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No.

_____________

IN THE
Supreme Court of the United States
Samuel G. and JoAnn Breitling;
Denise Subramaniam;
Robynne A. Fauley;
Catherine Gebhardt;
Christopher & Marcia Swift
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
(collectively the Beal victims) Pro se Petitioners
v.
LNV Corporation aka Daniel Andrew Beal Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO


Texas Supreme Court;
Texas Fifth Court of Appeals;
U.S. Ninth Circuit Court of Appeals;
U.S. Sixth Circuit Court of Appeals;
U.S. Fifth Circuit Court of Appeals;
U.S. District Court Northern District of Illinois Eastern Division
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
16th Judicial Circuit Court Kane County Illinois
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

PETITION FOR WRIT OF CERTIORARI

All Pro se Petitioners


c/o JoAnn Breitling
5250 Hwy 78, #750-112,
Sachse, TX 75048

1
QUESTIONS PRESENTED

1. Is it unconstitutional for state and federal district courts to hand out summary

judgments and summary dismissals like candy against homeowners in foreclosure

related cases when material questions of fact specific to standing exist? (Phrased

differently: Is it discriminatory and a violation of the Fifth and Fourteenth

Amendment due process clauses for these courts to routinely grant summary

judgments and dismissals to foreclosing parties without ever addressing evidence

submitted by homeowners of fraud that a shows lack of standing to foreclose when

doing so denies homeowners discovery and any opportunity to present a case on the

merits to a jury guaranteed by the Seventh Amendment?)

2. Is it constitutional for homeowners in foreclosure related cases to be evicted from

their homes, often by the lowest level state courts, while litigation is pending in a

district court or appeals court to determine title to their property?

3. Is it constitutional to deprive homeowners representation by counsel and meaningful

access to justice in foreclosure related cases where life, liberty and property are

definitely at stake; and where their opponents have excessive wealth and political

clout and use it to engage in practices intended to increase litigation costs for their

opponents; to intimidate opposing counsel or to entice opposing counsel to

undermine their clients interests; to unduly influence judges; and when foreclosing

parties routinely engage in criminal activities aimed at rigging judicial outcome?


2
LIST OF PARTIES
Attorneys for LNV Corporation (aka Daniel Andrew Andy Beal):

Luke Madole Marc Daniel Cabrera


Buckley Madole P.C. Robert T. Mowrey
14841 Dallas Parkway, Suite 425 Thomas F. Loose
Dallas, TX 75254 Locke Lord LLP
2200 Ross Ave, # 2200
Jeffrey Scott Levinger Dallas, TX 75201
Levinger PC
1445 Ross Ave Ste 2500 Jason Sanders
Dallas, TX 75202-2701 Sanders Collins PLLC
1919 McKinney Ave.
Samir Pyarali 'Sammy' Hooda Dallas, TX 75201
McCarthy Holthus, LLP
1255 West 15th Street, Suite 1060 Ronald G. Steen
Plano, TX 75075 Thompson Burton PLLC
One Franklin Park
Erick J. Haynie 6100 Tower Circle, Suite 200
Gabriele Richards Franklin, TN 37067
Perkins Coie, LLP
1120 NW Couch Street
10th Floor
Portland, OR 97209-4128

Pro Se Petitioners:

JoAnn & Samuel G. Breitling Catherine Gebhardt


5250 Hwy 78, #750-112,
xxxxxxxxxxxxxxxxxxxxxx c/o Ms. Amanda Dennis
xxxxxxxxxxxxxxxxxxxxxx
Sachse, TX 75048
xxxxxxxxxxxxxxxxxxxxxx 402 Atchley Apartments
xxxxxxxxxxxxxxxxxxxxxx
xxxxxx
Denise Subramaniam Maryville Tennessee, 37801
xxxxxx
c/o D. Guite 25219 Village 25
xxxxxxxxxxxxxxxxxxxxxxxx Christopher & Marcia Swift
xxxxxxxxxxxxxxxxxxxxxxxxxxx
Camarillo, CA 93012
xxxxxxxxxxxxxxxxxxxxxxxx 601 Sennett St.
xxxxxxxxxxxxxxxxxxxxxxxxxxx
xx
Robynne A. Fauley Batavia, IL 60510
xxxxxxxxxxxxxxxxxxxxx
12125 SE Laughing Water Rd.
xxxxxxxxxxxxxxxxxxxxxxxx
Sandy, OR 97055
xxxxxxxxxxxxxxxxxxxxxxxx
xx

3
Representative short list of other Beal victims in every U.S. Circuit:

Stergios Papadopulos MA (1st U.S. Circuit)


Robert Allison NY (2nd U.S. Circuit)
Dana Brinton PA (3rd U.S. Circuit)
Toya & Harry Smith NC (4th U.S. Circuit)
Cammy Depew LA (5th U.S. Circuit)
Stewart & Nora Hamm TX (5th U.S. Circuit)
Catherine Gebhardt TN (6th U.S. Circuit)
Rebekah Youngblood TN (6th U.S. Circuit)
Rhonda Hardwick IN (7th U.S. Circuit)
Randall Robb MO (8th U.S. Circuit)
Tuli Molina-Wohl AZ (9th U.S. Circuit)
David Gates CA (9th U.S. Circuit)
The Dragoos - CO (10th U.S. Circuit)
Mariano Ayala FL (11th U.S. Circuit)

4
INDEX TO APPENDICES
Appendix 1 ........................................................................................................ 7
Appendix 2 ........................................................................................................ 7
Appendix 3 ........................................................................................................ 7
Appendix 4 ........................................................................................................ 8, 11
Appendix 5 ........................................................................................................ 17
Appendix 6 ........................................................................................................ 29
Appendix 7 ........................................................................................................ 31
Appendix 8 ........................................................................................................ 43

5
TABLE OF AUTHORITIES CITED

Southgate Master Fund, LLC v. United States, 659 F. 3d 466 (5th Cir. 2011) ......................
Bemont Investments, L.L.C. v. United States, 679 F.3d 339 (5th Cir. 2012) ..........................

Article III, Section II of the United States Constitution .........................................................


Article VI, Section III of the United States Constitution ........................................................
First Amendment to the United States Constitution ...............................................................
Fifth Amendment to the United States Constitution ...............................................................
Fourteenth Amendment to the United States Constitution .....................................................
Seventh Amendment to the United States Constitution..........................................................
28 U. S. C. 1257(a)...............................................................................................................
42 U.S. Code 1981 ...............................................................................................................
42 U.S. Code 1982 ...............................................................................................................
42 U.S. Code 1983 ...............................................................................................................
42 U.S. Code 1985 ...............................................................................................................
42 U.S. Code 1988 ...............................................................................................................
18 U.S. Code 4 .....................................................................................................................
18 U.S. Code 241 .................................................................................................................
18 U.S. Code 242 .................................................................................................................
18 U.S. Code 1961 et seq. ....................................................................................................
18 U.S. Code 1964 ...............................................................................................................

6
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgments below.

OPINIONS BELOW

Petitioners JoAnn and Samuel Breitling:


1. Texas Supreme Court, Case No. 16-0669 (Review Denied, Jurisdiction Lacking)
2. Texas Fifth Court of Appeals, Case No: 05-15-00677-CV (Eviction LNV violated
736.11(a) stay and sold Petitioners property; then used Trustee Deed from VOID
sale pursuant to Tex.R.Civ.P. 736.11(d) to take a writ of possession by fraud upon
the court and by undue influence.)
3. Dallas County Court # 3, Case No: CC-15-00911-C (LNVs Eviction Action)
4. Texas 134th District Court, Case No: DC-14-04053 (LNVs Foreclosure Action)
5. Texas 101st District Court, Case No: DC-14-09604 (Petitioners Tex.R.Civ.P.
736.11(a) Action that invoked automatic stay of non-judicial foreclosure sale)
6. Removed by LNV Sept. 2014, U.S. District Court Northern District of Texas Dallas
Division, Case No: 3:14-cv-03322-M-BN (Remanded Jan 27 2015)
7. Removed by LNV Mar 2015, U.S. District Court Northern District of Texas Dallas
Division, Case No: 3:15-cv-00703-B (2nd removal was 169 days after service and
after remand in violation of 28 U.S.C. 1446(b)(1) LNVs Judge Shopping for
Guaranteed Summary Dismissal)
8. U.S. Fifth Circuit Court of Appeals, Case No: 16-11576 (Appeal of Case No: 3:15-
cv-00703-B)

Attorney and filing fees approximately $9,000 before and as Pro se

The highest Texas Court to review the merits of the Breitlings EVICTION CASE appear

at Appendix 1, Appendix 2, and Appendix 3 to the petition and the status of its

publication is unknown to Petitioners. The Beal victims believe the fact that LNV aka

Andy Beal dragged the Breitlings through so many state and federal courts simultaneously
7
on the same legal issue is an egregious violation of due process and equal protection. Any

reasonable person who reviews what happened to the Breitings in the Texas courts could

ONLY conclude that criminal conspiracy occurred to predetermine the judicial outcome;

and that Andy Beal used his excessive wealth and political influence to accomplish this.

The Breitlings petitioned the Texas Supreme Court but their petition and their motion for

rehearing were denied for lack of jurisdiction, see Appendix 4. Since when does the

highest state court lack jurisdiction over questions arising from its own state constitution

and the United States Constitution?

It is noteworthy and essential to the constitutional questions presented by the Breitlings

case that the Texas Fifth Court of Appeals memorandum opinions fail to address any of

the undisputed factual allegations that comprise the merits of the case and ignore

Petitioners black letter of the law state remedy under Tex.R.Civ.P 736.11(d); and that

the court specifically ignored Petitioners formally raised constitutional questions when

Article VI, Clause 3 of the United States Constitution states:

(J)udicial officers, both of the United States and of the several states, shall
be bound by oath or affirmation, to support this Constitution...

Petitioners and other Beal victims filed formal notices of constitutional questions pursuant

to 28 U.S.C. 2403 and FRCP 5.1(a)(1) et seq; and the lower courts in their cases ignored

these constitutional questions as well.

8
Petitioner Denise Subramaniam:
1. U.S. 9th Circuit Court of Appeals, Case No. 15-35963 (Not Yet Decided)
2. U.S. District Court for Oregon, Case No: 314-cv-01836-MO (Summary Judgment
favoring LNV)
3. Washington County Oregon District Court, Case No. C155181CV (Sheriff Sale and
Eviction Executed without Service to Petitioner)
4. Oregon Court of Appeals, Case No. A162998 (Dismissed due to procedural error)
5. U.S. District Court for Oregon, Case No: 314-cv-01836-MO (Summary Dismissal
favoring MGC and others)

Paid attorney fees in excess of $7,000 before becoming Pro se

Petitioner Robynne A. Fauley:


1. U.S. 9th Circuit Court of Appeals, Case No. 16-35593 (Not Yet Decided)
2. U.S. District Court for Oregon, Case No: 3:15-cv-01422-HZ (Summary Judgment
favoring LNV)
3. Clackamas County Oregon District Court, Case No. 16CV24589 (Sheriff Sale and
Eviction Eminent)
4. U.S. Bankruptcy Court District of Oregon, Case No: 16-31804-pcm13 (Voluntarily
Dismissed by Petitioner)
5. U.S. District Court for Oregon, Case No: 3:13-cv-00581-MO (Summary Dismissal
favoring LNV, MGC and others)

Paid attorney fees in excess of $68,000 before becoming Pro se

Petitioner Catherine Gebhardt:


1. U.S. District Court Eastern District of Tennessee at Knoxville, Case No: 3:15-cv-
286-JBR (Summary Dismissal favoring Beal Financial Corp.)
2. U.S. 6th Circuit Court of Appeals, Case No. 14-5605 (District Court Decision
Upheld)
3. U.S. District Court Eastern District of Tennessee at Knoxville, Case No: 3:12-CV-
468-TAV-HBG (Summary Judgment favoring LNV)
4. U.S. District Court Eastern District of Tennessee at Knoxville, Case No: Case No.
3:2009-cv-00425 (Summary Dismissal, Removed by MGC/GMAC)

9
Paid attorney fees approximately $30,000 before becoming Pro se

Petitioners Christopher & Marcia Swift:


1. 16th Judicial Circuit Kane County Illinois, Case No:2016 CH 593
2. U.S. District Court Northern District of Illinois, Case No: 1:16-CV-10729

JURISDICTION
JoAnn & Samuel Breitling: The date the on which the highest state court decided not to

review my case was12/9/2016. A copy of that decision appears at Appendix 4 (Note: the

Breitlings case was never decided on merits; the Texas Supreme Court claimed it lacked

jurisdiction and issued a discretionary denial to review in err.) So the jurisdiction of this

Supreme Court is invoked under 28 U. S. C. 1257(a).

All Petitioners:

Article III, Section II of the United States Constitution

Additionally the jurisdiction of this Supreme Court is invoked under Article III, Section II

of the United States Constitution.

The named Petitioners herein and the many other Beal victims not directly named as

Petitioners have experienced unconstitutional overt discrimination against them by both

federal and state court judges who routinely, and improperly so, grant summary judgments

and summary dismissals to foreclosing parties.

10
LNV Corporation is a corporate fiction alter ego for Daniel Andrew Andy Beal

incorporated illegally in Nevada. Andy Beal is also sole owner of pseudo banks Beal

Bank SSB and Beal Bank USA (another illegally incorporated Nevada corporation) and

numerous other corporate fictions comprising his enterprise which forecloses on properties

with forged mortgage related documents made to appear authentic by the fraudulent use of

mail and wire services to record these false instruments in county recorders offices across

the country with intent to deceive courts where Beal hires an army of corrupt attorneys to

willfully abuse judicial process and commit fraud upon the court to steal the homes of his

victims, without a jury trial, via summary judgments and summary dismissals, thus

denying them due process and equal protection of the law.

I consider trial by jury the greatest anchor ever yet devised by

humankind for holding a government to the principles of its

constitution. Thomas Jefferson, 1792.

Many respected commentators and judges have criticized summary judgment as being

unconstitutional. The American jury trial is a constitutional right. One of the primary

concerns of the founding fathers was preventing the United States of America from

developing an oppressive government. Much of the Bill of Rights was born out of that

concern. A primary strength of the jury trial is that it acts as a check to unfettered

prosecutorial power. If judges decided every case, it could raise a number of concerns

about fairness in the judicial process. The public trust in our judiciary erodes whenever

11
the appearance of judicial bias goes unchecked and uncorrected, and whenever actual

judicial bias goes unpunished. The discriminatory abuse of summary judgments has

eroded our judiciary into an oppressive mechanism for imposing the undemocratic will of

an elite corporate oligarchy on the masses thorough civil litigation that often results in an

unconstitutional deprivation of life, liberty and property.

12
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1) U.S. Constitution Article VI, Clause 3 judicial oath to support U.S. Constitution
2) Due Process under the Fifth Amendment to the United States Constitution
3) Due Process under the Fourteenth Amendment to the United States Constitution
4) Equal Protection under the Fourteenth Amendment to the United States
Constitution
5) Right to a jury trial under the Seventh Amendment to the United States
Constitution
6) Freedom of speech under the First Amendment to the United States Constitution
7) 28 U.S.C. 1446(b)(1) - Procedure for removal of civil actions
8) 42 U.S.C. 1981 - Equal rights under the law
9) 42 U.S.C. 1982 - Property rights of citizens
10) 42 U.S.C. 1983 - Civil action for deprivation of rights
11) 42 U.S.C. 1985 - Conspiracy to interfere with civil rights
12) 42 U.S.C. 1988 - Proceedings in vindication of civil rights
13) 18 U.S.C. 4 - Misprision of felony
14) 18 U.S.C. 241 - Conspiracy against rights
15) 18 U.S.C. 242 - Deprivation of rights under color of law
16) 18 U.S.C. Chapter 96 Racketeer Influenced and Corrupt Organizations
17) 18 U.S. Code 1341 - Frauds and swindles
18) 18 U.S. Code 1343 - Fraud by wire, radio, or television
19) 18 U.S.C. 1964 - Civil remedies
20) 28 U.S.C. 2403 - Intervention by United Statesconstitutional question
21) FRCP 5.1 et seq. - Constitutional Challenge to a Statute

13
STATEMENT OF THE CASE

1. What has happened to the Beal victims should never have happened in the United

States. Our government and our Constitution should have protected us. What

happened to us is a crime and the people responsible for perpetrating this crime

against us should go to prison. Instead we, the victims, are punished in inhumane

ways. The perpetrator behind the crime is Daniel Andrew Andy Beal, a Texas

multi-billionaire renown for losing up to $50 Million in a single high stakes poker

game. Andy Beal was instrumental to the execution of the Trump coup. His super

Pac Save America From Its Government paid for false ads and alternative news

that characterized the Trump campaign of fraud perpetrated against the American

people that has robbed us of honest service.

2. D. Andrew Beal is a master of illusion. And like the man his ill-gotten excessive

wealth helped put into the White House he intimidates and threatens media sources

that would tell the truth about him. He has threatened the Beal victims for speaking

out against him. (First Amendment) Andy Beal is a very powerful and politically

influential person; by contrast the Beal victims are average middle class Joes who

have paid dearly over the course of decades for their homes; their little a piece of the

American Dream and their hope for financial liberty and security in their old age.

Then Andy Beal and his fraud machine came along and life as they knew it was over.

14
3. Andy Beals alternative fact that his hired guns spout over and over in courtrooms is

that homeowners are deadbeats who just want a free house. The only party stealing a

free house is Andy Beal and co-conspirators in his scheme and artifice to defraud.

4. In so doing Andy Beal strips wealth from his victims, from their State governments

and from the federal government. He hides and launders his illegal profits to avoid

regulation and paying taxes. The Beal victims have international fed wire receipts

and tax forms showing how Andy Beal and his co-conspirators defraud the IRS by

laundering his ill-gotten proceeds through EIN numbers for employee retirement

funds. Bankruptcy records in some Beal victims cases show he abuses Trustee

accounts to hide or launder his ill-gotten proceeds. The Beal victims 1098 forms

show Beals sham mortgage servicer MGC Mortgage Inc. (MGC) doesnt have an

IRS EIN number and that Andy Beal claims losses on foreclosures that never

happened or for principal balance forgiveness that never occurred.

5. Every penny that goes into Andy Beals pocket is a penny taken away from the

American people, not just the Beal victims. Andy Beal drains our economy for his

personal gain and pleasure while our roads and bridges crumble, and millions of

Americans have no access to medical care or to justice, and every city in America

carries the heavy burden of thousands of homeless people living on the streets, and

our public schools struggle to service the special needs of hundreds to thousands of

15
homeless children, many whose families became homeless due to fraudulent

foreclosures.

6. Thousands of disabled people and seniors (including Petitioner Denise Subramaniam)

who spent their lives paying down their mortgages now live in their vehicles or in

even worse circumstances. The largest property heist by fraud in history has driven

rents to record heights making housing unaffordable for Americans living on limited

social security incomes (or minimum wage); and the government cannot afford to pay

for public services to help them because of the tax drains caused by the fraudulent tax

schemes of Americas wealthiest (especially Any Beal).

7. The justices of the U.S. Fifth Circuit Court of Appeals determined Andy Beal creates

corporate fictions for sham tax shelters; see Southgate Master Fund, LLC v. United

States, 659 F. 3d 466 (5th Cir. 2011); and that he pays people well to say what he

wants them to say; see Bemont Investments, L.L.C. v. United States, 679 F.3d 339 (5th

Cir. 2012). A read of these two cases provides insight into Andy Beals modus

operandi and his business model which is relevant to this case. Just as he controlled

the sham Southgate related corporate entities; make no mistake Andy Beal is in full

control of every aspect of his corrupt business operations.

8. A significant component to Beals modus operandi is that he seeks ways to

circumvent the law and hires a cartel of corrupt attorneys to achieve these ends. A

significant number of attorneys on Beals payroll came from Jenkens & Gilchrist PC,
16
a Dallas-based law firm that expanded into a national law firm in the 1990s and began

a lucrative practice of offering tax shelter advice to a variety of wealthy corporate and

individual clients. In 2003 the IRS sued Jenkens & Gilchrist and the firm began to

unravel. Many of its attorneys found a new home at Hunton & Williams, a firm

frequently used by Andy Beal. On May 24, 2011, four Jenkens & Gilchrist attorneys

were found guilty of tax evasion, conspiracy, and related charges stemming from a

ten-year tax shelter scheme that prosecutors said generated more than $1 billion in

fictive losses. (See similarities in Southgate and Bemont.)

The Beal Scheme and Artifice to Defraud

9. Andy Beal perfects tens of thousands of foreclosures using false, forged and robo-

signed mortgage related documents. To give his forgeries the appearance of

authenticity he uses mail and wire services to record his forged assignments of

mortgage or assignments of deeds of trust with county recorders offices across the

country. Andy Beal knows once they are recorded judges will rely on his forgeries as

genuine. (No checks or balances exist to prevent the recording of forged mortgage

instruments.) Andy Beal submits these recorded forged instruments to courts as

genuine, when he knows they not, with intent to deceive courts into believing he (i.e.

his sham corporate fiction alter egos LNV Corporation, Beal Bank USA, LPP

Mortgage Ltd., MGC Mortgage Inc., etc.) have standing to foreclose when he knows

he lacks such standing.

17
10. Much of the paperwork Andy Beal acquired was thrown out by the big securitization

players: Bear Stearns, GMAC, Citi, Wells Fargo, Bank of America, Credit Suisse, etc

in anticipation of government bailouts because these specific mortgages had been

originated in fraud and fraudulently securitized. Andy Beal acquired only paperwork

for pennies; not negotiable instruments. He knew this because on March 18, 2008 he

placed a full page ad in the Wall Street Journal that contained an open letter to Ben

Bernanke. See Appendix 5.

11. Andy Beal was already putting his foreclosure fraud machine into place when he

published that open letter to Ben Bernanke. He incorporated his sham MGC Mortgage

Inc. (MGC) in Texas on January 17, 2008. Several Beal victims, including Beal

victim Stewart Hamm, have assignments of deed of trust recorded by Andy Beals

MGC with execution dates of January 8, 2008 where the 2008 was crossed out by

hand and 2009 was hand-written above it.

12. MGC is purported by Andy Beal to be a mortgage servicer, but Beal never intended

his corporate fiction to actually service mortgages; it doesnt even have an IRS EIN

number so it cannot legally have employees. If the Beal victims had discovery they

would be able to prove that people purporting to be MGC employees are actually paid

by and employed by Beal Bank SSB, Beal Financial Services, Beal Service

Corporation or some other Beal entity.

18
13. This is relevant for two reasons: 1) this evidence would undermine the validity of

numerous false perjured affidavits and declarations by purported MGC employees

and attorneys that Andy Beals sham corporate fictions submit to courts to steal

summary judgments for foreclosure because judges rely on them as being genuine; 2)

it would show a co-mingling of assets between the purportedly separate Beal

corporate fictions with intent to deceive. This is criteria for piercing the corporate veil

of Andy Beals corrupt enterprise.

14. Andy Beals intent for his sham MGC was not to service mortgages; but to put

unsuspecting homeowners who were current on their mortgages into default; then to

profit from the very scenario he described in his open letter to Mr. Bernanke. He then

fabricates counterfeit foreclosure documents and perfects foreclosures; and has the

best of the financial and tax worlds compared to real banks.

15. In 2009 and 2010 numerous consumers, including some of the Beal victims named as

Petitioners herein, wrote to then Texas Attorney General Gregg Abbott about how

MGC failed to take their payments blaming it on computer system problems. MGC

employees told them not to worry, just to hold on to those payments and they

wouldnt be faulted for being late once the system was up. Of course that was not

what happened. After three months their old mortgage servicers said the transfer to

MGC failed and to resume payments to the old servicer; AND, by the way, they were

in default. The Beal victims had the payments they were holding onto, but old

19
servicer tacked on exorbitant fees which most Beal victims couldnt pay. This

plunged them into a perpetual dispute over payments and servicing and set them up

for eventual foreclosure and/or bankruptcy, yet another cash cow for Beal.

16. With his fake mortgage servicer MGC, Andy Beal could milk both ends of the

foreclosure cow. Read the Bernanke letter more carefully:

these contracts permit the loan servicers to advance payments on behalf of


defaulted homeowners for years and years and years at interest rates of 12%
and moreThis mechanism effectively transfers funds that really should
belong to the AAA securities to junior securities. Servicers that own junior
securities are incredibly motivated to drag their feet resolving defaulted loans,
which results in great loss to the AAA holders. This is not a misprint: Defaulted
first mortgage home loans may become a net liability, not an asset, to some of
the AAAs. This is still not widely understood.

17. For we Beal victims who have discovered how Andy Beal operates, phrases like

may become a net liability, not an asset conjure up images of cooking the

books and sham tax shelters and make us think about what the Fifth Circuit

Justices said in Southgate and Bemont; and about all those former Jenkens & Gilchrist

attorneys Andy Beal and his cohorts like so much. The phrase This is still not

widely understood appears to invite Wall Street Journal readers other than Ben

Bernanke to come talk to me because I understand and I can help.

18. A lot was going on in March 2008; and deception was a huge part of it. Bear Stearns

collapsed, and Ben Bernanke was under a lot of pressure. On March 14, 2008, the
20
Federal Reserve Bank of New York agreed to provide a $25 billion loan to Bear

Stearns collateralized by free and clear assets from Bear Stearns in order to provide

Bear Stearns liquidity the market refused to provide for up to 28 days. Shortly

thereafter the Federal Reserve Bank of New York had a change of heart. They

changed the deal, instead the NY FED would create a company to buy $30 billion

worth of Bear Stearns assets. Two days later, on March 16, 2008, Bear Stearns signed

a merger agreement with JP Morgan Chase in a stock swap worth $2 a share or less

than 7 percent of Bear Stearns market value just two days before. There was talk on

Wall Street about Bear Stearns being set up for this. We dont know about that but

were pretty sure if the NY FED had bought Bear Stearns assets they would discover

a lot of dirty secrets. (Petitioner Denise Subramaniams mortgage was securitized in

a Bear Stearns Trust; and indisputable evidence is in her court records.) JP Morgan

Chase would keep those secrets; for a price. All those Wall Street bankers had to be

looking for a way to fence the security worlds equivalent of stolen goods; and

quickly.

19. A government bailout was already on the discussion table in March 2008. Big Banks

knew government scrutiny and regulation comes with bailouts. As a private investor

who calls himself a banker Andy Beal escapes government oversight. The Beal

victims are sure he saw (or was offered) the opportunity to become the fence

desperate Wall Street bankers needed. Andy Beal had already set up his sham

mortgage servicer MGC in January and on March 17, 2008 the day before he
21
published his full page ad in the Wall Street Journal Andy Beal incorporated LNV his

vehicle for hiding assets disguised as liabilities for tax evasion and

international money laundering. Andy Beals March 18, 2008 ad in the Wall Street

Journal would pop off the page for desperate and frenzied Wall Street bankers.

20. A couple Beal victims didnt fall for Andy Beals MGCs nonsense in 2008.

Petitioners JoAnn and Samuel Breitling had been approved to refinance their 12.75%

Aames Texas Home Equity Loan at 7% with another lender in June 2008 when they

got the letter from their old servicer stating MGC would be taking over the servicing

of their loan. (Evidence is in their court records) The Breitlings requested a payoff

statement multiple times, but MGC never provided it causing them to lose the

opportunity to refinance at a lower rate. (The failure of MGC, or a predecessor, to

provide a payment history or a payoff statement so homeowners could refinance is a

common factor to many of the Beal victims, including the Swifts and Ms.

Subramaniam.)

21. Hmmm since Andy Beal knew he could profit for years and years and years at

interest rates of 12% and more (Ben Bernanke letter) dont you think his

entrapment of the Breitlings and the other Beal victims into his fraud machine was by

design?

22. Since the Breitlings lived in the Dallas area they saw Craigslist employment ads for

MGC seeking high school graduates. They were negotiating with MGC for a
22
modification since MGC deprived them of their lower interest refinance offer. When

MGC wouldnt take their payments they became suspicious. They demanded MGC

take their payments and were eventually told to make payments to Graystone

Solutions at 142 North Rd. Suite G, Sudbury, MA 01776 which they did. After this

MGC refused to modify their loan because they were uncooperative. The Breitlings

drove to MGCs address 7195 Dallas Pkwy, Plano, TX 75024 and discovered it was

an empty lot. They took pictures. They also sued. And they connected with other

MGC victims. Documentation and photographs to substantiate their claims are in

their court records, but were completely ignored by federal Judge Jane Boyle; who

just happens to be a dear close friend of Harriet Miers a senior partner at Locke Lord

the law firm representing LNV aka Andy Beal in Case No: 3:15-cv-00703-B. The

Breitlings case ended up in her lap when LNV removed a second time on March 3,

2015 on federal question jurisdiction after the case had already been remanded by

federal Judge Barbara Lynn on January 27, 2015. This second removal was 169 days

after LNV had been served summons on September 15, 2014 and in clear violation of

the explicit language of 28 U.S. Code 1446(b)(1):

The notice of removal of a civil action or proceeding shall be filed


within 30 days after the receipt by the defendant, through service or
otherwise

23. Petitioners collected data on Judge Jane Boyles rulings. They could not find a single

case where she has ever ruled against a party represented by Locke Lord. Petitioners

23
found 105 foreclosure related cases presided over by Judge Jane Boyle, most removed

by foreclosing parties. In more than half these cases the homeowners were pro se

litigants. Not one of these 105 cases went to a jury trial. Only two cases were settled.

The rest were dismissed with prejudice against homeowners pursuant to Rule 12 or by

summary judgment pursuant to Rule 56. Not once has Judge Boyle ruled in favor of a

homeowner. Cases involving homeowners with Hispanic names were summarily

decided more quickly than in other cases; with all such homeowners being deprived

of their property without due process, without equal protection of law and without a

jury of their peers.

24. Petitioners attempted to locate nationwide statistical data about foreclosure related

cases, pro se litigant cases, and civil rights cases and discovered NOT ONE

government agency nor the courts compile such data that would be extremely helpful

in determining whether homeowners and/or pro se litigants are discriminated against

by the courts. Petitioners personal experiences most certainly indicate that they are.

25. In October 2008 GMAC told Petitioner Catherine Gebhardt the servicing of her loan

was transferring to MGC. She never got a welcome letter from MGC (another fact

common to most Beal victims and this in their court records.) She asked GMAC for

MGCs address and sent MGC a $6,000 cashier check to cover two months of

mortgage payments. Like so many Beal victims Gebhard could not reach MGC by

phone to confirm her payments were received. In December 2008 she phoned GMAC

24
and was told she needed to make yet another payment. Then in January 2009 GMAC

told her the servicing transfer didnt go through and her payments were increasing to

more than $4,000/month. Gebhardt had paid nearly $12,000 to GMAC and MGC by

the end of January 2009, but was told she was in default. GMAC claimed they never

got her $6,000 cashiers check. Gebhardt stopped making payments and sued MGC

and GMAC in September 2009. (Case No. 3:2009-cv-00425, U.S. District Court

Eastern District of Tennessee at Knoxville)

26. Like the other Beal victims she reached out to government officials for help. In a

letter mailed by MGC to her Congressman Phil Roe dated July 23, 2011 Texas

attorney Erica Thomas (Texas Bar #: 24042027) who failed to identify herself as an

attorney and instead falsely claimed to be the Vice President of MGC, told

Congressman Roes Administrative Assistant Ms. Sheila Houser that MGC took over

servicing of Ms. Gebhardts loan on or around July 1, 2009 and that MGC had

received no payments from Gebhardt. (Now why would Ms. Gebhardt mail anything

to MGC in October 2008, let alone a cashiers check, when according to Ms. Thomas

Ms. Gebhardt would have no reason to even know MGC existed?)

27. In 2013 Ms. Gebhardt finally obtained a copy from her bank of the $6,000 cashiers

check made payable to MGC she had sent in October 2008. The back of the check

shows it was paid to Beal Bank SSB on October 29, 2008. The cashiers check along

with her bank statements was put into court record to substantiate her foreclosure

25
defenses, however federal Judge Thomas A. Varlan ignored it. This cashiers check

shows co-mingling of assets between the purportedly separate Beal corporate

fictions. It also indisputably shows Ms. Gebhardt was put into a trumped up default

by MGC aka Andy Beal who failed to credit her $6,000 payment to her mortgage.

Most people would consider this mortgage servicing fraud, but apparently Judge

Varlan and the Justices of the Sixth Circuit Court of Appeals do not.

28. The returned cashiers check is indisputable evidence that attorney Erica Thomas,

who should know better as per her professional code of conduct, conspired with Andy

Beal and/or his other cohorts to intentionally deceive Gebhardts Congressman with

false claims (18 U.S. Code 1341 - Frauds and swindles) using the U.S. mail to

deliver the false claim meant to deceive Congressman Roe and his staff. (18 U.S.

Code 1341 - Frauds and swindles)

29. Misappropriation of mortgage payments and trumped up defaults common to the Beal

victims. Gebhardts $6,000 check to MGC and the Erica Thomas letter is included in

court records for many of the Beal victims along with their own similar records. A

very small sampling of such evidence includes Denise Subramaniams bank

statements showing each payment LNVs predecessor Bear Stearns EMC Mortgage

claimed shed missed was in fact paid, Stuart Hamms canceled checks showing he

made the payments LNV claimed he missed in a motion to remove a bankruptcy stay

so LNV could foreclose on his property. Bank records that show automatically

26
generated checks made payable to MGC by Cammy Depew were never cashed,

becoming the trumped up cause of her mortgage going into default. (Another

commonality with Beal victims is that most had built up considerable equity in their

properties.)

30. Petitioner Ms. Gebhardt, like numerous other Beal victims, including, but by no

means limited to: Denise Subramaniam, Christopher & Marcia Swift, Robynne A.

Fauley, Tuli Molina-Wohl, Tarnetta & Michael Saddler, Rhonda Hardwick, Robert

Allison, and Rob Robertson have assignments of deed of trust recorded by MGC with

their county recorder purporting to convey beneficial interest in the mortgage to LNV

Corporation on March 10, 2008. Remember Andy Beal incorporated LNV on March

17, 2008, the day before he published his Ben Bernanke letter in the Wall Street

Journal. LNV did not exist on March 10, 2018. (Certified copies of LNV Articles of

Incorporation have been entered into court records in all these cases.) The Beal

victims have entered into court record formal Notices of Related cases. They believe

they should be certified as a class and appointed counsel. Perhaps then they would

have a more equal judiciary footing against Giant Big Bad Andy Beal. Again district

court judges ignored these notices. Whenever they filed motions to consolidate (even

their own cases) this is denied too.

31. The Fifth Circuit recently denied Petitioners JoAnn and Samuel Breitlings motion to

consolidate the two cases which are actually one state case (Texas 101st District

27
Court, Case No: DC-14-09604) removed TWICE to federal court by LNV aka Andy

Beal to prevent them from securing their state remedy pursuant to Tex.R.Civ.P.

736.11(d). The Breitlings wanted to consolidate the two removals (3:14-cv-03322-M-

BN and 3:15-cv-00703-B because they are really the same case and it is important for

the Appeals court to know this to understand what has really happened. Of course

LNV aka Andy Beal wants to confuse the court and convolute the litigation so he can

get away with his thievery.

32. The Breitlings October 20, 2000 Aames Note identifies the loan as Texas Home

Equity Security Instrument.

THIS SECURITY INSTRUMENT SECURES AN EXTENSION OF


CREDIT AS DEFINED BY SECTION 50(a)(6), ARTICLE XVI OF THE
TEXAS CONSTITION.

33. Section 50(a)(6) Article XVI of the Texas Constitution defines Tex. R. Civ. P 736.11

et seq. as the procedures governing foreclosures of Texas Home Equity Loans.

34. The Breitlings state case filed on August 29, 2014 i.e. Breitlings v. LNV Corporation

et al; Civil Cause DC-14-09604 pursuant to Tex. R. Civ. P. 736.11(a) invoked an

automatic stay of LNVs non-judicial foreclosure sale scheduled for September 2,

2014. LNV violated the automatic stay and sold Breitlings property. The Breitlings

notified the Trustee that the sale was void, to no avail. On September 5, 2014, LNV

illegally transferred title from Breitlings to themselves and willfully recorded a void

Trustee Deed with the Dallas County Recorders Office. LNV then used that self-
28
serving void Trustee Deed to evict Breitlings from their property on February 3, 2017

while their 736.11(a) case is on Appeal in the Fifth Circuit.

35. Because the automatic stay was in effect, Rule 736.11(d) voids the foreclosure sale.

Rule 736.11(d) states:

If the automatic stay under this rule is in effect, any


foreclosure sale of the property is void...

36. LNV aka Andy Beal removed the Breitlings state case to federal court on September

15, 2014 as Case No: 3:14-CV-3322-M-BN the same day they were served with

intent to deprive them of their black letter of the law state remedy (which they did.)

37. Beal and the attorney lieutenants of his crime organization have manipulated and

abused judicial process at every turn with intent to deprive the Breitlings of their

constitutional rights to due process and equal protection under color of law. For

nearly three years Andy Beal has dragged the Breitlings through no less than eight (8)

courts often simultaneously. This is an intentional litigation strategy that is designed

to increase litigation cost for homeowners with attorneys (so they will lose them or be

unable to pay them). He recently did this in Petitioners Christopher and Marcia

Swifts case. He sued them in federal court to collect on the note while he had already

sued them in state court for foreclosure. Her attorney won a stay on the federal case

Appendix 6 but Beals cartel of attorneys has intimidated or threatened her attorney,

and even though they have paid him $43,265.63 in attorney fees he fears the case will
29
become a financial burden because he knows he can expect more of the same. How

can homeowners have a fair shake in the courts against Andy Beals excessive wealth

and legally abusive practices?

38. Petitioner Robynne Fauley spent nearly $68,000 in attorney fees. The Beal cartel

intimidated her attorney too. He did a good job at first but then at the end its like he

went limp. He failed to make critical arguments against LNVs claims and lost

summary judgment. It appears he may have been paid off. Another experience

shared by many of the Beal victims. The Breitlings hired an attorney J.D. Milks who

so clearly worked against their interest that the Texas Bar took disciplinary action

against him. (That is a rare event.) Then theres attorneys Andy Farmer and Doug

Taylor in Petitioner Catherine Gebhardts case. Everything is in her court records.

39. Once Andy Beal causes his victims to become pro se litigants he knows hes sealed

their fate. He tastes victory. He knows the judges hate pro se litigants and will

anything possible to get rid of them quickly; summary judgments and summary

dismissals let them do it. Andy Beal knows the Petitioners help each other to try to

overcome the huge edge he has over them, so he organizes and coordinates litigation

events to overwhelm them. His wants to make it as difficult as possible for them to

meet deadlines. Each time one of his victims loses he uses their cases as precedence

against the Beal victims hes still fighting in courts.

30
40. On October 4, 2010 Then Attorney General Gregg Abbotts office wrote a letter to

Andy Beals MGC warning that if MGC was perfecting foreclosures that used robo-

signing and other techniques identified in the letter the foreclosures were void and

MGC would be in violation of several Texas laws and penal code. Appendix 7. This

letter was entered into the Beal victims court records. Hunton & Williams attorney

Peter Weinstock wrote a reply letter telling the AGs office that MGC did not use

such practices. The October 4th warning letter to MGC informed Andy Beal that it

was discovered in court depositions that employees of Ally/GMAC, Chase and Bank

of America were engaging in these practices.

41. If Mr. Weinstock was telling the truth then why do so many Beal victims have robo

signed recorded assignments executed on March 10, 2008 that purport to covey

interest to LNV before LNV was incorporated? These assignments are all endorsed

by GMAC employees. They are signed by either Betty Wright or Michael Mead

endorsing in behalf of either MERS (Michael Mead) or a purported GMAC corporate

entity (Betty Wright) and they are all notarized by Diane Meistad. The Beal victims

have collected more than 100 such instruments recorded by MGC from county

recorders across the country including Washington and Clackamas Counties in

Oregon, Maricopa County Arizona, Forsyth County North Carolina, Pottawattamie

County Iowa, DeSoto County Mississippi, Chester County Pennsylvania, Martin

County Indiana, Oakland County Michigan, Miami-Dade County Florida, and Kane

County Illinois just to name a few. The signatures of Betty Wright and Michael Mead
31
are consistent with robo-signed signatures. Numerous variations exist that show

multiple individuals made these endorsements. (Petitioners and the other Beal

victims argued this as a foreclosure defense and submitted the numerous instruments

with side by side comparisons of the signatures and explanations showing how

multiple people were making the signatures, but the judges ignored it all.)

42. More importantly Petitioners showed the courts how the purported chains of title as

shown through all the deed assignments recorded with the counties was broken and

that LNV claims were false as a result; all treat with the exact same judicial silence.

43. For example MGC or LNV submitted into court records in Petitioners and the other

Beal victims foreclosure cases undated and unattached allonges purporting to convey

beneficial interest in the note to LNV Corporation endorsed by GMAC employee

Jason J. Vechicco. Petitioners Christopher & Marcia Swift had these assignments and

allonges forensically examined twice. The first examination determined that multiple

individuals made the Michael Mead signatures and that it appears some of these were

made by the notary Diane Miestad. The second forensic examination was done by

Board Certified Robin D. Williams, MFS, MS, D-BFDE from OMNI Document

Examinations. They did a comparison of the Jason J. Vecchio signatures and

discovered they were indeed all spot on matches one to the other and were stamped or

otherwise duplicated. The OMNI Preliminary Report dated December 4, 2014 was

submitted into court record in Petitioners cases. Petitioners also included Jason J.

32
Vecchios authenticated signatures from certified copies of his own deed of trust, and

certified copies of his notary signature card recorded with the Minnesota Secretary of

State, as well as other certified court documents to show that in March 2008 when he

purportedly endorsed these allonges his legal name was Jason Vecchio-Smith (and we

had copies of numerous instruments he actually did sign in 2008 which did not match

the signatures on the allonges LNV filed into court record to show standing to

foreclose. But none of this mattered to federal Judges Thomas Varlan, Michael W.

Mossman and Marco A. Hernandez; they ignored them and made no mention of them

in their memorandum orders.

44. The 2002 National Settlement with Ally/GMAC, Bank of America, Citi, JP Morgan

Chase, and Wells Fargo has not slowed down or in any way affected the rate in which

Andy Beal continues to perfect foreclosures using the same robo-signed and false

instruments the government told the Big banks they couldnt use. Interesting

enough not a single penny of Gregg Abbotts share of the 49 Attorney General

settlements went to help homeowners.

45. The most damning evidence of Andy Beals forgery wasnt discovered until Petitioner

Denise Subramaniam had been thrown out of her home of 20 years by Andy Beal aka

LNV in February 2016. When LNV sued her for foreclosure in mid-November 2014,

just days after a series of threatening letters she received from Andy Beals attorney

Pat J. Heptig. (https://www.scribd.com/document/238783107/Sorry-Mr-Beal-

33
Demanded-I-Remove-What-was-Here) Ms. Subramaniam was not yet approved for

electronic filing privileges so she only had the black and white printouts she received

via U.S. mail. After she was thrown out of her home most of her possessions were

packed into boxes by Andy Beals thugs and put into multiple storages units more

than ten miles away. She did have access to those hard copy files so had to download

LNVs original complaint from PACER. One of the exhibits LNV submitted into

PACER with intent to defraud was a purported copy of her original deed of trust i.e.

Doc. 5-2 in the Oregon District Court Case No. 314-cv-01836-MO; resubmitted as

Dkt. 7-11 from Ninth Circuit Case No. 15-35963 where she pointed out areas that

show forgery on the document. However additional area on this electronic file that

evidence fraud were pointed out to her more recently.

46. On page 15 of either Doc. 5-2 or Dkt. 7-11 downloaded directly from PACER if one

zooms in to 300% you can see that the first two letters in De of Denise in the

signature when compared with the letters that follow them are very different. The line

weight strength and consistency of the D and e is very different from the nise

that follow these first two letters. You also can see that the background is different

and looks like it was cut and pasted. These features indicative of digital cut and paste

are also apparent in the date section above her name. Next go to page 18 and zoom in

on her initials at 300% and compare with other initials they dont appear consistent

with her initials on other pages. Zoom to 800%. The uniform spread of color and the

hard jagged edges indicate this set of initials were made with the paint brush or pen
34
tool within Photoshop. It you write something with a pen then look at what you

wrote with a magnifying glass youll see that ink flowing from the pen is unevenly

distributed and results in areas where the line is faded compared to other areas of the

ink strokes. It is obvious this set of initials was electronically cut and pasted onto the

document. Part of the line under the initials is blue and part is black. If this was

genuine the line on the black & white form would consistently be black. Breaks

between these differently colored sections of the line are clearly seen. The white

space around the bottom of the letter D also indicates forgery. The letter D

would sit on top of the line with no white space between the edges of the letter and

the line if this were genuine. Next go to page 15 and zoom into the initials at 800%.

Do you really think Ms. Subramaniam used a blue pen to form the D one period

and then the S then but switched to a black pen to make the period after the S?

No reasonable person would believe that.

47. Evidence of forgery in these documents is glaringly obvious. Yet apparently Judges

cant see what average middle class Joes can see. Due process dictates we Beal

victims be allowed discovery in the form of expert forensic examination; and since

foreclosing parties have the burden of proof AND the wealth AND all other

advantages; they should be required to pay for authentication.

48. The obviously forged Subramaniam deed of trust was indisputably entered into

PACER via wire transmission by LNV aka Andy Beal with intent to deceive the

35
federal government with a counterfeit instrument. (18 U.S. Code 1343 - Fraud by

wire, radio, or television; 18 U.S. Code 1341 - Frauds and swindles; 18 U.S.C. 4 -

Misprision of felony; 42 U.S.C. 1982 - Property rights of citizens; 18 U.S.C. 241 -

Conspiracy against rights; 18 U.S.C. 242 - Deprivation of rights under color of

law.). Forgery is a felony crime in every state in this nation. These repeated and

continued acts by Andy Beal meet the predicate acts for RICO prosecution. (18

U.S.C. Chapter 96 Racketeer Influenced and Corrupt Organizations)

49. Mrs. Subramaniam has been living in the back of her Jeep with severe physical pain

because of her disabilities for more than a year because Andy Beal stole her home of

20-years with a forged note, a forged deed of trust, forged allonges and forged and

robo-signed assignments of deed of trust. In January she slept in her Jeep when the

temperatures were 200 Fahrenheit outside. This is inhumane punishment; shes not

the criminal Andy Beal is. Shes his victim.

50. Unknown to Ms. Subramanaim in November 2014 when LNV aka Andy Beal filed a

foreclosure action against her; the Statute of Limitations had ran uninterrupted from

June 28, 2006 until the debt on Ms. Subramaniams note expired on June 28, 2012,

pursuant to ORS 73.0118(1):

action to enforce the obligation of a party to pay a notemust be

commenced within six years aftera due date is accelerated

(See Ninth Circuit Case 15-35963, DktEntry: 54, filed 01/05/2017.)


36
51. LNV never had standing to foreclose on Ms. Subramaniams property and he knew it.

No one manufactures counterfeits when they have the real thing.

52. The Beal victims challenged the authenticity of these instruments which show a

material fact in dispute. The United States Supreme Court in Robert R. Tolan v.

Jeffrey Wayne Cotton, 572 U. S. ____ (2014) (per curiam) held that a judges

function at summary judgment is not to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U. S. at 249. Summary judgment is appropriate only if the

movant shows that there is no genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. Rule Civ. Proc. 56(a). In making that

determination, a court must view the evidence in the light most favorable to the

opposing party. Adickes v. S. H. Kress & Co., 398 U. S. 144, 157 (1970); see also

Anderson, supra, at 255.

53. Considering how many times this Supreme Court has had to remind district court

judges about when summary judgments are appropriate and the fact that the Beal

victims cases demonstrate that far too many judges continue to ignore these frequent

reminders, it is time for a determination about the constitutionality of summary

judgments in cases where life, liberty and property are at stake; and whether it is

constitutional not to provide free counsel when the victim cannot afford one in such

civil cases.

37
54. Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States

Supreme Court history; the Supreme Court unanimously ruled that states are required

under the Fourteenth Amendment to the U.S. Constitution to provide counsel in

criminal cases to represent defendants who are unable to afford to pay their own

attorneys. The case extended the right to counsel, which had been found under the

Fifth and Sixth Amendments to impose such requirements on the federal government.

The Supreme Court in Gideon further stated:

This same principle was recognized, explained, and applied in Powell v.


Alabama, 287 U. S. 45 (1932), a case upholding the right of counsel, where the
Court held that despite sweeping language to the contrary in Hurtado v.
California, 110 U. S. 516 (1884), the Fourteenth Amendment embraced those
fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions, even though they had been specifically dealt
with in another part of the federal Constitution. 287 U. S., at 67...

Ten years before Betts v. Brady, this Court, after full consideration of all the
historical data examined in Betts, had unequivocally declared that the right to
the aid of counsel is of this fundamental character. Powell v. Alabama, 287 U.
S. 45, 68 (1932). While the Court at the close of its Powell opinion did by its
language, as this Court frequently does, limit its holding to the particular facts
and circumstances of that case, its conclusions about the fundamental nature of
the right to counsel are unmistakable. Several years later, in 1936, the Court
reemphasized what it had said about the fundamental nature of the right to
counsel in this language:

We concluded that certain fundamental rights, safeguarded by the first


eight amendments against federal action, were also safeguarded against
38
state action by the due process of law clause of the Fourteenth
Amendment, and among them the fundamental right of the accused to the
aid of counsel in a criminal prosecution. Grosjean v. American Press
Co., 297 U. S. 233, 243-244 (1936).

And again in 1938 this Court said:

[The assistance of counsel] is one of the safeguards of the Sixth


Amendment deemed necessary to insure fundamental human rights of
life and liberty.. . . The Sixth Amendment stands as a constant
admonition that if the constitutional safeguards it provides be lost, justice
will not still be done. Johnson v. Zerbst, 304 U. S. 458, 462 (1938).
To the same effect, see Avery v. Alabama, 308 U. S. 444 (1940), and
Smith v. O'Grady, 312 U. S. 329 (1941).

In light of these and many other prior decisions of this Court, it is not
surprising that the Betts Court, when faced with the contention that one
charged with crime, who is unable to obtain counsel, must be furnished counsel
by the State, conceded that [e]xpressions in the opinions of this court lend
color to the argument . . . . 316 U. S., at 462-463. The fact is that in deciding
as it did that appointment of counsel is not a fundamental right, essential to
a fair trialthe Court in Betts v. Brady made an abrupt break with its own
well-considered precedents. In returning to these old precedents, sounder we
believe than the new, we but restore constitutional principles established to
achieve a fair system of justice. Not only these precedents but also reason and
reflection require us to recognize that in our adversary system of criminal
justice, any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him. This seems to us to be an
obvious truth. Governments, both state and federal, quite properly spend vast
sums of money to establish machinery to try defendants accused of crime.
39
Lawyers to prosecute are everywhere deemed essential to protect the public's
interest in an orderly society. Similarly, there are few defendants charged with
crime, few indeed, who fail to hire the best lawyers they can get to prepare and
present their defenses. That government hires lawyers to prosecute and
defendants who have the money hire lawyers to defend are the strongest
indications of the widespread belief that lawyers in criminal courts are
necessities, not luxuries.

55. Criminal cases are no more adversarial than civil cases, specifically foreclosure

related cases that result in a deprivation of life, liberty or property. D. Andrew Beal,

the sole director and owner of LNV Corporation, has at his disposal $11.8 billion

according to Forbes and as much as $19.7 billion according to insider information not

publically available. By way of contrast Iowas 2016 budget is $8.4 billion; Alaskas

2017 budget is $7.2 billion; Delawares is $4.1 billion; Kansas is $15.9 billion;

Mississippis is $6.4 billion; New Hampshires is $5.7 billion; Oklahomas is $6.8

billion; South Dakotas 2 is $4.5 billion; Vermonts is $5.8 billion; and Rhode

Islands is $8.9 billion. (https://en.wikipedia.org/wiki/List_of_U.S._state_budgets)

56. Property rights are a cornerstone of our United States Constitution; hence the clause

life, liberty and property in the due process clause of the Fifth and Fourteenth

Amendments. The taking of a citizens home without due process through the use of

criminal fraud that goes unpunished has a profound impact on the lives and emotional

wellbeing of victims of that fraud. Finances are ruined which affects credit which

negatively affects personal liberty. Loss of employment and homelessness often

40
result from a fraudulent foreclosure. Families are often torn apart. Excessive long

term stress and emotional duress has horrific health consequences causing a loss of

life quality and sometimes life itself.

57. Andy Beal has as much financial clout to wield against Petitioners and his other

victims as many state governments have to wield against those accused of a crime.

58.

59. One of the most unconscionable examples of how Andy Beal operates and the

intentional harm he inflicts on his victims is what he has done to the Breitlings.

The Breitlings

60. . JoAnn, a disabled senior, and her husband Samuel who is a military veteran and a

retired police officer who served the city of Dallas for 33 years, their Down syndrome

son who has a rare autoimmune disease and requires constant care, one of their

daughters, Annie and her five children ranging in age from 8 to 19 were illegally

evicted from thier home of 35 years by D. Andrew Andy Beals on February 2,

2017.

61. Andy Beal pitted more than a dozen powerful attorneys against a senior citizen

grandmother with no legal education. Every hearing is attended by a troop of

attorneys including Beal employee Robert Ari Ackerman (CA Bar #: 155570, TX Bar

#: 24099455); Luke Madole (TX Bar #: 12801800); Samir Pyarali 'Sammy' Hooda

41
(TX Bar #: 24064032); Jason Levi Sanders (TX Bar #: 24037428) Marc Daniel

Cabrera (TX Bar #: 24069453). Additional attorneys enrolled in the federal case he

removed improperly the second time are: Thomas F. Loose (TX Bar #: 12561500);

Bryan Gerald Rutherford (TX Bar #: 24025628); Robert Thompson Mowrey (TX Bar

#: 14607500); Clayton E. Devin (TX Bar #: 05787700); and Jeffrey Scott Levinger

(TX Bar #: 12258300). Many of these attorneys work for the large international law

firm Locke Lord LLP. Behind the scenes are many more attorneys, the most renown

being Harriet Ellan Miers (TX Bar #: 00000067) a senior partner with Locke Lord

and former private counsel for former President George W. Bush who nominated her

for the Supreme Court of the United States in Her role in all this speaks volumes

about Andy Beals political clout in Dallas.

62. https://en.wikipedia.org/wiki/Harriet_Miers_Supreme_Court_nomination:

On October 3, 2005, Harriet Miers was nominated for Associate Justice of


the U.S. Supreme Court by President George W. Bush to replace retiring
Associate Justice Sandra Day O'Connor. Miers was, at the time, White House
Counsel, and had previously served in several roles both during Bush's tenure
as Governor of Texas and President. The nomination almost immediately
drew criticism, virtually all of it from within the President's own party: David
Frum castigated an unforced error and Robert Bork denounced it a
disaster and a slap in the face to the conservatives whove been building
up a conservative legal movement for the last 20 years. Hearings before the
United States Senate Judiciary Committee had been scheduled to begin on
November 7, and members of the Republican leadership had stated before the

42
nomination that they aimed to have the nominee confirmed before
Thanksgiving (November 24). Miers withdrew her nomination on October 27,
2005, and Bush nominated Samuel Alito four days later.

In JoAnns own voice

63. Harriet Miers legal career has been riddled with ethics issues; See Appendix 7. Her

direct connection to our case in addition to her senior position with Locke Lord the

law firm the representing LNV aka Andy Beal against us is her familial relationship

with Texas Fifth Court of Appeals Justice Elizabeth Lang-Miers who is her sister-in-

law. Both women share a long-term intimate personal friendship with soul sister

federal Judge Jane Boyle.

64. Justice Lang-Miers was on the appeals panel that on July 5, 2016 issued an order that

upheld the Texas County Court of Law No. 3 ruling to grant LNV a writ of possession

to our home of 35 years. LNVs only claim to superior right of possession was a void

as a matter of law pursuant to Texas Rule Civ. P. 736.11(d) non-judicial foreclosure

sale and a resulting void in ab initio trustee deed. Additionally according to Tex. Law

and precedence the County Court lacked jurisdiction to evict us.

65. We had filed a letter on with the Fifth Court of Appeals specifically requesting an

unbiased panel. See Appendix 8. In this letter we state:

We have been harmed what appears to a:rw objective person to be the


improper influence of Judges Gerry Cooper and Sally Montgomery in
matter now before this Honorable Court of Appeals, so naturally we are

43
concerned about the impartiality of Justices formerly employed by law firms
known to regularly represent D. Andrew Beal and his Beal corporate
entities. Some of these law firms are:
Vincent, Lopez, Serafino, Jenevein P.C.
Codilis & Stawiarski &1\d other LPS affiliated law firms
Locke Lord LLP
Hunton & Williams LLP
Jenkins Gilchrist PC

66. Imagine our horror when we discovered that Justice Lang-Miers enjoyed a 28 year

career with Locke Lord before being appointed to Texas Fifth Court of Appeals in

2003 by then Governor Rick Perry who has now been appointed by Donald Trump to

the position of Energy Secretary. Rick Perrys political career is also riddled with

corruption and ethic violations. We also discovered Justice Lang-Miers was the

sister-in-law of Harriet Miers a senior partner at Locke Lord the firm representing

LNV aka Andy Beal in our federal case with a financial motive to undermine our due

process in favor of her client. Justice Lang-Miers brother is a senior Justice of the

Fifth Court of Appeals deepening the unconstitutional impact of undue influence from

familial ties on the outcome of our case. Since both Justice Lang-Miers and Harriet

Miers have shared a close personal friendship for more than three decades with

Federal Judge Jane Boyle. (This is all documented in court records) We realized

Andy Beal and his co-conspirators had set us up for a derivation of our constitutional

rights under color of law in the federal court.

44
67. This explained why Judge Boyle had not immediately remanded our state when LNV

removed it solely on federal question jurisdiction for a SECOND time on March 3,

2015 in direct violation of the explicit language of 28 U.S. Code 1446(b)(1).

68. The plan all along was for Harriett Miers dear friend federal Judge Jane Boyle to

dismiss our case with prejudice so Harriett could make her ever so powerful and

important client, Andy Beal happy so hell give her a big payoff

69. Unless you live in Dallas you would not know just how much political clout Andy

Beal has; or how powerful he is; or how much he uses his wealth to influence and

intimidate officials to either do his bidding or to conceal his activities.

45
REASONS FOR GRANTING THE PETITION

70. Statistical data from a 2011 article titled: Civil Legal Aid by the Numbers by David

Liu published by the Center for American Progress

(https://www.americanprogress.org/issues/general/news/2011/08/09/10080/civil-

legal-aid-by-the-numbers/) states:

The number of low- and moderate-income litigants representing themselves in


civil legal matters has increased in recent decades. And there remains a
significant gap between these individuals legal needs and the civil legal
assistance systems ability to fulfill themthe justice gap.
Self-representation, or pro se, features prominently in a wide range of civil legal
cases, including but not limited to domestic violence, foreclosures, landlord-
tenant disputes, bankruptcy, and consumer issues. Pro se litigants face many
challenges in their quest to reach fair resolutions to civil disputes.
The following statistics illustrate the increase in self-representation over the last
several decades and the need for additional funding for civil legal aid programs
to ensure efficient, effective delivery of legal services to those who need them.
Inequities in civil legal assistance
$284: The average hourly billing rate for attorneys in the United States.
1-to-6,415: The ratio of free legal services attorneys available to the number of
low-income Americans who need one.
$15.8 million: The amount of money cut from the Legal Services Corporations fiscal
year 2011 budget, reducing funds for civil legal aid to low-income
Americans. The LSC is a private nonprofit corporation funded by
Congress to provide grants to civil legal aid programs.
The growth of self-representation
88%: The percentage of domestic relations cases involving self-represented
litigants in Arizona in 1991, an increase from 47 percent in 1985 and
24 percent in 1980. These data are based on the first comprehensive
study of self-represented litigants performed by Bruce Sales, Connie
Beck, and Richard Haan in 1991, and they indicate trends in other
parts of the country.

46
> 60%: The number of legal needs involving housing, personal, or economic injuries
that were either ignored or addressed outside the legal system, based
on the 1994 Legal Needs Study commissioned by the American Bar
Association.
57%: The number of litigants that chose to represent themselves because they could
not afford a lawyer, based on a 1996 nationwide study conducted by
the University of Maryland Law School.
78%: The number of self-represented litigants who explained their choice based on
the belief that it takes too long for the courts to do the job, based on
a 1998 ABA study. Free legal services providers often help individuals
avoid unnecessarily long court processes by advising them if they have
legitimate cases and/or helping them to resolve their disputes without
going to court.
65%: The number of pro se litigants in Florida district courts reporting in 2002 that
the costs of hiring legal assistance were prohibitive.
50%: The number of pro se litigants in Utah district courts reporting in 2002 that
the costs of hiring legal assistance were prohibitive.
60%: The number of judges in a 2009 nationwide study who reported an increase in
cases with self-represented litigants as a result of the recent economic
crisis.
The justice gap
63 million: The number of low-income Americans qualifying for free legal help in
2010. One-third of these are children.
71%: The percentage of legal needs of low-income households that are not met
by the court system. The figure is also high for moderate-income
households at 61 percent.
< 20%: The number of low-income Americans legal needs that are being met
according to a 2009 study conducted by the LSC.
90%: The number of litigants in numerous high-volume city courts who dont have
access to a lawyer.
The state of civil legal assistance
136: The current number of nonprofit civil legal aid programs funded by the
LSC out of a total of approximately 500 independent, staff-based
service providers.
1 million: The approximate number of cases closed by LSC-funded civil legal aid
programs in 2010, affecting nearly 2.3 million people.

47
$104 million: The additional reduction to the LSCs fiscal year 2012 budget proposed
by the House Appropriations Committee in July 2011, a scenario that
would roll back LSC funding to its lowest level in 12 years.
235,000: The estimated number of low-income Americans eligible for civil legal
assistance at LSC-funded programs that would be turned away if the
Appropriations Committees proposal were enacted.

71. By failing to provide adequate funding for legal aid services to meet public need state

and the federal governments have played a direct role in the proliferation of predators

that prey on homeowners including those who, like D. Andrew Beal, resort to

criminal activities in foreclosures because they know homeowners like Petitioners

are, quite literally, defenseless prey; and their properties are ripe for the taking

through the use of forgery and fraud. D. Andrew Beal has said no judge has ever

told him he cant.

72. The result is government sanctioned unconstitutional derivation of life, liberty and

property without due process and without equal protection of the law by judges who

routinely grant foreclosing parties favorable summary judgments without giving pro

se homeowners any opportunity to be heard; let alone a fair opportunity to be heard.

RESPECTED COMMENTATORS AND JUDGES CRITICIZE SUMMARY


JUDGMENTS AS BEING UNCONSTITUTIONAL
73. Professor Thomas argues that summary judgment is unconstitutional because it did

not exist at common law and violates the historical test set forth textually in the

Seventh Amendment. See Suja A. Thomas, Summary Judgment is Unconstitutional,

93 VA.L.REV.139, 139 (2007) (arguing that summary judgment conflicts with the
48
common law axiom that the jury decides the facts); Suja A. Thomas, Why Summary

Judgment is Still Unconstitutional: A Reply to Professors Brunet and Nelson, 93

IOWA L.REV. 1667, 1667 (2008) (attacking articles seeking to defend the

constitutionality of summary judgment). In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury shall be

preserved U.S. CONST. Amend. VII.

74. Judge Patricia Wald worries that trial judges are too quick to grant summary judgment

and that Federal Rule 56 of Civil Procedure has assumed a much larger role in civil

case dispositions than its traditional image portrays to the point where fundamental

judgments about the value of trials and especially trials by jury may be at stake.

Patricia Wald, Summary Judgment at Sixty, 76 TEXAS L. REV. 1897, 1898 (1998).

Accord, Richard L. Steagall, The Recent Explosion in Summary Judgments Entered

by the Federal Courts Has Eliminated the Jury From Political Power, 33

S.ILL.L.REV. 469, 496-99 (2009) (setting forth a litany of problems caused by

overuse of summary judgment).

75. Professor Stephen Burbank describes the original 1938 Federal Rule 56 as a radical

transformation of earlier versions of a much more confined procedure. Stephen

Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting

Toward Bethlehem or Gomorrah?, 1 J.EMP. LEG. STUD. 591, 591 (2004).

49
76. Professor Schneider concludes that courts grant a disproportionate number of

defendants summary judgment requests in cases raising gender discrimination. See

Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal

Civil Litigation, 59 RUTGERS L.REV. 705, 760 (2008). See also, Elizabeth M.

Scheider, The Changing Shape of Federal Pretrial Practice: The Disparate Impact on

Civil Rights and Employment Discrimination Cases, 158 U.PA.L.REV. 517 (2010).

77. Professor John Bronsteen delivered the ultimate criticism by strongly urging that

summary judgment be eliminated and defending this revolutionary suggestion by

asserting that the progress and settlement of civil litigation would be relatively

unchanged by his proposal. See John Bronsteen, Against Summary Judgment, 75

GEO.WASH.L.REV.522 (2007).

78. District Judge of the United States District Court for the District of Maine, D. Brock

Hornby writes in Summary Judgment Without Illusions writes:

Summary judgment motions change litigation stakes.17 By filing them,


defendants delay recovery and increase Defendant legal expenses (or
Defendant lawyers expenses in contingent fee cases).18 They also increase
Defendant risk because, if Defendant lose, all is over except an expensive,
delayed, and uncertain appeal. Therefore, Defendant case values decrease
for settlement purposes.19
17 This paragraph draws unabashedly on Samuel Issacharoff & George Lowenstein,
Second Thoughts About Summ. J., 100 YALE L.J. 73 (1990). Another change: at
trials, plaintiffs go first and last (direct case and rebuttal); at summary judgment,
defendants go first and last (motion and reply). Plaintiffs lawyers are certain this
shift is harmful.
50
18 I treat defendants motions far more common than plaintiffs motions, Cecil, A
Quarter-Century of Summ. J., supra note 10, at 886 (2,526 defendants motions
versus 967 plaintiffs motions in six districts, 1975 to 2000) as the norm.
19 See Vivian Berger, Michael Finkelstein & Kenneth Cheung, Summ. J. Benchmarks
for Settling Employment Discrim. Lawsuits, 23 HOFSTRA LAB. & EMP. L.J. 45,
55-67 (2005) (assessing likelihood of denial in certain districts). (See page 7)

79. The change in litigation stakes described by Judge D. Brock Hornby has created a no-

win situation for homeowners litigating to protect their property interest from

foreclosure actions intended to deprive them of their property; and especially where

the parties foreclosing have no valid standing and are using forged documents.

Homeowner victims of this fraud have been fighting the fraud for years because

judges never order forensic examination for authenticity despite obvious signs of

forgery, electronic alterations, and false claims. Pro se homeowner litigants evidence

too often falls on deaf judicial ears.

INTEREST OF THE GENERAL PUBLIC

80. Public interest lays in the assurance of an open, fair and impartial judiciary; and in

fair and just laws that are implemented and enforced through equally administered

procedures, public policies and public services that are consistent with the

constitutional guarantees of the Oregon and the United States Constitutions.

81. Paragraph three of Article VI of the United States Constitution states:

The Senators and Representatives before mentioned, and the members of the

several state legislatures, and all executive and judicial officers, both of the

51
United States and of the several states, shall be bound by oath or affirmation,

to support this Constitution;

82. Citizens of the United States expect federal judges as well as their state judges to

make their prescribed oath of office and to take that oath of office seriously. The

public trust in our judiciary erodes whenever the appearance of judicial bias goes

unchecked and uncorrected, and whenever actual judicial bias goes unpunished.

83. On June 20, 2011, the United States Supreme Court issued a groundbreaking opinion

in Turner v. Rogers (2011) about the due-process rights of the self-represented and

what courts must do to ensure that they are given true access to justice. In the South

Carolina Supreme Court, a child support obligor sought reversal of his civil-

contempt-incarceration order on the grounds that he had lacked counsel. (The party

seeking the incarceration order was not the state and also did not have counsel.) After

South Carolina had rejected the claim, certiorari was granted The solicitor general

urged that although there was no categorical right to counsel in such cases, the failure

of the trial court to follow available alternative procedures that would have protected

the litigants due-process rights required reversal. The Supreme Court agreed:

And we consequently determine the specific dictates of due process by


examining the distinct factors that this Court has previously found useful in
deciding what specific safeguards the Constitutions Due Process Clause
requires in order to make a civil proceeding fundamentally fair. Mathews v.
Eldridge, 424 U. S. 319, 335 (1976) (considering fairness of an administrative

52
proceeding). As relevant here those factors include (1) the nature of the
private interest that will be affected, (2) the comparative risk of an
erroneous deprivation of that interest with and without additional or
substitute procedural safeguards, and (3) the nature and magnitude of any
countervailing interest in not providing additional or substitute procedural
requirement[s]. . . .

More recently in Williams v. Pennsylvania, U.S. Supreme Court, No. 15-5040


filed on June 9, 2016 the United States Supreme Court addressed the
constitutional requirements for judicial impartiality and appearance of judicial
impartiality:

Held:
1. Chief Justice Castilles denial of the recusal motion and his subsequent judicial
participation violated the Due Process Clause of the Fourteenth Amendment....The Court
applies an objective standard that requires recusal when the likelihood of bias on the part
of the judge is too high to be constitutionally tolerable. Caperton v. A. T. Massey Coal
Co., 556 U. S. 868, 872.
2. An unconstitutional failure to recuse constitutes structural error that is not amenable to
harmless-error review, regardless of whether the judges vote was dispositive, Puckett v.
United States, 556 U. S. 129, 141....A multimember court must not have its guarantee of
neutrality undermined, for the appearance of bias demeans the reputation and integrity not
just of one jurist, but of the larger institution of which he or she is a part. Because Chief
Justice Castilles participation in Williamss case was an error that affected the State
Supreme Courts whole adjudicatory framework below, Williams must be granted an
opportunity to present his claims to a court unburdened by any possible temptation . . . not
to hold the balance nice, clear and true between the State and the accused, Tumey v. Ohio,
273 U. S. 510, 532. Pp. 1214.
__ Pa. __, 105 A. 3d 1234, vacated and remanded.

53
CONCLUSION

This is a constitutional matter of great importance to our country. The petition for a writ

of certiorari should be granted.

Respectfully submitted,

____________________________________
JoAnn Breitling

____________________________________
Denise Subramaniam

Representatives for All Petitioners

We ran out of time to get everyone signature because Andy Beal has us scrabbling to meet
several serious deadlines. Our greatest concern was Robynne Fauley whose home is
scheduled for Sheriffs sale and she was supposed to have cancer surgery. We have been
unable to get a stay to protect her this is life threatening. Is there no compassion in the
word anymore?

54
APPENDIX 1
DENY; and Opinion Filed January 30, 2017.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00043-CV

IN RE SAMUEL G. BREITLING & JOANN BREITLING, Relators

Original Proceeding from the 134th Judicial District Court


Dallas County, Texas
Trial Court Cause No. DC-14-04053

MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Schenck
Opinion by Justice Schenck
On the Courts own motion, we withdraw our January 25, 2017 opinion and order

denying relators January 18, 2017 first amended petition for writ of mandamus and substitute

the following opinion and order in their place. This is now the opinion of the Court.

Before the Court is relators January 18, 2017 first amended petition for writ of

mandamus. In this original proceeding, relators ask the Court to grant a writ and direct the

district court to sign an order vacating an August 4, 2014 foreclosure order and vacating the

September 2, 2014 foreclosure sale.

Background

After relators defaulted on a home equity loan, real party in interest LNV Corporation

filed its Original Petition for Foreclosure in the 134th judicial district court of Dallas County,

cause number DC-14-04053, seeking an order permitting a non-judicial foreclosure sale of the

property. On August 4, 2014, the district court signed a Final Judgment In Rem Only With
Home Equity Foreclosure Order that allowed LNV to proceed with foreclosure on the property.

On August 29, 2014, relators filed a separate action pursuant to Rule 736.11(a), which was

docketed as DC-14-09604 in the 101st judicial district court of Dallas County. Relators notified

LNV that the Rule 736.11 action had been filed and told LNV that an automatic stay of the

August 4, 2014 judgment was in effect.

LNV proceeded with the foreclosure sale on September 2, 2014. When relators refused

to leave the property, LNV filed a forcible entry and detainer action in justice court and obtained

a judgment of possession. Relators appealed to the county court and lost. Relators then appealed

the county court judgment to this Court, and we affirmed the judgment. Breitling v. LNV Corp.,

05-15-00677-CV, 2016 WL 3625450 (Tex. App.Dallas July 5, 2016, pet. dismd w.o.j.). The

Texas Supreme Court dismissed relators petition and denied their motion for rehearing.

On January 3, 2017, after this Court issued mandate in the appeal of the FED action,

relators filed a motion in the original district court case (DC-14-04053 in the 134th district court)

asking the judge to reopen the case and vacate the August 4, 2014 foreclosure order and

foreclosure sale. Relators argued that the separate lawsuit they filed on August 29, 2014

pursuant to Rule 736.11(a) stayed the August 4, 2014 foreclosure order and the subsequent

foreclosure sale violated the stay and is, therefore, void. The district court denied relators

motion for want of jurisdiction and also noted that the motion should be denied because relators

did not timely file a Rule 736.11(c) motion and were, therefore, not entitled to an order vacating

the foreclosure order. Relators now seek review of that order and maintain that the district court

was required to grant their January 3, 2017 motion and vacate the August 4, 2014 foreclosure

order and subsequent foreclosure sale.

2
Applicable Law

Under Rule 736.11, an expedited foreclosure order is automatically stayed if the

respondent files an independent lawsuit contesting the lenders right to foreclose:

A proceeding or order under this rule is automatically stayed if a respondent files


a separate, original proceeding in a court of competent jurisdiction that puts in
issue any matter related to the origination, servicing, or enforcement of the loan
agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the
Monday before the scheduled foreclosure sale.

TEX. R. CIV. P. 736.11(a). The trial court that issued the expedited foreclosure order is required

to vacate the expedited foreclosure order only if the respondent files a motion and proposed

order to vacate in that court within ten days of filing the separate suit. TEX. R. CIV. P. 736.11(c);

In re Bettie Priester and John Priester, Jr., No. 05-16-00965-CV, 2016 WL 7010583 (Tex.

App.Dallas Nov. 21, 2016, orig. proceeding) (mem. op.) (Rule 736.11(c) creates a mandatory

duty to vacate the Rule 736 order only if the respondent meets the requirements of rule 736.11(c)

by timely-filing both the Rule 736.11(a) independent action and the Rule 736.11(c) motion to

vacate); see also Murphy v. HSBC Bank USA, 95 F. Supp. 3d 1025, 1028 (S.D. Tex. 2015)

(holding that Rule 736.11(c) requires the clerk to vacate the Rule 736 order if the respondent

timely files a motion under Rule 736.11(c)).

Analysis

The August 4, 2014 Final Judgment states that LNV may proceed with foreclosure of

the secured Property according to the terms of the security instrument, Tex. Prop. Code 51.002,

and applicable Texas law. We make no findings here regarding whether that judgment

constituted an expedited foreclosure order under Rule 736, whether Rule 736.11 applies here, or

whether relators invoked any protections by filing the Rule 736.11(a) action. But even assuming

the applicability of Rule 736, relators have not established that the trial court abused its

3
discretion in denying their January 3, 2017 motion to vacate that judgment. Relators failure to

timely file a Rule 736.11(c) motion in the original cause number is fatal to their arguments.

Relators filed a Motion to Vacate Void Foreclosure Judgment in the 134th district court

cause number DC-14-04053 on August 18, 2014, and filed a Motion to Vacate Foreclosure

Order and Void the Sale on September 10, 2014 in the new proceeding, cause number DC-14-

09604. Neither motion met the requirements of Rule 736.11(c). Neither motion mentions Rule

736 or otherwise notifies the court that relators have filed the independent lawsuit contesting the

right to foreclose. The August 18, 2014 motion was filed before relators filed the independent

lawsuit. As for the September 10, 2014 motion, it was not filed within ten days of filing the

independent lawsuit, and it was filed in the 101st district court under the independent lawsuits

cause number rather than in the court that had issued the expedited foreclosure order as required

by Rule 736.11(c). Because the motions did not meet the requirements of Rule 736.11(c),

neither motion required either district court to vacate the August 4, 2014 judgment. Absent a

timely-filed Rule 736.11(c) motion in the original cause number, the 134th judicial district court

had no duty to vacate the August 4, 2014 final judgment or the foreclosure sale and did not abuse

its discretion by denying the untimely motion filed more than two years after the sale. See, e.g.,

In re Priester, 2016 WL 7010583, at *3; see also Murphy, 95 F. Supp. 3d at 1028.

Relators contention that Rule 736.11(d) required the district court to vacate the August

4, 2014 judgment and the foreclosure sale is also unavailing. Rule 736.11(d) places no

requirements on the district court and requires no action by the district court. Rather, Rule

736.11(d) states that a foreclosure sale that occurs when a Rule 736.11(a) automatic stay is in

effect is void and, upon proper and timely notice, the trustee must return to the buyer of the

foreclosed property the purchase price paid by the buyer. TEX. R. CIV. P. 736.11(d). Relators

did not ask the district court to order the trustee to return the purchase price and did not provide

4
the court with argument or authority supporting their contention that the district court was

required to vacate a foreclosure sale that occurred more than two years earlier. The district court

did not abuse its discretion by denying relators request to vacate the judgment and foreclosure

sale pursuant to rule 736.11(d).

Finally, the foreclosure has already occurred. Relators wrongful foreclosure action,

which was filed in the 101st judicial district court and is currently pending in federal court,

provides relators an adequate remedy at law. See Pinnacle Premier Props., Inc. v. Breton, 447

S.W.3d 558, 565 (Tex. App.Houston [14th Dist.] 2014, no pet.) (wrongful foreclosure action

provides adequate remedy at law).

To be entitled to mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,

148 S.W.3d 124, 13536 (Tex. 2004) (orig. proceeding). Based on the record before us, we

conclude relators have not shown they are entitled to the relief requested. See TEX. R. APP. P.

52.8(a); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

Accordingly, we deny relators January 18, 2017 first amended petition for writ of mandamus.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

170043F.P05

5
APPENDIX 2
Order entered January 30, 2017

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00043-CV

IN RE SAMUEL G. BREITLING & JOANN BREITLING, Relators

Original Proceeding from the 134th Judicial District Court


Dallas County, Texas
Trial Court Cause No. DC-14-04053

ORDER
Before Justices Bridges, Fillmore, and Schenck

Based on the Courts opinion of this date, we DENY relators January 18, 2017 first

amended petition for writ of mandamus. We ORDER relators to bear the costs, if any, of this

original proceeding.

/s/ DAVID J. SCHENCK


JUSTICE
APPENDIX 3
Order entered January 26, 2017

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00677-CV

SAMUEL G. BREITLING AND JOANN S. BREITLING, Appellant

V.

LNV CORPORATION, Appellee

On Appeal from the County Court at Law No. 3


Dallas County, Texas
Trial Court Cause No. CC-15-00911-C

ORDER
Before the Court is appellants January 25, 2017 motion to recall the mandate or

alternatively to stay lower courts order to execute writ of possession. We DENY the motion.

/s/ ADA BROWN


JUSTICE
APPENDIX 4
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MS. DENISE SUBRAMANIAM


C/O JOANN BREITLING
1704 CORNWALL ST.
SACHSE, TX 75048
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MS. ROBYNNE A. FAULEY


12125 SE LAUGHTING WATER
SANDY, OR 97055
* DELIVERED VIA E-MAIL & POSTAL *
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

JOANN BREITLING
1704 CORNWALL LANE
SACHSE, TX 75048
* DELIVERED VIA E-MAIL & POSTAL *
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MR. JOHN WARREN


DALLAS COUNTY CLERK
509 MAIN STREET SUITE 200
DALLAS, TX 75202
* DELIVERED VIA E-MAIL *
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MR. LUKE MADOLE


BUCKLEY MADOLE, P.C.
14841 DALLAS PKWY., SUITE 425
DALLAS, TX 75254
* DELIVERED VIA E-MAIL *
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MR. SAMIR PYARALI HOODA


BUCKLEY MADOLE, P.C.
14841 DALLAS PKWY., SUITE 425
DALLAS, TX 75254-7883
* DELIVERED VIA E-MAIL *
FILE COPY

RE: Case No. 16-0669 DATE: 12/9/2016


COA #: 05-15-00677-CV TC#: CC-15-00911-C
STYLE: BREITLING v. LNV CORP.

Today the Supreme Court of Texas denied the motion for


rehearing of the above-referenced petition for review.

MS. LISA MATZ


CLERK, FIFTH COURT OF APPEALS
600 COMMERCE, SUITE 200
DALLAS, TX 75202-4658
* DELIVERED VIA E-MAIL *
APPENDIX 5
http://appraisersforum.com/forums/threads/who-is-andy-beal-full-page-wsj-letter.135995/

Who is Andy Beal? Full page WSJ letter


Discussion in 'General Real Estate and Real Estate Finance' started by Elliott, Mar 18, 2008.

I got the text from the Motley Fool....couldn't find the pdf from the
WSJ. Its an advertisement, on page A5 of today's paper. Beal is
a marketing guy. I don't know how much it costs for a one page
'ad', but its at least $90K.

To: Mr. Ben Bernanke

Please DONT PUT GARBAGE in the FEDERAL RESERVE

"Dear Mr. Bernanke:

I was afraid that if simply wrote you this letter you might never see it. I thought this message was important and worthy
of effort to attract your attention.

I am sure that you are hearing from the Wall Street crowd about how stupid the marketplace is because the market
won't buy all the great loans that Wall Street has produced and how stupid or illiquid the market is because AAA RMBS
are being offered at 60 cents on the dollar with no takers. First mortgage synidcated bank loans are offered for 70 cents
on the dollar and Wall Street simply cannot believe buyers aren't standing in line to buy.

Consider for a moment that many corporate bonds are trading at premiums above par value. How can this be? If the
market is so stupid and there is no liquidity, who is buying those good corporate bonds at 105 cents on the dollar??

Many AAA mortgage bonds are actually extremely high risk because of little-considered nuances in the hundreds of
pages of trust indentures and servicing agreements. In addition to widely understood mortgage default and other
concerns, these contracts permit the loan servicers to advance payments on behalf of defaulted homeowners for years
and years and years at interest rates of 12% and more. These "servicer advancements" put funds back into the trust to
be paid out to junior security holders. The "servicer advances" are subsequently repaid FIRST from foreclosed home
sales. Therefore, foreclosed home sales may result in little or no proceeds, or even a liability, to the AAAs. This
mechanism effectively transfers funds that really should belong to the AAA securities to junior securities. Servicers that
own junior securities are incredibly motivated to drag their feet resolving defaulted loans, which results in great loss to
the AAA holders. This is not a misprint: Defaulted first mortgage home loans may become a net liability, not an asset, to
some of the AAAs. This is still not widely understood.

Simlarly, "first mortgage syndicated bank loans" issued since about 2004 are routinely garbage and not traditional first
mortgages on anything determinable at all. Many, if not most, of these loans permit the borrowers to sell the collateral,
keep the money, and reinvest in almost anything they want to, including stock, junk bonds, defaulted loans, or perhaps
ice cream cones. MAny, if not most, of these syndicated bank loans also permit UNLIMITED amounts of additional swap
debt that is either senior to or of equal priority with the syndicated loan. These provisions are also no widely understood
and are sometimes even disguised in the loan documents.
Falling prices for these type assets reflect people finally reading the hundreds of pages of fine print, not a problem
with the marketplace. Prices should continue to fall as people wake up to the true nature of these assets. Mant "last
out" AAA RMBS are still overvalued at 60% of par. Many first mortgage syndicated bank loans are overvalued at 70% of
par. Smart buyers won't touch any of this garbage at any price remotely close to what it originally sold for.

The Fed may be walking on very slippery ground. My fear is that the Fed has little more undersanding of the stench of
the garbage than many of the current owners who bought all these debt instruments issued about 2004.

Is the US Governmenttaking some of this garbage on its balance sheet as collateral for Federal Reserve loans? The AAA
rating means absolutely nothing. Garbage is garbage even in a fancy wrapper that the ratings agencies love.

I do not pretend to know how the Fed is collateralizing loans. Perhaps I am naive in underestimating the insightfulness of
the Feb, but many intelligent people were caught up in complacent decisions involving these assets. I know nothing
more than what I read in the media about collateral for these Fed loans, but it sure sounds troubling.

Sincerely,

Andy Beal
6000 Legacy Drive
Dallas, Texas 75024"

*****************************************

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APPENDIX 6
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 1 of 12 PageID #:307

UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BEAL BANK USA, )


)
Plaintiff, ) 16 C 10729
)
vs. ) Judge Gary Feinerman
)
MARCIA SWIFT and CHRISTOPHER SWIFT, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Beal Bank USA brought this suit against Marcia and Christopher Swift to recover

payments due on a mortgage note. Several months earlier, Beal brought a state court action

against the Swifts to foreclose on the property subject to the mortgage and to recover a personal

deficiency judgment. See Beal Bank USA v. Swift, Case 2016 CH 593 (Cir. Ct. Kane Cnty., Ill.

filed June 10, 2016) (state court complaint reproduced at Doc. 7-1). The Swifts have moved to

dismiss or stay this case under the doctrine set forth in Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976), pending resolution of the state court action. The

motion is granted.

Background

In 2011, an affiliate of Beal brought a foreclosure action on the Swifts property in state

court. See LNV Corp. v. Swift, Case 2011 CH 2069 (Cir. Ct. Kane Cnty., Ill. filed June 2, 2011)

(state court complaint reproduced at Doc. 7-2). That action was dismissed without prejudice in

January 2016. Doc. 7-3 at 20.

In June 2016, Beal filed a foreclosure action in state court against the same property.

Doc. 7-1. The complaint alleged that the Swifts failed to pay what they owed under the note

1
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 2 of 12 PageID #:308

secured by the mortgage, resulting in a debt of $449,500.00 plus interest and other charges. Id.

at 3 3J. The complaint sought to foreclose on the property and also to collect a personal

deficiency judgment against the Swifts for the total amount owed. Id. at 4 3M, 5.

In November 2016, Beal filed the present suit in this court. Doc. 1. The complaint

alleges that the Swifts failed to make payments due on the mortgage note, resulting in their

owing $449,500.00 plus interest. Id. at 8, 11. As relief, Beal seeks a monetary judgment of

$449,500 plus interest and other charges. Id. at 3.

The Swifts have moved this court to abstain in light of the pendency of the state court

action. Doc. 7. At the presentment hearing, Beal suggested that the cases were not parallel

under Colorado River because the state court action was an in rem action against the property,

while this suit is an in personam action against the Swifts. When the court pointed out to Beals

counsel (who does not represent Beal in state court) that the state court complaint actually sought

a personal deficiency judgment against the Swifts, counsel said we will discuss that and thanks

for bringing that to our attention. Beal then successfully moved to amend its state court

complaint to remove its request for a personal deficiency judgment. Doc. 15-1 at 3; Doc 19-4.

Discussion

The Colorado River doctrine provides that a federal court may stay or dismiss a suit in

federal court when a concurrent state court case is underway, but only under exceptional

circumstances and if it would promote wise judicial administration. Freed v. J.P. Morgan

Chase Bank, N.A., 756 F.3d 1013, 1018 (quoting Colorado River, 424 U.S. at 818); see also

Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700 (7th Cir. 1992). The

Supreme Court has cautioned that abstention is appropriate only in exceptional circumstances,

and has also emphasized that federal courts have a virtually unflagging obligation to exercise

2
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 3 of 12 PageID #:309

the jurisdiction given them. AXA Corporate Solutions v. Underwriters Reins. Corp., 347 F.3d

272, 278 (7th Cir. 2003) (alteration in original) (quoting Colorado River, 424 U.S. at 813, 817)

(citation omitted). In determining whether to abstain, the courts task is not to find some

substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to

ascertain whether there exist exceptional circumstances, the clearest of justifications, that can

suffice under Colorado River to justify the surrender of that jurisdiction. Moses H. Cone Meml

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26 (1983) (internal quotation marks and

emphases omitted).

The Colorado River analysis has two steps. First, the court asks whether the state and

federal court actions are parallel. Freed, 756 F.3d at 1018; see also Caminiti, 962 F.2d at 700.

If the proceedings are not parallel, Colorado River abstention must be denied. Freed, 756 F.3d

at 1018. If the proceedings are parallel, the court then must weigh ten non-exclusive factors to

determine whether abstention is proper. Ibid.

I. Whether the Federal and State Cases Are Parallel

State and federal suits need not be identical to be parallel. See Adkins v. VIM Recycling,

Inc., 644 F.3d 483, 498-99 (7th Cir. 2011) ([F]or Colorado River purposes [p]recisely formal

symmetry is unnecessary.); Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1288

(7th Cir. 1988) (Interstate is correct in its assertion that differences exist. However, the

requirement is of parallel suits, not identical suits.). Rather, suits are parallel when

substantially the same parties are contemporaneously litigating substantially the same issues in

another forum. Freed, 756 F.3d at 1019. The question is not whether the suits are formally

symmetrical, but whether there is a substantial likelihood that the [state] litigation will dispose of

all claims presented in the federal case. AAR Intl, Inc. v. Nimelias Enters. S.A., 250 F.3d 510,

3
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 4 of 12 PageID #:310

518 (7th Cir. 2001) (internal quotation marks omitted); see also Huon v. Johnson & Bell, Ltd.,

657 F.3d 641, 646 (7th Cir. 2011) (same). Any doubt regarding the parallel nature of the [state]

suit should be resolved in favor of exercising jurisdiction. Adkins, 644 F.3d at 499 (alteration in

original) (internal quotation marks omitted).

Here, there is no dispute that the parties in the state and federal cases are the same.

Beals argument against parallelism submits that the cases advance different claims and

remedies: an in personam claim for a monetary judgment against the Swifts in the federal case,

and an in rem claim for foreclosure against the property in the state case. Doc. 19 at 5-6. Beals

position fails for two independent reasons.

First, a party opposing abstention may not unilaterally manufacture non-parallelism. In

state court, Beal initially sought a foreclosure against the property and a deficiency judgment

against the Swifts. The complaint in this court was redundant, seeking a contract judgment

against the Swifts on the note. True, a deficiency judgment against the mortgagor in a

foreclosure action can occur only after a foreclosure salewith the deficiency judgment being

the difference between the amount owed and the amount for which the property is sold, see 735

ILCS 5/15-1508(e); 735 ILCS 5/15-1508(b)(2)while a contract claim on the note need not

await a foreclosure sale. See LP XXVI, LLC v. Goldstein, 811 N.E.2d 286, 290 (Ill. App. 2004)

(These remedies may be pursued consecutively or concurrently.). That distinction, however, is

immaterial. A contract action on the note achieves the same ultimate remedy as a foreclosure

suit yielding a foreclosure sale followed by a deficiency judgmentthe bank recovers the

amount owed on the noteand both actions ultimately turn on the same questionwhether the

mortgagors defaulted on the note. So, as it originally stood, the state court action was parallel

with the federal suit. See Freed, 756 F.3d at 1021 (In short, the claims in both federal cases are

4
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 5 of 12 PageID #:311

premised upon the scheme that is now before the state court. The cases rely on the same set of

facts, present substantially similar legal issues, and involve substantially the same parties. We

agree that the federal actions are parallel to the state court proceeding.).

It was only after this court alerted Beals federal counsel that Beals state court action

pursued personal monetary relief against the Swifts that it quickly amended its state court

complaint to drop that request for relief. Then, in its Colorado River response brief, Beal argued

that the two actions are not parallel because the state court suit no longer seeks that monetary

relief. Beals gambit fails, for the Colorado River doctrine is not so nave as to allow a party to

strategically and cynically manipulate its pleadings to destroy parallelism. See Freed, 756 F.3d

at 1020 (The parallel nature of the actions cannot be destroyed by repackaging the same

issue under different causes of action.); Clark v. Lacy, 376 F.3d 682, 686-87 (7th Cir. 2004)

(same); Lumen Const., Inc. v. Brant Const. Co., Inc., 780 F.2d 691, 696 (7th Cir. 1985)

(affirming abstention where the alleged lack of parallelism stemmed from the federal plaintiffs

choice of which parties to bring into the state case); Freed v. Friedman, __ F. Supp. 3d __, 2016

WL 6070357, *6 (N.D. Ill. Oct. 17, 2016) ([A] finding that the cases are not parallel predicated

on [the plaintiffs choices of whom to join] would unjustly reward strategic behavior, because [a

potential defendants] absence from the state proceedings is entirely attributable to [the

plaintiff].); Knight v. DJK Real Estate Grp., LLC, 2016 WL 427614, *5 (N.D. Ill. Feb. 4, 2016)

([A party] by its unilateral choice cannot destroy parallelism.).

Even if Colorado River in theory allowed parties to unilaterally and intentionally

engineer non-parallelism, Beals amendment of its state court complaint failed to destroy the

parallelism between the state court action and this suit. As noted, actions are parallel if

substantially the same parties are contemporaneously litigating substantially the same issues in

5
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 6 of 12 PageID #:312

another forum. Freed, 756 F.3d at 1019. And parallelism is satisfied where there is a

substantial likelihood that the [state] litigation will dispose of all claims presented in the federal

case. AAR Intl, 250 F.3d at 518 (internal quotation marks omitted). Importantly, the test does

not require that the relief sought be the same. See Clark, 376 F.3d at 687 (Even though an

additional remedy is sought in the federal action, the liability issues (which are the central legal

issues) remain the same in both cases.).

Even as currently framed, the state action concerns the same central issue, involving the

same parties, as the federal suit: whether the Swifts defaulted on the mortgage note. If they did,

then Beal is entitled to a foreclosure judgment in the state action and to recover on the note in

this suit. If Beal proves a default in the state action, there is a substantial likelihood (in fact, a

virtual certainty) that it will prevail in this suit; and if Beal fails to prove a default in the state

action, there is a substantial likelihood (and, again, a virtual certainty) that it will lose in this suit.

Staying this case will allow that central question to be answered in the state action, which in turn

will lead to a prompt resolution of this suit, as whichever party succeeds in state court may

invoke preclusion principles here. That is the essence of parallelism. See Rogers v. Desiderio,

58 F.3d 299, 302 (7th Cir. 1995) (It is sensible to stay proceedings until an earlier-filed state

case has reached a conclusion, and then (but only then) to dismiss the suit outright on grounds of

preclusion.).

Beal places great weight on TruServ Corp. v. Flegles, Inc., 419 F.3d 584 (7th Cir. 2005),

which holds that even where compulsory joinder rules require a claim to be brought in a state

action or forfeited, a federal suit bringing that claim is not necessarily parallel to the state action

where it was not brought. Id. at 592-93. TruServ is inapposite, as the resolution of the claims

there turned on the different underlying issues: the state court case concerned a misrepresentation

6
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 7 of 12 PageID #:313

claim by Party A against Party B, while the federal case concerned involved a debt collection

claim by Party B against Party A. Id. at 588. Here, by contrast, the claims turn on the same

underlying issue, and thus are parallel.

II. The Colorado River Factors

The second step in the Colorado River analysis requires examining and balancing these

ten non-exclusive factors:

1) whether the state has assumed jurisdiction over property;

2) the inconvenience of the federal forum;

3) the desirability of avoiding piecemeal litigation;

4) the order in which jurisdiction was obtained by the concurrent forums;

5) the source of governing law, state or federal;

6) the adequacy of state-court action to protect the federal plaintiffs rights;

7) the relative progress of state and federal proceedings;

8) the presence or absence of concurrent jurisdiction;

9) the availability of removal; and

10) the vexatious or contrived nature of the federal claim.

Freed, 756 F.3d at 1018. No one factor is necessarily determinative; a carefully considered

judgment taking into account both the obligation to exercise jurisdiction and the combination of

factors counseling against that exercise is required. Colorado River, 424 U.S. at 818-19. The

court will address each factor in turn. See Freed, 756 F.3d at 1022 (noting that Colorado River

abstention requires adherence to rigorous standards, which were met where this court

carefully addressed each of the ten factors and provided sufficient explanations for its

findings).

7
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 8 of 12 PageID #:314

1. Whether the State has assumed jurisdiction over property. Because Beal initiated a

foreclosure action in state court, the state court assumed jurisdiction over the Swifts property.

Beal is right that this suit seeks separate relief on the mortgage note, Doc. 19 at 6-9, but that

relief is inexorably tied to the question whether the Swifts defaulted on the note secured by the

property over which the state court has assumed jurisdiction. This factor thus favors abstention.

2. The inconvenience of the federal forum. The state court, located in Kane County, is

about forty miles from the federal courthouse, and the Swifts live in Kane County. Although the

federal forum is slightly more inconvenient to the Swifts than the state forum, the difference is

not significant. So this factor is neutral.

3. The desirability of avoiding piecemeal litigation. Piecemeal litigation occurs when

different tribunals consider the same issue, thereby duplicating efforts and possibly reaching

different results. Day v. Union Mines Inc., 862 F.2d 652, 659 (7th Cir. 1988). Dual

proceedings could involve what we have called a grand waste of efforts by both the court and

parties in litigating the same issues regarding the same contract in two forums at once. Ibid.

(internal quotation marks omitted). Because the federal and state suits involve the same parties

and legal issues, and because both suits turn on whether the Swifts defaulted on the mortgage

note, proceeding simultaneously in both forums would ensure duplicative and wasteful

litigation with the potential of inconsistent resolutions of the issue. Caminiti, 962 F.2d at 701.

Simultaneous proceedings also would incent one or the other party to attempt to delay

proceedings in one forum should the other forum appear more favorable. See LaDuke v.

Burlington N. R.R. Co., 879 F.2d 1556, 1560 (7th Cir. 1989). This factor strongly favors

abstention.

8
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 9 of 12 PageID #:315

4. The order in which jurisdiction was obtained by the concurrent forums. This factor

favors abstention, as Beal filed the state action on June 10, 2016, and did not file this suit until

November 18, 2016, over five months later. See Lumen Constr., 780 F.2d at 697 (holding that

this factor favored abstention where the state case was filed nearly five months before the federal

case).

5. The source of governing law, state or federal. The source of the governing law here is

state law, which favors abstention. See Day, 862 F.2d at 660 ([A] state courts expertise in

applying its own law favors a Colorado River stay.).

6. The adequacy of state court action to protect the federal plaintiffs rights. Beal

contends that the state court cannot adequately protect its rights because the state court action

does not entitle it to a jury trial. Doc. 19 at 13. But that is the bed Beal made; had it brought in

the state court a contract claim on the note, that claim would have been triable to a jury. See Ill.

Const. 1970, art. I, 13; Catania v. Local 4250/5050 of Commcns Workers of Am., 834 N.E.2d

966, 970 (Ill. App. 2005). In any event, Beal cannot assert with a straight face that in rem

foreclosure actions fail to adequately protect its rights; banks in Beals position file millions of

those actions annually, and Beal does not even venture to explain how those actions

disadvantage the banks.

Beal also contends that because it is no longer requesting a personal deficiency judgment

in the state court action, the state court will not provide [Beal] with the separate remedy that [it

is] entitled to under the Note. Id. at 14. Again, this is a problem of Beals own making. Beal

could have persisted in its request for a personal deficiency judgment in state court, which would

have been the functional equivalent of a recovery on a contract claim on the note. And Beal does

not explain why it could not have included a contact claim on the note in its state court action.

9
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 10 of 12 PageID #:316

In any event, where a federal claim is stayed rather than dismissed outright, the risk that a

state court proceeding will not protect the federal plaintiffs rights is lessened, because if the

state proceeding proves itself inadequate, the possibility of reviving the federal proceeding

remains. Thus, even if Beals arguments were persuasive, the risk to its rights would be

mitigated because this court, in granting the Swifts motion, will do so by way of a stay rather

than outright dismissal. See Freed, 756 F.3d at 1023 ([The plaintiff]s substantial rights are

protected by granting a stay because it allows him the possibility to revive his federal litigation

depending on the outcome in state court or in the unlikely event that the state court action is

inadequate.). All things considered, then, the sixth factor favors abstention.

7. The relative progress of state and federal proceedings. There was an absence of any

proceedings in [this court], other than the filing of the complaint, prior to the motion to

[abstain]. Colorado River, 424 U.S. at 820. But nor has there been extensive progress in the

state court action. This factor is neutral.

8. The presence or absence of concurrent jurisdiction. All of Beals claims in federal

court arise under Illinois law, and the Swifts undoubtedly are susceptible to suit in Illinois court,

so this factor favors abstention. Cf. Caminiti, 962 F.2d at 702-03 (holding that the state courts

lack of jurisdiction to hear a federal claim weighed against abstention).

9. The availability of removal. This factor recognizes the policy against a federal courts

hearing claims that are closely related to non-removable state proceedings. See Day, 862 F.2d at

659-60. The state court action is non-removable under the forum defendant rule because

diversity jurisdiction provides the only basis for removal and the Swifts (the state court

defendants) are Illinois citizens. See 28 U.S.C. 1441(b)(2) (A civil action otherwise

removable solely on the basis of jurisdiction under section 1332(a) of this title may not be

10
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 11 of 12 PageID #:317

removed if any of the parties in interest properly joined and served as defendants is a citizen of

the State in which such action is brought.); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377,

378 (7th Cir. 2000) (discussing the forum defendant rule). Thus, although abstention will delay

or eliminate Beals opportunity to litigate in a federal foruman opportunity to which it is

entitled under 28 U.S.C. 1332, AXA Corporate Solutions, 347 F.3d at 279, this factor favors

abstention because this suit is bound up with claims in the non-removable state case. See Day,

862 F.2d at 660 ([R]elated removable claims should be decided in state court along with the

non-removable claims.). Had Beal wished to litigate this entire matter in federal court, it could

brought under the diversity jurisdiction a suit seeking foreclosure on the property, a deficiency

judgment against the Swifts, and a contract recovery on the note. Having elected not to do so,

Beal cannot now complain of or escape the consequences of its choice.

10. The vexatious or contrived nature of the federal claims. Because Beal easily could

have brought (and initially did bring) in state court its claim for monetary relief against the

Swifts, the federal suit is vexatious and contrived within the meaning of Colorado River.

See Interstate Material Corp, 847 F.2d at 1289 ([T]he federal suit could be considered both

vexatious and contrived. [W]e see no reason why all claims and all parties could not have

been part of one suit.). Even if the federal suit were not vexatious or contrived at its

inception, it surely became so when Beal, having been alerted by this court of its state court

personal deficiency claim, amended its state court complaint in an unsuccessful attempt to avoid

parallelism rather than proceed in one forum. This factor thus weighs in favor of abstention.

In sum, nearly all of the Colorado River factors favor abstention, providing the

exceptional circumstances necessary to abstain. The only remaining question is whether this

suit should be dismissed or stayed. The Seventh Circuit routinely holds that Colorado River

11
Case: 1:16-cv-10729 Document #: 27 Filed: 01/26/17 Page 12 of 12 PageID #:318

should be implemented through a stay, not dismissal. See Montano v. City of Chicago, 375 F.3d

593, 602 (7th Cir. 2004); CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 851-52

(7th Cir. 2002). Accordingly, this suit is stayed pending resolution of the state court action.

When that action concludes, any party may move this court to lift the stay and proceed with the

federal suit in a manner consistent with the state courts rulings and any applicable preclusion

principles. See Rogers 58 F.3d at 302.

Conclusion

For the foregoing reasons, the Swifts motion to abstain under the Colorado River

doctrine is granted, and this case is stayed pending resolution of Beal Bank USA v. Swift, Case

2016 CH 593 (Cir. Ct. Kane Cnty., Ill. filed June 10, 2016).

January 26, 2017


United States District Judge

12
APPENDIX 7
Case 3:15-cv-00703-B Document 32-1 Filed 05/27/15 Page 146 of 151 PageID 1499
Case 3:15-cv-00703-B Document 32-1 Filed 05/27/15 Page 147 of 151 PageID 1500
APPENDIX 8
JoAnn S. Breitling
.- ,
0
FILED IN 1704 Cornwall Lane
,"lftl vOURT OF APPEALS Sachse, Texas 75048
214-674-6572
Dallas Fifth Court of Appeals ?nr6 H:'R 31 PM 12: f 8
George L. Allen, Sr. Courts Bldg.
600 Commerce Street, Suite 200 USA MATZ, CLERK
Dallas Texas 75202

March 29, 2016

RE: Case No: 05-15-00677-CV, originating from cases JD15-00071C and CC-15-00911-C

To the Honorable Chief Justice Carolyn Wright and All Honorable Justices
My husband and I are Appellants in the above referenced case assigned to a three judge panel consisting
of Justice Francis, Justice Fillmore, and Justice Schenck. We have concerns about the impartiality of
Justice Fillmore because he was formerly employed by Hunton & Williams; and Justice Schenck because
he was formerly employed by Greg Abbott when he was the Texas Attorney General.
For Your Honors to understand our concerns some background information is necessary. Throughout our
prose pleadings in LNV v. Breitlings et g,J (Case No: DC-14-04053 filed on April15, 2014 in the Dallas
County District Court I 34th Judicial District) and Breitlings v LNV et al (originally filed on August 29,
2014 as Case No: DC-14-09604 in the Dallas County District Court IOlst Judicial District, removed by
LNV and Beal entities on September 15, 2014 to U.S. District Court for the Northern District of Texas
Dallas Division as Case No: 3: 14-cv-3322-M presided by Judge Barbara Lynn; remanded on January 27,
2015 and removed again by LNV and Beal entities on March 3, 2015 to U.S. District Court as Case No:
3: 15-CV-00703 presided by Judge Jane Boyle) we have maintained that LNV Corporation is a shell sham
corporation being used to commit conspiracy crimes including federal mail and wire fraud consistent with
the criminal conspiracy for which Lorraine Brown was convicted in favor of the United States. United
States o(America v. Lorraine Brown, Case No. 3:12-cr-198-J-25 MCR, (M.D. Fla.) (See our Motion for
Judicial Notice of the Lorraine Brown Indictment and Plea Agreement filed on Oct 28, 2015 as Exhibit A
to Appellants' Reply to the Appellee Brief filed on August 18, 2014 which had been filed into LNV v.
Breitlings et al and Breitlings v LNV et q/.)
Although only Brown has been convicted to date it is adjudicative fact that Brown had co-conspirators. It
is also adjudicative fact that Brown used Lender Processing Services ("LPS") as a corporate vehicle for
her crimes. Codilis & Stawiarski Counsel for LNV Corporation in LNV v. Breitlings et al is an LPS
affiliated law firm; and is named as a defendant in Breitlings v LNV et al.
Throughout our pro se pleadings in both cases we have maintained we are victims of the conspiracy
crimes ofBrown and her co-conspirators; and that the sole director ofLNV Corporation, Daniel Andrew
"Andy" Beal, along with his LPS affiliated attorneys are among Brown's co-conspirators; i.e. they are
committing crimes consistent with her conspiracy crimes; and worse. We have maintained that a break in
the chain of title to our property occurred as a result of Brown's and/or her co-conspirators' crimes and
that Beal and his sham LNV Corporation exploited this break and manufactured additional false
robosigned and/or forged Assignments of Deed of Trust, Mortgage Notes, Allonges and other mortgage
related instruments; as well as false Afficlavits to give the appearance that our Mortgage was conveyed to
LNV; and that Beal aka LNV manufactured these false instruments with intent to deceive courts into
believing they are genuine with intent to foreclose on our property for the personal fmancial gain of

Page 1 of2
LNV's sole director, D. Andrew Beal and to cause us harm by illegally depriving us of our property
through a scheme to defraud.
To show that Beal knew the use ofrobosigned mortgage related instruments violated Texas civil rules and
Texas penal codes and that foreclosures and sales perfected with such false instruments were void we
have submitted to all the courts involved in this dispute a letter written by the office of former Texas
Attorney General Greg Abbott to MGC Mortgage Inc. another Beal entity owned and controlled by D.
Andrew Beal.
On Feb 19,2016 we filed our Appellants' informal response to additional authorities filed by Appellee
and we attached as Exhibit B this Greg Abbott letter to MGC dated October 4, 2010 with MGC's
response letter dated October 31,2010 written by Hunton & Williams attorney Peter G. Weinstock; who
was formerly employed by Jenkins & Gilchrist.
We have attached to our letter to Your Honors a true and accurate copy of a certified copy of LNV' s
Nevada Articles of Incorporation filed on March 17, 2008. M. Elaine Meyers endorsed the Articles of
Incorporation as "the sole incorporator ... for the purpose of forming a corporation pursuant to the General
Corporation Law of the State ofNevada ... "
M. Elaine Meyers was also formerly employed by Jenkins & Gilchrist and is currently employed by
Hunton & Williams. Many former employees and attorneys with Jenkins & Gilchrist became employed
by Hunton & Williams a law firm that regularly represents Beal entities or became directly employed by
D. Andrew Beal and his corporate entities after Jenkins & Gilchrist's senior partners were indicted and
later convicted by the United States for a tax fraud schemes.
We have been harmed what appears to a:rw objective person to be the improper influence of Judges Gerry
Cooper and Sally Montgomery in matter now before this Honorable Court of Appeals, so naturally we are
concerned about the impartiality of Justices formerly employed by law firms known to regularly represent
D. Andrew Beal and his Beal corporate eJltities. Some of these law firms are:
Vincent, Lopez, Serafino, Jenevein P.C.
Codilis & Stawiarski &1\d other LPS affiliated law firms
Locke Lord LLP
Hunton & Williams LLP
Jenkins Gilchrist PC
We submitted the Greg Abbott letters to support our claims in Breitlings v LNV et al. so we are also
concerned that LNV might later object to any ruling from this Honorable Court not favorable to LNV
because Justice Schenck once worked for Greg Abbott's office.
We respectfully request that Your Honors carefully consider the appearance ofbias and voluntarily recuse
themselves if a conflict of interest exists that :might cause the appearance of impartiality.

Respectfully,

Page 2 of2
case ;j:l4-CV-UUS;jo-Niu uocumem ..LUL-ts r-uea u~/Lm..L:J t-'age .1 u1 ~

EXHIBIT H

STATE OF NEVADA
n 4 c.5
F ~~ 3 ~'
~ SCO'ITW. ANDERSON
.DfJWy fJ:rdar;:
p 5: Sb forC-rn:ltl/~

Certified Copy
August 15, 2013

Job Number: C20130812-0270


Refereaee N1UIIber: 00003998402-25
&pedite:
Tllroogb. Date:

The undersigned filing officer hereby certifies dJat the attached copies are true aod exact
copies of all n:quesled statements and related sabseque:Dt documeotaUoD filed with the
Secrelary of State's Office, Commereial Recordings Division listed on tbe attached
report

Doclunellt Number(s) Description NIUIIberofPages


20080180715-22 Articles of Incorporation 8 Pages/1 Copies

Respectfully,

,d~
ROSS MILLER
Secretary of State

Certilled By: Joam Larson


Ca111ica1a Number: C20130812-0270
You may wrify 1hls oarlllcate
online at http://www.JMIOLIIOVI

Conmlerdal Ravidla& DllsiH


202 N. Carson Street
C8IBOII City, Nevada 89701-4069
Tdqlhone (775) 684-S708
Fax (775) 684-7138
uu"'tuu-TAV-HBG Document 48-16 Filed 02/03/14 Page 1 of 9 PageiD #: 701

Exhibit H oaoe 1
Lase 6:1.4-CV-Ul.~6tHVIU uocumem l.UL-~ t-ueu u~tLml.o t-'Cl!:Je L Ul ~

r=p
' -
r:n
I

ZOI~ JAN 3W P 5: Sb
. . . a&.I!R

-====. . .
c... a........ ~
(771) . . .,..
-.......: ........ , 7 '*

Articles of Incorporation
(Pt.RII.WITTO fS 78)

iI

l
..-- .,.
2.55zspf
n.,_ ...,
~ 'tt
...., a e
r
fll!-

.........,.........
..... .; ~i~~ -~:~~ 500""- - ... ---~ ....... 119511

i _~....... ..~

-
7 _ZIPQ!de

ZIIIQ!de

I ......,CII...._- ... --- - - ..... ........CII......


........ ~- . ... . . . .1 ... . _ ~~... .. . . . . . . . . . . . . .

.,.,..,
.. .
'
.. I ._.,..
I. JaobQcmar
.................
.. .. ... 7 .;; Ptii;"'.
tiJ;_,_,rz

._._,,..
-.2
. .. 'I,
2 1 c.,. ........ a .

.....,
- 3 57 -

... ?"'
'N.. ......... ............... -............... -- ........ - - . . ......... ___ ............... -. -
--~ ... -- ....... -.................. _.. :Gir.... . ... ... .. .. -: ~-::~~~----~
.... ~t!'"'!'-~~~11!'!1!~. . . ........ ..... .. ... . . ......... -..
. a
,_...,.... Alfy~old,lldlYfl;v!~~~~~ . . . -...-UDdlrNeadlfatr

......
---
rut
5 uw
1D.i..
2 0

1445 Roa A--,..s.ltiD


-Adllrwl!l
3100
. . . -.. . ---.:.;
'

r. Qp r tl'
a ) llf
g !' nut

.,

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 2 of 9 PageiD #: 702

Exhibit H oaoe 2
L-aSe .):1.4-CV-U.U::S.)tJ-IVIU UOCUmem .lUL-~ t-lleU U'd/L~I.l=:> t-'ctye .:l Ul 'd

: .

ZOI~ JAN 34 P 5: Si

FIRST: The 111me of lbe COipOIIIioa iJ LNV Cclrpcnlion (lhe "'Ccrporatioo").

SECOND: The l'elidlmr ..,..t of lbe Corporation within the Slam of Nevada is The

Corpondoa Trull Company of Nevada. IOCIIII!d a 6100 Neil Road, ~ 500. ReDo. WuboD

Courtr:y. Nevada 89511.


1 THIRD: The Colponlion may CRPF in any lawful .a. aaivity llldlor bu1ineaa far

I which C01'p01111:iona may be oqanized under die Geneml Colponlioa Law of the Scare of

NeYD.

JlOUilTB: The...,..,., IIUIIJIJa' of llllla whicb the Colponllioa illlllborizod to illue

iJ 10.000 ....._of Common Sloct with a par wlue ~one cent (SO.Ol) ,_ ~~~~

in rapect of dle shma of lbil c:r... ~ follows:

A. ~ ro lbe pnwilioDa of Jaw. dividenda may bo plid on tbe ()aanoa

Stock or die CGipcndoa IUCb lime .ru. IUCh amouDII Cbe Beam of Dirc;clon may deem

advisable. Eacb ~hare of 1hc Common s.ocJc lhall be entitled to one YOCB on each IDitt

JQbmitteclto a vorc at a meedn& of IIIOCJcholdcn.

B. (i) Subject to lbe poviaions of Jaw and lhc fmepins pmvilions of these

Articlea of IDeorporltioD, lbe Colpondon may ialae lblrea of ill Common Stock flom timD to

lime for JUCh CORIIidcntioa (not reu If&\ * par value or ICifeCf wluc dteafJ asmry bet f1XIJd

by the BoiiRl of DireciDta. wbic:h ia eaqnuly IUihori7.ed to fix abc ume in its alllolwe and

-1-

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 3 of 9 PageiD #: 703

Exhibit H page 3
case ~: 14-cv-uus~o-IVIU uocumem .lUL-~ r-uea u~t L~t.to t-'a.ye 4 u1 ~

wic:onooned ckredon subject tD the -~~ ~5Ji\lbe Common SIDCk 10


issued for which lheCOGiiclendoa hu .... ~~d"~ .... bo deemecl
t,$lf~f.i r;:; \:
fully (Mid 8IOCk IDd shall not be Jilble to ay fllldiCI' call or aICUiflllllt tbereon IDil tbc holden
"'' ..,_ ,-r~ ....~-4...G.
of such shares lhallnol be HlbJc for lilY furtbcrr JM)IWidl in relpOCC of IUCh lb8Ris.

("Ji) Cuaml.lldw WJtiag by lillY lfOr.IEh.lldtz is blnby ~y dadecL

FIFI"H: The membcn rA the pmtmiDJ ho~Wihall be llJied diJec:fola and lbe IIUIDber
.
I
-; lhen:of lball ~fixed a pnwiclod by lho Byllwl fA lbe Carpcnlion but . . . DOt in IDY eYCIIl be

] lcalhln ooe (1); pnwided Chat the aumber10 fixed a pnmded by lbe Bylaws may be incl:eaed

I or dcc:rcalad from lime to dmc a proridcd by lhe Bylaws.


The name IDd oftice lddrell of lbc inilial .....,_ rA lbe BOn of D.iRx:rGra, wbida IbiD
"f
consist of one (1) 11811boc. an= 11 toUowa:

QftlcoMtre
Jacob Clemer 7195 Dlllu Partway
Plano. TCUJ 7S024
SIXTH: The DIIDC ad lddn:a of lbe I01e incolporllar lipiag die Adiclea of

IIICOJ'pCXatioa 11e foDowa:

M.. Blaine Meyers 144S Roll AWJDUe


Suite3700
Dalla. Texa 75202
SEVEN'I'B: The CGrporalioo lhall have perpeblal eUtcDce
EIGHTH: A. The Board Or DirectoD is c:xp:euly IUlhodzl:d to make. alter or .mead

drc Bylaws of rhe Corporation.

'7U:IS601111ZI2 HW_US 2SC810Uvl

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 4 of 9 PagetD #: 704

Exhibit H oaoe 4
~ase .:S:.l4-CV-U.U::5,jtHVIU LJUCUI!Ielll l.UL.-0 r-ueu U-:Jt L.Otl.::> r-ctye :::> u1 -:J

B. Authority ia bezdJy expraalift~ ~\bf'~ ~1..e Board ofDiRCIOII to


iaue notes, bondl, clebentum. watiJIIB and Cllf.8r~,be CoJpandon conwdible iato
! ~$~(!\~ . '
stock of such cl or beariag IUCh wamt~~tl or Oilier ~ of -opticmal rfs1D to pun:bue
.. ' ,_,.,....lolr
.I>'..............

andlor sublca:ibe to ltOCt of lOCh ella aad illued 8Dd CODYedibJe upon IUICb tirms llld

c:ondiciona ad in lUCia manner as may be fixed lnd ltllted by tbe ftJI01ulion or JWOiatioDI from

lime 10 time 8dopred providing for the iauaace thereof.


f
I c. 'I'he 'Board of Dm:ctou .tball be audHirized ro aadlc aU such powen and do .u
i
i IUdl thinp and acca may be oxen:iled or daDe by lbe Corponlioa. subjec;t ro the provislona of
I
!
.;
I
dtc laws of the S~~te of Nevada, of tbae AdicJes m~ IIJCl m1ht Bylaw~ of die
I
i
.f Colporation.
i
!
! NINTH: No concnct or adler b'lnllction between die Oxpcntion and lilY ocher
i
;

COipOI'8Iion ad no om. act of tile Colporation sball, in tbe absence of~ be invalidllled or in
any way affected by lhe fact that any of the sroclcholdln. di.tecton or officm of the Colporldon

stoekholden. ~or officers of IUChOirpontion. Any IIDCkholdcr. diJec:tor or officer of


lhe Corporation, iadividually. or aay firm or I8IOCillioo of which IDY aucb IIOekllolder. director

or officer may be a member, may be a party to, or be pecuailrily or Olberwiso iatereltl:ld Ia, my
contract or r:ruaCiion of cbe Corporation, pov.ided 1hal the fact that he individually or IUCh finn

or associlllion il ao iniOiea&Cd ahlll be dilcloeod or shall have been known to the Bolrd of

Directon or a majority of aucb membcn thereof as shall be present at any meetiq of the Bolrd

of DireefOI'I at whicb action upon any IUCb CODIDCt or 1111D88Ction shall be tabrn; ad any

dir=ot of tho Corporabon who is altOCkhoJder, director or officer of IUCb otbcr cmpocation m
who ia so inrm:raced may be counted in delerminina the aistence of a quorum at any meetiag of

the Board of Direcrora which sbaJJ authorize any IUCh coouact or lm1PCtion IDCl may vote

-3-

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 5 of 9 PageiD #: 705

Exhibit H page 5
case ;:s:l4-cv-uus;:sb-MU uocumem lUL-ts t-uea u~tLtst.l!:> t-'age o u1 ~

dHnlt to I.Uihorize aucb c:ontrd or b lltb'ti~Ml d+iy ~. direc:tor alfic:a' ~ tbe

Corporation being hereby relimld ftom


.
lOiJ*""-tt_fillfi'..,_
[t,$Tf.RH u: , ' "'
odllnrile JDW11t bim hm
carrying out tmlsactiona with or CXIIIIItednJ wi1h tbe ~ for the benefit of bimlelf
~~ ..,..._-..,
any finn or coq)ondon, IIIOCiadon. trust or Cllpllizldon in wbic:b or wilb whic:h he may be in
my way intere81cd or c:onnec:led.

TENTH: A. The Cclrponlion may iudemnif'y any pe11011 who Wll u a p11ty or is
lhrearened to be made a party 10 any lhrellcGed, pending or compiJI!Jd acdon, tu1t or pmreor'a&
I

whether civil, c:riminal. ldminillndw or bmlldpdve. uc:ept a .:tioa by or in tb8 riJ,bl of lbe

Corporation, by reason of the fact tbat be il or wu a dilecbll. oflic:er, employee or .,eor of lhc

Corponlion, or is or wu serviDg Ill lhe teqae1t of tbe Corpondon as a dhecb, Jffi.-.


!
;
! employee or apnt of II10iher corporati011 or il or was laVing it lhe Jequat of tbe Corpondon
a direcror, officer, trua.ee, employee or tp~t of 8DOibet COipOIIIioa. parmenhip, joint 'ftllllR,
bUlL or other enmrprise. tpinll expeues, including 11mmey fees. jucfamenU. linea and IIIIOUIItl

paid in aett1e1aem. 8Cttlally and 111110111bly inc:um:d by Jrim in c:oaaection with aa::b -=doD. suit

or proceedins if such penon IKDd in sood flith ad in aii18RIIa' he nsMOUbly bclicYed to bo in

or not opposed 10 the beat inten81t of the Carponidon, aad. with llllpeCt 10 lilY cdmiDIJ 1CtioD or

proceeding. had no I1'JIIAOaablc CIUie to believe his cooduct wu uolawfol. 111e amiD11ion of

any action, &uic or proceodiftl by judplcnl. cxder, IOUkmlem, or GOilViclioa. or on a plea of DOlo
contendeR or ita equivalcat does aot. of illelf, ~a ~on thlll the periOIIl did oat act in

&ood faith and in a JDII1Del' which be ftiiiORIIbly believed 10 be in or not ClfiPOSCd to 1bo belt
immeat.s of lhe Corporatim, and dill with aapect to any crimjul IICtioo or (IIOCtlOding. be had

reaiODible cause to believe that his coaduct was unlawful.


B. The Corponlion may indemnify my penon wbo wa is a party or is

threatened to be made a party 10 any duarenod, pancliDg or~ acdon or suit by or iD die

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 6 of 9 PageiD #: 706

Exhibit H page 6
case ;:s:l4-cv-uus;:so-Mu uocumem lUL.-ts t-uea u~tL.tst.l::> t-'age , u1 ::1

FH_ ~n
''l
..
''I
ZOI~ JAN 3l! p S: 51
1
ripr of lhe Corpontion to procure a jndl"'ff't in ita favor by ..,... of lhe fact lbat br: il or wu
U.S. DISTRrn COL'~ r
. !
adirecror, oftioer, employee or ...,r of die~ iCita~"*lli'viq et the zequest oftbe
.

Colpondon u a director, olftoer, tralflle. I&I'Rt Or'~~ cialpcaldioa. t*IIW1hip,


joint VCIIQR, 1n11t or Olbercurarpdle apiJIIt ..,.._., incJadins amouata pmd in Mfllement IIICi

altclmeJI' faa accually aod teUOIIIbly .iucuued by him iD cm~aocriM wi1b lbe clcfeDIIe or
leltlement of die action or IUit if be -=ted in good 6dlh ad iD a lllllbJCI' be JeatOIU!bly believed

10 be in or not oppoaed to lhe belt ~ ot die CcQmaioa. lndouJDific:ation may not be

made for Ill)' claim, iaue or lllllt u 10 wbidiiUCia penon bat beeD ~ by a court cl

c:ompeu-.ftr juriadi(:rion, after ahadon of Ill appeals ttaum.o. to be liable to the Carpondcm
or for amountl paid in aeu1cmatt to lhe Colpondoa. ua1eu tad ODiy to 1he euc:nt tblllhe court

in which the aclion or suit was bl'ouJbt or otbor court of compe~~e~tt juriJdiction determines upon

appHcarion chat in view of alllbo c:ircums1aoea of lhe case, such penon il fairly IIDd .-...lily

entitled to indemnity for IUCh expense~ wbich Cbe court cleeml .r.nper.

C. To die eden~ Chit a dinlcrGr-, allic:w. empJoJee or -sent of lhe.CoqMIIiOD

hu beeD IUCCelllul on die meri1l or otharwiiD in detmle of aay 8Ciloa. suit or fJI'JC'Odng

refeared 10 in IUblecliona A llld B. or in dafenle of a.y cWm, i.uue or IIUIIIIa' lblnin.lle IbiD be

iodemnified apinac expenses, includfna IIIOmeyl' feel, aciUIDy 8Dd ft181001b1y iucuaed by him

D. BxpcDICII iNiwred in defcui&Da a dvil 01' c:rimiual .::tioa. suit or

proceeding may be paid by lbe Colponlliou in advanco of lbc final diaposition of IUCb ICiioa.

suit or proceediqas authorized by lhe Bomd ofDirecUJla.

E. The indDmDificaliOD ptOYidllcl by dda leCCion lbll1 DOt be deemed

~lusiw Of D)' ocher dght 10 whfcb thole JeetiJ11 iJidemnlflcetioa may be ealided-under ay
bylaw, qreemcnt, voce of IIOCkboldcn or diJi.-lllfad dhecll1n. orGihenvile. bolb ID actioa

~s-

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 7 of 9 PageiD #: 707

Exhibit H oaae 7
case ;:s: 14-cv-uus;:sb-MU uocumem lUL-ti r-ueu U'dt Lt:~t.L:J I'""' aye t:~ u1 ~

Fl! r:o
.,
'
in his official capiCity and 11 to Ilia ICiion ia Olher c:ap1Ci1iea ~-WJa .Q cirililad lball
u 'Ul.lnn
candaue to a pason wbo Jlu ceaed to be a dinlcao Clfticef.~~rar ~patllld
! ,,

shall iaure to the benefit of the beim. uecuta~al ahlllnot..a~


F. The Corpcndon lhall have power to~ IDCI maialahl iDilnace oo

behalf of ay periOIJ wbo il or Wll dbeclor, omcer. empl.oJee or . . . of die Corporll:ioa. ... is

or wu laYing at dJe ""'uelt oflbe Cupoatioa a a ctiJeetoi, officcl', bulfee. ~ qeat


;
of llnOifler COJpOI'IItiCJa. J8b1Ci*ip. joint ~ 1n11t or OCber eallelprile apiDir ay Uability
.
;'
i ....-1 apinst him or iDc:umld by him .in ay 8UCh ~or 8lisiDg out of his &IIIUI aiUCh.
'I whelher or not tbe Coqxnrion would brle lbt power to bldenwdfy him lpiDil sudJ Ulbility
i
''

ELEVBN'I'Il: No cfinlct or oftic.w of lbe Cclrponlion lhltl have penoaal.tilbility to

Che Corporatioa 01' i-.llockhotdea ror - .... for lnacb of fiduci.y duly .. diJeclor or afficar
unless rhe liability arises out M: (a) acfl or OIDiaionl wJiidl in'VOlve iJienlional mtlcoDdoct.
fraud or bowina vicUiion of law; or (b) lhe paymen1 of clilln"booioDD in Yio&.lion of NRS

78.300.

TWELFI'H: No JCockholder of ddt Cotpwidoa lball. by teuoo of bi& boldiDg lblftiS

of any clus of atoct. have any pOCIDJldvc or pefeaMdll ri&ht to pun:bllc or IUblcribe to my

SluRs of any elaa of IIIJCk of dlil Corpandon. now or lleaeatba 10 be 8Uihorized. or ay ootea.

debr:n~~~~a, bonds or Olbar aeaarilicl c::ouvatlblo into or carryias aptiODS 01" wiiii8Dta to pun:bue

shares of any class of llOCk, now or hercaftcr to be lldbodzed, wbetber or not die illuancc of my

IUCh ahales, or IUCb nora. debeatllnll, bonds or Oilier eec:uritica would ldvalely affect dJc

dividend or YOiing ripll of IQCb ltockbolder, other thin such ri&l*. if any. as lhe .8oani of
Diii'CtOl'l, in ita dilcredon from lime to time, may pant. and auch price as lbc Bam~ of

Direcrors. in its clisezetion, may fix: aad abe Board of l>.beeiJoQ may Q1IIC to be illurd ..... of

-6--

7025611011ZJ2 HW_US 25GJIDI4vl

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 8 of 9 PageiD #: 708

Fhihit H n~nA R
case ;:s:l4-cv-uus;:so-Mu uocumem lUZ-ts t-Hea u~t Lt5tl.:::> I"" aye ~ u1 ~
'. ..,::

Y c:laa of arocJc of dais Colpcntioa, any DOieili'I.~Nai6i. Qci: & ldacr waptdes

COIIYCI'tible into or Cllr')'in& optiona WIIJ'Dts to ~-~ftltu~ olsroot whbout


lfl.iT[i1!.. S : ., i,
offering ay such lharel or ocher ~ oilber iD wbolo or iD pm. ro me exiJ1iDa
' ... 1-t- ....... v;. r..lJ ..... ~ I.. ~ .

any proviaioa conlained iD tbc Articles of lucoipot:ldoa. ia the maaner DOW or hetesfta
I
I
i ptaeribed by llaiUfe. and all ripla c:onfaaecl upon ltOCkboldcn hcn:in aae erased IUbjec& to this
I
'
I
II
.
l I. 1BB UNDERSJGNPJ>. lleina lhe 101e iDcorporlror benlinlJdole IIII.Ded. for b
purpose of forming a COipOIItion punuaat to abc OencnJ Ccapanlioa Law of ... Sba m
Ne'llda. do make md fiJe 1hese Arlidel oflncorponiaion. hlnby declarinsll'MlCildifyiu& lbal the
facu helein Silled ~ tnao .-d ICCOI'diagly have bcRualo set my biDd 1hia \ "'\,.,.. day of

MJicb. 2008.

~_::. :::n.. . r"'

-7-

Case 3:12-cv-00468-TAV-HBG Document 48-16 Filed 02/03/14 Page 9 of 9 PageiD #: 709

Exhibit H page~
\I

f
~ 1
. 1