the CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Gabrielle D. Richards


Gabrielle D. Richards

10