Monthly Archives: May 2012

Landmark Lawsuit Filed N.Y. Supreme Court by US Home Owners Implicates Obama and Big Banks in Massive Global Laundering Scheme!!!

Landmark Lawsuit Filed N.Y. Supreme Court by US Home Owners Implicates Obama and Big Banks in Massive Global Laundering Scheme!!!.

Deo Vindice—1st Scheduled Homeowners Legal Education/Self-Defense Seminar—New Orleans June 29-July 1, 2012

“The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite.”

– Thomas Jefferson

The Motto Deo Vindice has special meaning in New Orleans, the City where Jeff Davis died December 6, 1889 while visiting from his last home at Beauvoir, Mississippi for the Dedication of Memorial Hall.

We invite everyone who has any interest in the current crisis in America to join us at the Crown Plaza Hotel in New Orleans, 739 Canal Street for our first ever Seminar on the Vindicatio—our fight to preserve our homes for ourselves and our children.  I went to College in New Orleans, it was there where I entered adulthood (well, in the U.S., anyhow—technically I turned 18 in Honduras while working on the Proyecto Arqueológico Copán in the middle of my Tulane College years—I look back with some irony now at how proud I was to be employed by the World Bank in a regional development project… oh well, I was only 18….).  

What I want to do in this Deo Vindice/Tierra Limpia Seminar Series is introduce people all over the United States to the reasons that they, or their neighbors, friends, or relatives, or all of them, may be in danger of losing their homes.  

During my first quarter at the University of Chicago Law School I thought to myself “this isn’t graduate school, everyone should be required to learn this in college!”  I had at that point in 1987 finished all the requirements for my doctorate at Harvard except the completion of my dissertation, which I did 3 years later—somewhat significantly enhanced by the law school experience.

Then about 7 or 8 years ago, Jon Drew Roland, then State Senator (now State Representative) Jerry O’Neil from Kalispell, Montana, and I submitted proposals to the Ford Foundation, the Annenberg Foundation, and the MacArthur Foundation for a grant to sponsor the introduction of the equivalent of the First Full Year of Law School as an elective part of the curriculum in High School.  Ford and Annenberg denied us pretty much summarily.  MacArthur reviewed and asked for more information and then denied.  The Ford Foundation specifically mentioned that our goal of universal legal education was not consistent with Ford Foundation purposes.

So the only way I can possibly realize my dream of sharing basic legal education with the people is through “private” education—and I can only hope that this Seminar Series will “catch on” so that I can continue it.  

If anyone thinks it’s ironic that Deo Vindice advocates liberty and commemorates the memory of the Confederate States, I can only say: study your history.  It is the United States Government of today that, through Welfare and Destruction of Individual autonomy and freedom under the Constitution, transforms all Americans into helpless children, wards of the state, essentially “slaves” on a great national plantation called North America, where true equality exists.  It is the equality of a world where NO ONE owns private property, NO ONE has the right to raise their children, NO ONE has the rights to the fruits of their labor.

To sign up and reserve at an advance registration of $250 for a two-day weekend session, please contact Sylvia Floyd in New Orleans at (504) 261-3126 or Peyton Freiman in Austin at (512) 968-2666.  Brad Austin has agreed to help us set up an (as yet unscheduled) seminar in Flint Michigan for sometime this summer (810) 265-2405 or (810) 569-2972.  We are studying other possibilities in and around Austin, Texas, Boston, Massachusetts, Palm Beach County, Florida, Ohio, New Jersey, and of course California.

Download Our First Flyer (I promise they’ll get better): 05-23-2012 AMERICAN HOMEOWNERS  Self-Defense Seminar in New Orleans!

California Coalition for Constitutional Rights: Seeking all California-Licensed 420 Growers or Medical Cannabis Dispensers threatened for violations of FEDERAL Law by State Officials

I have previously stated that I support the rights of the Central Valley growers who have been attacked and put out of business under color of law by California State Officers claiming to be acting under Federal Law or even as Deputized by Federal Agencies.  The goal is to collect as many stories and rights together and file suit under the principles asserted last year in Bond v. United States: that private individuals have standing to sue for violations of States’ Rights under the 10th Amendment. Bond v US 131 Sct 2355 180 LEd2d 269 SCOTUS JUNE 2011.  I would like to see the holdings of Bond, extended to the 9th Amendment as well.  No right should exist, in fact, without a remedy to enforce that right.  Is there a Tenth Amendment remedy to restrict or overturn the Commerce Clause restrictions on liberty imposed and upheld in Gonzales v. Raich06-06-2005 Gonzales v Raich 545 US 1 125 SCt 2195 162 LEd2 1 06-06-2005?  The time has come to abolish illegitimate Federal exercise of power by putting the Interstate Commerce Clause back in the box where it came from (namely Article I, Section 8, Clause 3 of the Constitution).

The attached document reflects our current strategy and goals, comments welcome: 05-16-2012 Deo Vindice-Cannabis + States’ Rights + the Constitution + Agrarian & Individual Freedom

Please call Jack Bauer in Fresno at (559) 291-6188, Peyton Yates Freiman in Austin at (512) 968-2666, or Melody Gillespie in Porterville (559) 779-8253.

A case to watch 09-cv-9784 S.D.N.Y.: Deutsche Bank, AG v Bank of America; Complaint Showing that there’s No Honor Among Thieves (aka–in the absence of Fresh Carrion, The Vultures are starting to Feed on Each Other!)

Updates: March 23, 2011 Opinion: 778_F-2.Supp.2d_375 and an unpublished decision in a closely related case before the same Judge Sweet: 08-30-2011 BNP Paribas Mortg Corp v Bank of America NA 2011 WL 3847376.  March 17, 2010 First Amended Complaint: 03-17-2010 USDC SDNY FAC Deutsche Bank v Bank of America 09-cv-9784-RWS

First Amended Complaint adding count for Breach of Fiduciary Duty regarding the Ocala Facility and Ocala Agreements.  Incredibly important litigation: “As late as August 3, 2009, BOA represented to DB that BOA owned and had control of mortgages valued at over one billion dollars securing DB’s investment.  In August 2009, following the bankruptcy of TBW, it was revealed that with respect to the great majority of those mortgages, BOA either never owned them in the first place or already had sold them to Freddie Mac without securing the proceeds of any such sale.”

Printable version of the Complaint attached when first published here on November 30, 2009, at 13:44 from San Clemente, California:

DEUTSCHE BANK, AG, Plaintiff, v. BANK OF AMERICA, N.A. Defendant

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DEUTSCHE BANK, AG,

Plaintiff,

v.

BANK OF AMERICA, N.A.

Defendant.

Civil Action No.: 09-cv-9784(RWS)  ECF Case

COMPLAINT

Plaintiff Deutsche Bank AG (“DB”), by and through its attorneys, Williams & Connolly

LLP, as and for its Complaint against Defendant Bank of America, N.A. (“BOA”), as successor

in interest to LaSalle Bank, National Association, alleges as follows:

NATURE OF CASE

1. This is an action for (1) damages for breach of contract resulting from BOA’s

failure to secure and safeguard over $1.25 billion worth of cash and mortgage loans that it was

contractually obligated to secure on behalf of DB and (2) contractual indemnity for the losses

caused by BOA’s negligent performance of its duties to DB.

2. On December 13, 2007, DB invested $750 million in asset-backed commercial

paper (“ABCP”) issued by a special purpose entity called Ocala Funding, LLC (“Ocala”).  On

June 30, 2008, DB increased this investment by approximately $450 million to a total

investment in Ocala’s ABCP of approximately $1.2 billion.  On June 30, 2008, BNP Paribas

Bank (“BNP,” and collectively with DB the “Secured Parties”) also invested approximately

$481 million in the ABCP issued by Ocala.  DB’s investment in Ocala was to be renewed on a

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monthly basis, and Ocala was required to maintain at least $1.25 billion in cash and collateral

as security against its obligations to DB.

3.   Ocala was established for the sole purpose of providing funding for mortgage

loans originated by Taylor, Bean & Whitaker Mortgage Corp. (“TBW”).  Mortgages purchased

by Ocala were required to conform to the requirements of, and were intended to be sold to, the

Federal Home Loan Mortgage Corporation (“Freddie Mac”), a government-sponsored entity

that is implicitly backed by the full faith and credit of the United States government.

4. Ocala’s ABCP was structured to minimize risks to DB’s investment.  Robust

contractual mechanisms existed to ensure that DB’s investment would be protected from credit

risk, market risk, interest rate risk, the risk of bankruptcy by TBW, and the counterparty risk

associated with dealing with TBW as originator of the mortgages.  In that regard, BOA

assumed the responsibility to act as trustee, collateral agent, custodian, and depositary agent on

behalf of the ABCP holders, including DB.

5. One vital mechanism protecting DB against risk was the requirement that DB’s

investment be at all times over-collateralized by a combination of cash and “dry” mortgages

purchased by Ocala.  “Dry” mortgages are mortgages that have been reviewed by the lender

and are actually in the lender’s possession at the time the mortgage loan is acquired by the

lender.  By contrast, “wet” funding of mortgages is riskier from the lender’s perspective

because financing is provided to a borrower before the mortgage note has been received and

reviewed by the lender (i.e., when the ink on the mortgage note is still “wet”).  The lender

providing wet funding for TBW was Colonial Bank (“Colonial”).  In making its investment in

Ocala on June 30, 2008, DB insisted that its investment be used only for dry mortgages.

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6. DB’s investment was further protected by the requirement that Ocala purchase

only mortgages that satisfied the requirements of Freddie Mac, and DB obtained assurances

from Freddie Mac that Freddie Mac would purchase mortgages held by Ocala in the event

TBW became ineligible to sell mortgages to Freddie Mac itself.  In short, DB’s investment was

required at all times to be secured by a combination of cash and dry mortgages that readily

could be sold to Freddie Mac.

7. A number of protections existed to ensure the reliability of the collateral

securing DB’s investment.  First, Ocala was permitted to purchase only fully-documented and

executed mortgages that were in the possession of a collateral agent representing the Secured Parties.

8. Second, the only purpose for which Ocala could use the funds invested by DB

(other than to repay DB or to cover other specified expenses) was to purchase such mortgages.

Any proceeds garnered from the subsequent sale of such mortgages were subject to the same limitation.

9. Third, the Ocala facility could continue operating only so long as the borrowing

base of cash and mortgages allocated to DB as collateral totaled at least $1.25 billion (the

Borrowing Base Condition”).  If the Borrowing Base Condition was not satisfied, the trustee

would trip this “circuit breaker” to suspend any further outflow of cash and to prevent the

automatic monthly renewal of DB’s investment.

10. These carefully crafted safeguards protecting DB’s investment from risk were

only as reliable as the gatekeeper who administered them.  To ensure that Ocala complied with

these measures, DB relied on a credit-worthy trustee/custodian/collateral and depositary agent

to serve as the gatekeeper that would at all times control: (1) the flow of mortgages into and out

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of Ocala; (2) the mortgages and cash that were to be held to secure DB’s investment; and (3) all

accounts in which Ocala’s funds were to be held or to which they were to be distributed.

11. BOA, as successor-in-interest to LaSalle Bank, N.A., assumed this gatekeeper

role.  By way of a series of contracts that governed the existence and activities of Ocala, BOA

accepted the responsibility to enforce the provisions that had been designed to protect DB’s

investment.  BOA represented that it would perform its duties with due care, and was obligated

by the contracts to do so.  It was BOA’s charge to ensure that Ocala at all times retained cash

and mortgages totaling at least $1.25 billion to secure DB’s investment (“DB Collateral”).

12. DB trusted that BOA, one of the nation’s largest and most well-known financial

institutions, would perform the gatekeeper function reasonably and responsibly.  DB’s

confidence was echoed by Moody’s Investors Service, which, in assigning Ocala an investment

grade rating, emphasized the importance of BOA’s role and stated that risk to DB and other

noteholders was “mitigated by the resources, capability and credit strength of BOA as the

trustee, collateral agent, depositary and custodian to provide critical program support services,

including: certifying the borrowing base and checking the delinquency triggers before the

issuance of Ocala’s ABCP; checking in the loan files and creating a collateral transmittal

report; and managing the orderly wind-down of the program.”  Moody’s ABCP Market Review

(July 13, 2009).

13. As it turned out, the faith of DB and other investors was misplaced.  In myriad

ways, BOA failed to carry out its various duties designed to protect DB’s investment, and these

failures substantially damaged Ocala and DB’s investment.

14. First, BOA transferred funds out of the Ocala accounts for unauthorized

purposes.  Ocala was permitted to purchase only dry mortgages, so the only legitimate transfers

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to purchase mortgages for Ocala were those made to an account specified on a bailee letter

from the lender who provided the wet funding for the mortgage.  Because Colonial was the

source of wet funding for TBW, BOA knew that there was only one such account—Account

No. 8026069354 held at Colonial called the Investor Funding Account (the “Colonial IFA”)—

into which Ocala funds could be transferred to purchase mortgages for Ocala.  BOA

nonetheless transferred hundreds of millions of dollars of DB’s investment to other accounts

with no connection to Ocala’s purchase of mortgages.  Further, notwithstanding the express

prohibition on Ocala’s purchase of wet mortgages, BOA nonetheless transferred more than $1.7

billion to a TBW account that BOA knew was used for wet funding of mortgages.  Finally,

even when BOA transferred funds to the Colonial IFA, the size of the transfers, contrary to the

requirements of the Ocala transaction documents, usually bore no relationship at all to the value

of mortgages that BOA understood were to be purchased by Ocala.

15. Second, BOA failed to track and document properly the purchase and sale of

mortgages as would be required for it to report accurately and protect adequately the Secured

Parties’ beneficial interest in the mortgages.  As late as July 2009, BOA represented to DB that

BOA had control of mortgages valued at over one billion dollars securing DB’s investment.  In

August 2009, following the bankruptcy of TBW, it was revealed that with respect to the great

majority of those mortgages, BOA either never had control of them in the first place or already

had sold them to Freddie Mac.

16. Third, BOA breached its express obligation to be able at all times to report to

Ocala and its investors the status of mortgages held by BOA for the benefit of the investors.

Not only did BOA breach this duty, it actually reported on a daily basis to DB that BOA was

holding certain loans as security for DB’s investment when, in reality, these loans already had

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been sold to third parties.  These misrepresentations led DB to believe that its investment was

at all times secured by $1.25 billion of collateral and hid the fact that an event of default

already had occurred under the Ocala facility documents that would have given DB the right to

accelerate the repayment of DB’s investment.

17. Fourth, BOA knew or should have known that the Borrowing Base Condition

was not satisfied for many months prior to the ultimate shut-down of the Ocala facility in

August 2009.  Yet, during that period BOA repeatedly certified and/or confirmed that the

Borrowing Base Condition was satisfied.  As a result, DB’s investment continued to roll over

on a monthly basis, and BOA continued to transfer funds out of Ocala that would have been

frozen had BOA correctly reported that the Borrowing Base Condition was not satisfied.

18. Fifth, BOA failed to segregate and account for the cash and collateral securing

DB’s investment.  The Ocala transaction documents required that funds invested by DB and

BNP and all mortgages purchased with such funds were to be accounted for separately to

protect DB’s and BNP’s security interests in their respective investments.  BOA nonetheless

regularly commingled the funds and failed to segregate effectively the parties’ collateral.  As a

result, BOA has been unable to allocate between DB and BNP what cash and collateral remains

in the Ocala accounts at BOA.

19. In short, BOA had the responsibility for (1) taking possession of mortgages,

checking them for completeness and compliance with the Ocala requirements, (2) paying for

fully-documented and executed mortgages by sending the appropriate amount to the Colonial

IFA, (3) preventing the transfer of Ocala funds for any purpose beyond what was contractually

specified, (4) ensuring that mortgages thus purchased remained within BOA’s control and/or

subject to a BOA lien until BOA obtained payment for such mortgages from a third party, (5)

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reporting accurately to DB the status of the collateral, (6) properly segregating the collateral

securing DB’s and BNP’s respective investments, and (7) renewing those investments on a

monthly basis only if the borrowing base fully secured those investments.  BOA failed to

comply with its contractual obligation to perform these tasks and to do so with due care.

20. Instead, BOA’s breaches of its contractual obligations and negligent acts and

omissions were the direct and proximate cause of the loss of DB’s investment in Ocala.  On

August 20, 2009, based upon an event of default, the Ocala ABCP held by DB totaling

$1,201,785,714 became immediately due and payable.  As a direct result of BOA’s contractual

breaches, Ocala was unable to pay this amount and failed to pay this amount to DB.  This

Complaint seeks to remedy that wrong.

PARTIES

21. Deutsche Bank is a bank organized under the laws of the Federal Republic of

Germany with a branch at 60 Wall Street, New York, New York 10005.

22. Bank of America is a bank organized under the laws of the State of North

Carolina with a branch a 9 West 57th Street, New York, New York 10019.  Bank of America is

successor in interest to LaSalle Bank, National Association, and assumed, by operation of law,

all of the liabilities and obligations of LaSalle Bank, National Association.  BOA has done and

is doing business in the State of New York.

JURISDICTION

23. Personal jurisdiction over the defendant is proper in this Court because Bank of

America conducts business in New York and has agreed in Section 10.09 of the Second

Amended and Restated Security Agreement to irrevocably and unconditionally submit itself to

the jurisdiction of this Court.

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24. This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) as the

controversy is between a citizen of a State and a citizen of a foreign state and Plaintiff seeks

damages in an amount well in excess of $75,000.

25. Venue is proper under 28 U.S.C. § 1391(a), as BOA is a corporation subject to

personal jurisdiction in this District, and therefore is deemed a resident of this District pursuant

to 28 U.S.C. § 1391(a).

26. Venue in this district is also proper because BOA consented to the jurisdiction

of this Court pursuant to Section 10.09 of the Second Amended and Restated Security

Agreement, which provides:

EACH PARTY HERETO HEREBY SUBMITS TO THE

NONEXCLUSIVE JURISDICTION OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW

YORK AND OF ANY NEW YORK STATE COURT SITTING IN

NEW YORK CITY FOR PURPOSES OF ALL LEGAL

PROCEEDINGS ARISING OUT OF OR RELATING TO THIS

AGREEMENT OR THE TRANSACTIONS CONTEMPLATED

HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES,

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY

OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO

THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING

BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY

SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS

BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH

PARTY HERETO HEREBY CONSENTS TO PROCESS BEING

SERVED IN ANY SUIT, ACTION OR PROCEEDING WITH

RESPECT TO THIS AGREEMENT, OR ANY DOCUMENT

DELIVERED PURSUANT HERETO BY THE MAILING OF A

COPY THEREOF BY REGISTERED OR CERTIFIED MAIL,

POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO ITS

RESPECTIVE ADDRESS SPECIFIED AT THE TIME FOR

NOTICES UNDER THIS AGREEMENT OR TO ANY OTHER

ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN OR

ELECTRONIC NOTICE TO THE OTHER PARTIES. THE

FOREGOING SHALL NOT LIMIT THE ABILITY OF ANY

PARTY HERETO TO BRING SUIT IN THE COURTS OF ANY JURISDICTION.

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Section 17 of the Series 2008-1 Depositary Agreement contains a substantially similar forum

selection provision.

FACTUAL ALEGATIONS

I. Introduction

27. Prior to filing for protection under Chapter 11 of the United States Bankruptcy

Code on August 25, 2009, TBW had been the 12th-largest mortgage originator in the U.S. and

third largest source for FHA loans, and had originated thousands of residential mortgages each

year.  As of August 4, 2009, TBW was servicing more than 400,000 mortgages with unpaid

principal balances in excess of $80 billion.

28. In order to originate mortgages in such volumes, TBW required access to

abundant and reliable financing.  In or about April 2005, the Ocala facility was created by

Lehman Brothers, at the direction of TBW, to serve as a single-seller whole-loan mortgage

warehouse conduit for TBW.  Ocala would issue and sell ABCP, the proceeds of which were to

be used to provide financing for fixed-rate Freddie Mac conforming mortgages originated by TBW.

29. On December 13, 2007, DB purchased $750 million of ABCP issued by Ocala

in the form of “Secured Liquidity Notes.”

30. Around six months later, on June 30, 2008, DB agreed to invest an additional

$450 million in Ocala’s ABCP.  Following this additional investment, DB held Secured

Liquidity Notes with a face value of $1,201,785,714.  Also on June 30, 2008, BNP purchased

Secured Liquidity Notes with a face value of $480,700,000.

31. Both DB and BNP renewed their investments in the Ocala ABCP on June 30, 2009.

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32. The Secured Liquidity Notes purchased by DB were designated “Series 2008-1”

(such notes are hereinafter referred to as “DB Secured Liquidity Notes”).  The collateral

securing DB’s investment was also identified with the designation “Series 2008-1.”

33. The Secured Liquidity Notes purchased by BNP were designated “Series 2005-

1” (such notes are hereinafter referred to as “BNP Secured Liquidity Notes”).  The collateral

securing BNP’s investment was also identified with the designation “Series 2005-1.”

34. The Secured Liquidity Notes, Ocala’s use of the funds provided to it thereby,

and other critical aspects of the Ocala facility were established and governed by a set of

agreements entered into on or about June 30, 2008 (“Ocala Agreements”).  The Ocala

Agreements amended and restated the agreements that had governed the Ocala facility prior to

June 30, 2008.

35. The basic operation of the Ocala facility was fairly straightforward.  Using the

funds that had been invested by DB, Ocala was to purchase dry mortgages from TBW.  Any

mortgages thus acquired would constitute collateral securing DB’s investment.  Ocala would

then sell the mortgages to Freddie Mac.  The proceeds of such sales also constituted collateral

securing DB’s investment.  As long as the Borrowing Base Condition was satisfied, the

proceeds of such sales could be used by Ocala to purchase additional mortgages from TBW,

and the cycle would begin anew.

36. A set of “Swap Agreements” served to transfer to TBW all market risk relating

to the mortgages purchased by Ocala.  Whether mortgages were sold for more or less than

expected, under the Swap Agreements, it would have no ultimate consequence for the value of

the DB Collateral or DB’s return on its investment.  The strict over-collateralization

requirements in conjunction with the Swap Agreements provided assurance that when DB

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redeemed the DB Secured Liquidity Notes, it would recover its entire $1.2 billion principal investment.

37. In short, as long as BOA performed its various roles under the Ocala

Agreements with appropriate care, DB’s principal investment was to be fully secured and

protected, and DB would receive the interest payments provided for in the Secured Liquidity Notes.

II. The Ocala Agreements

38. The Ocala Agreements executed on or about June 30, 2008 included the following:

a. The Second Amended and Restated Mortgage Loan Purchase and

Servicing Agreement (“MLPSA”) was entered into between Ocala, as Purchaser, and TBW, as

Seller and Servicer.  DB was expressly designated as a third-party beneficiary of the MLPSA in

Section 12.15.

b.  The Second Amended and Restated Security Agreement (“Security

Agreement”) was entered into between Ocala, as Issuer, and BOA, as Indenture Trustee and

Custodian.  DB was expressly designated as a third-party beneficiary of the Security

Agreement in Section 10.18.

c. The Second Amended and Restated Custodial Agreement (“Custodial

Agreement”) was entered into among Ocala, as Issuer, TBW, as Seller and Servicer, and BOA,

as Custodian and Collateral Agent.  DB was expressly designated as a third-party beneficiary of

the Custodial Agreement in Section 25.  Furthermore BOA, as Custodial Agent, agreed to

indemnify DB against any losses that DB may sustain to the extent attributable to BOA’s

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“negligence, fraud, bad faith or willful misconduct” in the performance of its duties as

Custodial Agent.  Custodial Agreement § 17.

d. The Second Amended and Restated Base Indenture (“Base Indenture”)

and the Series 2008-1 Supplement to the Base Indenture were entered into between Ocala, as

Issuer, and BOA, as Indenture Trustee and Paying Agent.  DB was expressly designated as a

third-party beneficiary of the Base Indenture in Section 13.20.

e. The Series 2008-1 Depositary Agreement (“Depositary Agreement”)

was entered into between Ocala, as Issuer, and BOA, as Series 2008-1 Depositary.  DB is a

third party beneficiary of the Depositary Agreement pursuant to an indemnification provision in

Section 8(g).  Furthermore, the Indenture Trustee is a third-party beneficiary of the Depositary

Agreement that may enforce its provisions under Section 15.  DB, as the beneficiary of the

Base Indenture, may enforce the rights of the Indenture Trustee under the Depositary

Agreement because BOA’s dual role as both Indenture Trustee and Depositary Agent creates,

with respect to the Depositary Agreement, a conflict of interest for BOA as Indenture Trustee.

III. Parties to the Ocala Agreements

39. The parties to the Ocala Agreements each performed multiple roles with respect to the Ocala facility.

40. DB, by virtue of its investment of $1.2 billion and acquisition of the DB Secured

Liquidity Notes, obtained rights and privileges under the Ocala Agreements as a “Noteholder,”

a “Series 2008-1 Senior Noteholder,” a “Required Senior Noteholder,” and a “Secured Party.” 

41. DB also was a party to the Swap Agreements that served to relieve investors in

Ocala’s ABCP of market risk relating to the mortgages acquired by Ocala.  Pursuant to those

agreements, DB held the roles of “Front Swap Counterparty” and “Back Swap Counterparty.”

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DB’s participation in these two agreements was part of an arrangement that served to transfer

all market risk regarding the value of mortgages from Ocala to DB, and then from DB to TBW.

42. Ocala primarily performed three roles.

a. As “Purchaser,” Ocala would buy from TBW mortgages that would then

be sold directly or indirectly to Freddie Mac.

b. As “Issuer,” Ocala issued ABCP, including the Secured Liquidity Notes.

c. As “Front Swap Counterparty,” Ocala was insulated against any market

risk.  Ocala would not have to absorb various types of potential losses on the mortgages, and by

the same token, would not be able to retain potential profits on the mortgages.

43. TBW primarily performed three roles.

a. As “Seller,” TBW would originate mortgages and sell those mortgages to Ocala.

b. As “Servicer,” TBW serviced loans held by Ocala, performing such

functions as collecting monthly loan payments from mortgagees, handling mortgagees’ escrow

accounts, and paying taxes and insurance from such escrow accounts.

c. As “Back Swap Counterparty,” TBW took on all market risk related to

DB’s investment by agreeing to absorb various types of potential losses on the mortgages. By

the same token, TBW would receive any potential profits on the mortgages.

44. BOA assumed several pivotal roles through which BOA was to secure the DB

Collateral, as well as manage and oversee the accounts into which proceeds from the sales of

loans by Ocala were deposited and from which payments for the purchase of mortgages were drawn:

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a. As “Collateral Agent,” BOA assumed responsibility to hold for the

benefit of DB the security interest in mortgages purchased by Ocala using funds invested by

DB, among other responsibilities, and was authorized to serve as an agent of DB.  As Collateral

Agent, BOA also held and controlled the funds generated by DB’s investment and the

subsequent sale of mortgages, and was permitted to transfer those funds only under certain

specified conditions and for limited purposes.  See Security Agreement §§ 4.01-4.10, 5.01-5.07.

b. As “Custodian,” BOA assumed responsibility to review loan files before

they were purchased by Ocala to ensure they complied with the Ocala Agreements, among

other responsibilities, and was required to take possession of the mortgages and loan documents

acquired by Ocala and hold them for the benefit of the Collateral Agent as representative of

DB.  See Custodial Agreement §§ 3, 20.

c. As “Indenture Trustee,” BOA assumed numerous responsibilities in

connection with the Ocala facility, including the establishment and maintenance of accounts

necessary to allocate and distribute interest payable to the Ocala investors.  Base Indenture §

5.1; Base Indenture Supplement § 3.5(a), (b).

d. As “Depositary,” BOA was required, among other responsibilities, to roll

over the Secured Liquidity Notes on a monthly basis only after certifying that (i) it had all the

necessary information to certify the Borrowing Base Condition and (ii) the Borrowing Base

Condition was, in fact, satisfied.

e. As “Paying Agent,” BOA assumed responsibility to pay DB amounts

owed to it pursuant to the Ocala Agreements.  Base Indenture Supplement §§ 3.3(b), (d); 3.4(b), (d).

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IV. Cash and Collateral Cycle

45. The Ocala Agreements and various bailee letters accompanying the transfer of

mortgages established a predictable cycle of cash and collateral through the Ocala facility.

46. TBW would originate a mortgage with wet funding provided by Colonial, i.e.,

TBW would transfer Colonial funds to the borrower at the closing while the loan documents

were still being signed.

47. In exchange for providing the funds for the closing, Colonial obtained a security

interest in the mortgage thus originated.  Once closing was complete and the promissory note

and other loan documents had all been signed, the complete set of loan documents was

delivered to Colonial.

48. After receiving the loan documents, Colonial would then deliver the loan

documents to BOA as Custodian for Ocala accompanied by a bailee letter (“Colonial Bailee

Letter”) indicating that the loan documents were being transferred under bailment, subject to

Colonial’s security interest.  The Colonial Bailee Letter provided that Colonial would release

its security interest in the loan documents upon payment of and confirmed receipt of a specified

“takeout amount” that represented Ocala’s purchase of the mortgages.  The Colonial Bailee

Letter provided very precise instructions to BOA as to how payment was to be made, and

explicitly stated that Colonial’s security interest in the loan documents would be released only

if BOA made full payment “as set forth” in the Colonial Bailee Letter.  The Colonial Bailee

Letters required that the necessary payment be transmitted to the Colonial IFA.

49. The Ocala Agreements required TBW to provide BOA with a Transfer

Supplement, which was a list of mortgages that TBW proposed that Ocala purchase on any given day.

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50. Within two business days of receipt of the loan documents (via the Colonial

Bailee Letter) for the mortgages listed on the applicable Transfer Supplement, BOA, as

Custodian, was required to review the loan documents and deliver a certificate to the Collateral

Agent (also BOA) certifying whether it had received all of the loan documents related to the

mortgage to be purchased and specifying any deficiencies in the loan documents.

51. Once BOA, as Custodian, confirmed that the loan documents were complete

(i.e., that the mortgages were now dry), BOA, as Collateral Agent, was to transmit to Colonial

the takeout amount, drawn on the appropriate sub-account of the Ocala collateral account

(“Collateral Account”) held at BOA—the sub-account either of DB (the “DB Sub-Account

or BNP (the “BNP Sub-Account”).

52. BOA was permitted to transfer funds to Colonial only after it had confirmed that

BOA was in possession of all necessary loan documents such that once BOA paid the correct

take-out amount, it would become the owner of the mortgages for the benefit of Ocala.

53. Pursuant to the Colonial Bailee Letter, once BOA transmitted the correct takeout

amount to Colonial in accordance with the instructions in the Colonial Bailee Letter, Colonial’s

security interest in the loan documents would be released.

54. By operation of the Ocala Agreements, Ocala immediately pledged any

mortgage thus purchased, including the loan documents, to BOA as the Collateral Agent on

behalf of the appropriate Secured Party under the Security Agreement.

55. The Ocala facility was not permitted to hold mortgages and loan documents for

longer than sixty (60) days, and only 10% by value of the mortgages held by Ocala were

permitted to be held longer than thirty days.   MLPSA, Ex. H.  The expectation of all parties

was that shortly after purchasing a mortgage, Ocala would sell the mortgage to Freddie Mac.

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56. At the start of the sale process, BOA, as Collateral Agent, would deliver the loan

files to Colonial subject to a form of bailee letter required by the Custodial Agreement (“BOA

Bailee Letter”).  Custodial Agreement, Ex. E.  The BOA Bailee Letter specified that BOA

retained its security interest in the loan documents until payment was made pursuant to the

instructions in the letter.  The BOA Bailee Letter required that, within fifteen days, Colonial, as

Freddie Mac’s agent, either return the mortgages or remit payment.

57. Freddie Mac could pay for the mortgages in two ways.  First, if Freddie Mac

were simply purchasing the mortgage for its own account, it would pay with cash deposited

directly into the Ocala Collateral Account at BOA.  Alternatively, if mortgages acquired by

Freddie Mac were part of a group of mortgages being bundled together as part of a

securitization, Freddie Mac would deliver a trust certificate to Bank of New York, the securities

clearing agent, who would transmit the proceeds of the sale of this certificate to Colonial,

which would then in turn transmit the proceeds to the Ocala Collateral Account.

58. BOA’s security interest in the mortgages was to be released only upon payment

by Colonial of the purchase price specified in the applicable BOA Bailee Letter.

59. The proceeds of the sale of the mortgage to Freddie Mac were then to be

deposited in the sub-account of the Ocala Collateral Account from which the funds to purchase

that mortgage originally had been drawn.

V. BOA’s Breach of Its Contractual Duties

60. BOA—like all of the parties to the Ocala Agreements—understood and agreed

that the primary “purpose” of the Security Agreement, as clearly stated in its Recitals, was

“securing and providing for the repayment of all amounts at any time and from time to time

owing by the Issuer to each [Secured Party].”  Indeed, the entire Ocala facility was directed at

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only two purposes: to provide liquidity for TBW to originate mortgages and to protect the

Secured Parties’ investment.

61. BOA’s responsibilities and duties under the Ocala Agreements were likewise

intended to provide multiple layers of protection to preserve the Secured Parties’ investment.

BOA was required to carry out these responsibilities and duties with appropriate care, and each

one of the Ocala Agreements provided that BOA could be liable in the event it performed those

duties negligently.

62. With respect to virtually every key contractual duty required of it under the

Ocala Agreements, BOA failed to act with appropriate care.  BOA’s negligence subverted the

key protections upon which DB depended.  BOA’s breaches of its contractual duties and

negligence in performing those duties caused DB’s investment in Ocala to become severely

under-collateralized and directly has resulted in Ocala being unable to pay amounts owed to

DB under the DB Secured Liquidity Notes.

A. Improper Transfer of Funds from the Collateral Account

63. To protect the funds in the Collateral Account and DB Sub-Account that

ultimately would be used to repay the approximate $1.2 billion in principal invested by DB, the

Ocala Agreements imposed very strict and very clear restrictions on the purposes for which the

funds could be used.

64. Section 8.28 of the Base Indenture permitted funds invested by DB to be used

for two, and only two, purposes:

Section 8.28   Use of Proceeds of Notes.  The

Issuer shall use the proceeds of Notes solely for

one or more of the following purposes: (a) to pay

the Issuer’s Obligations when due, in accordance

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with the Security Agreement; and (b) to acquire

Mortgage Loans from the Seller.

65. Control of all of the funds invested by DB was entrusted to BOA, as Collateral

Agent.  Section 5.01 of the Security Agreement provides that BOA as Collateral Agent was

required to maintain “a special purpose trust account in the name of and under the control of,

the Collection Agent on behalf of the Secured Parties (said account being herein called the

“Collateral Account” . . .) and sub-accounts thereof for each of the Series 2005-1 Purchased

Assets and the Series 2008-1 Purchased Assets.”

66. Section 5.01 of the Security Agreement further provides that BOA, as Collateral

Agent, “shall have complete dominion and control over the Collateral Account and the Issuer

hereby agrees that only the Collateral Agent may make withdrawals from the Collateral Account.”

67. Section 5.03 of the Security Agreement authorizes BOA to make withdrawals or

transfers from the Collateral Account and/or DB and BNP Sub-Accounts only for certain

enumerated purposes.  The only permitted transfers out of the Collateral Account and/or the

DB and BNP Sub-Accounts for purposes other than the purchase of mortgages were limited

transfers to Ocala swap transaction participants and the holders of Ocala ABCP and

subordinated notes in accordance with the Ocala Agreements.  The only legitimate transfer out

of the Collateral Account and/or the DB and BNP Sub-Accounts to third parties other than

those swap transaction participants and the holders of Ocala ABCP and subordinated notes was

for the purchase of dry mortgages.

68. BOA knew that the only manner in which dry mortgages could be purchased

from TBW was through payments to the Colonial IFA.  BOA knew this because all mortgages

TBW delivered to BOA as Custodian for review and potential purchase by Ocala were

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accompanied by Colonial Bailee Letters specifying that payment for the mortgages had to be

directed to the Colonial IFA, and that only payment to that exact account would result in the

release of Colonial’s security interest in the mortgages.

69. Despite this knowledge, since June 30, 2008, BOA nonetheless transferred more

than $3.7 billion from the Collateral Account and/or the DB and BNP Sub-Accounts to

accounts that had no legitimate basis for receiving such funds under the Security Agreement

and that were not related to the purchase of dry mortgages for Ocala.  These improper transfers included:

a. Approximately $1.7 billion to TBW Account No. 722347.2 (the “Wet

Funding Account”) held at BOA that was used to provide wet funding for mortgages.

b. Approximately $837 million to a “FHLMC P&I Custodial Account,” an

account to accumulate principal and interest for loans serviced by TBW for Freddie Mac;

c. Approximately $675 million to a “Custodial Funds Clearing Account,”

an account for the initial deposit of funds relating to mortgages serviced by TBW;

d. Approximately $445 million to a “Colonial Master Account,” an account

to fund loans made to settlement agents (i.e., the title company or attorney closing the loan for TBW);

e. Approximately $58 million to a “Colonial Operating Account,” an

account to fund TBW’s operating expenses; and

f. Approximately $2.5 million to an “ITF Henley Holdings Account,” an

account to accumulate principal and interest relating to loans serviced for Henley Holdings LLC.

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70. These unauthorized transfers began on July 1, 2008, the day after the Ocala

Agreements became effective, and continued through August 2009.

71. Moreover, between June 30, 2008 and August 4, 2009, BOA transferred over $1

billion to Colonial and other banks in numerous transfers of whole/round number amounts that

bore no relation to any purchase of mortgages.  Whole/round number transfers to purchase

mortgages would be highly unusual because the aggregation of individual mortgages

themselves would not typically be expected to result in whole/round number amounts.

72. Furthermore, the payments made by BOA to the Colonial IFA on a daily basis

bore no relationship to the value of the mortgages being purchased.  On average, BOA, on

behalf of Ocala, would receive approximately $40-50 million of mortgages for purchase each

day.  In order to pay for those mortgages, BOA was required to pay an amount equal to the face

value of the mortgages to the Colonial IFA.

73. On some days, BOA failed to transmit the funds to the Colonial IFA necessary

to complete the purchase of those mortgages.  For example, on February 27, 2009, BOA

transmitted only $8.8 million to Colonial despite the fact that BOA’s records indicated that

$54.5 million in mortgages were acquired from Colonial that day for the benefit of DB.  By

failing to transmit payment for the mortgages, BOA prevented Ocala from perfecting the

security interests in those mortgages that was intended to serve as the primary collateral for

DB’s investment.  BOA nonetheless represented in daily reports to DB that the security

interests had been perfected by accounting for the mortgages as collateral securing DB’s investment.

74. On other days, BOA transmitted far more money to the Colonial IFA than was

warranted to purchase the mortgages that BOA’s records indicate were acquired by BOA for

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the benefit of Ocala.  For example, on May 29, 2009, BOA transmitted the large sum of $690

million to the Colonial IFA, despite the fact that BOA’s own records indicate that only $36.7

million in mortgages were acquired from Colonial that day for the benefit of Ocala.  By

conducting such transfers, BOA permitted the funds invested by DB to be transferred out of

Ocala without obtaining mortgages in return.

75. Prior to June 30, 2008, the agreements governing Ocala permitted it to purchase

wet mortgages, and, prior to June 30, 2008, BOA regularly transferred Ocala funds to the Wet

Funding Account to purchase wet mortgages.

76. The Ocala Agreements that became effective on June 30, 2008, however,

prohibited the purchase of wet mortgages and, therefore, prohibited the transfer of Ocala funds

to the Wet Funding Account.  After June 30, 2008, BOA disregarded this requirement and

nonetheless continued to transfer Ocala funds to the Wet Funding Account in contravention of

the Ocala Agreements.  In fact, on July 1, 2008, the day after the Ocala Agreements became

effective, BOA transferred $63,939,570 from the DB Sub-Account to the Wet Funding

Account.

77. The transfer of funds by BOA out of the Collateral Account and/or DB and BNP

Sub-Accounts to accounts that BOA knew or should have known had no permissible purpose,

and to the Colonial IFA in amounts that bore no relationship to the value of mortgages

supposedly being purchased, was a direct cause of the loss of the DB Collateral and, therefore,

the loss of a substantial portion of DB’s investment in Ocala.

78. Under the Security Agreement, BOA was not authorized to release any Ocala

funds for the purchase of mortgages unless the Borrowing Base Condition was satisfied.  From

June 30, 2008 through August 2009, BOA regularly breached its obligation to ensure that no

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funds were transferred from the Ocala Collateral Account or the DB or BNP Sub-Accounts

when the Borrowing Base Condition was not satisfied.  BOA’s transfer of Ocala funds out of

the Collateral Account the DB or BNP Sub-Accounts in contravention of this obligation

directly and proximately caused the loss of a substantial portion of DB’s investment in Ocala.

B. BOA’s Misrepresentations of the State of DB Collateral

79. As both Custodian and Collateral Agent, BOA was required to know at all times

which mortgages it physically held at its facility, which mortgages had been delivered under

the required BOA Bailee Letter and which mortgages had been purchased by third parties. 

80. During the summer of 2008, DB requested that BOA provide it with a daily list

of the mortgage loans and cash held by BOA as DB Collateral, so that DB would know on a

daily basis that its investment was secured by $1.25 billion of collateral in accordance with the

Ocala Agreements.

81. BOA was required under the Custodial Agreement to have such information

readily available.  Section 9.1 of the Custodial Agreement required BOA to be able to provide

to Ocala, upon one business day’s notice, a list of all mortgages held for the benefit of DB,

including all mortgages “paid off, repurchased, sold or otherwise released by [BOA].”

Custodial Agreement § 9.1.  In other words, BOA was required to be able to tell Ocala and its

investors at any given time the status of the mortgages held by BOA as collateral for the benefit of investors.

82. In connection with its duties under the Custodial Agreement, BOA agreed to

provide DB with a daily report of all such mortgage loans (the “BOA Loan Reports”), and

began transmitting these reports to DB in September 2008.  The BOA Loan Reports listed each

mortgage loan held by BOA for the benefit of DB, and noted whether the loan was either still

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in the physical possession of BOA or out to a prospective third party purchaser pursuant to a

BOA Bailee Letter.  Having assumed this additional daily reporting obligation, BOA was

required to perform it in a non-negligent manner.

83. In August 2009, after TBW collapsed, DB discovered that the BOA Loan

Reports were false.  For example, the August 12, 2009 BOA Loan Report showed that there

was approximately $1,160,530,265 in mortgages securing DB’s investment.  BOA’s own

internal information, however, shows that at least $470 million of these mortgages already had

been delivered and sold to Freddie Mac at least two weeks prior to the date of the BOA Loan

Report and so could not have constituted collateral securing DB’s investment.  Further, on

information and belief, as of August 12, 2009, there were virtually no mortgages held by BOA

to secure DB’s investment.

84. This false reporting of the state of the collateral securing DB’s investment began

almost a year prior to TBW’s collapse.  For example, on September 15, 2008, the date on

which BOA delivered the first BOA Loan Report, BOA represented that the amount of

mortgages securing DB’s investment was approximately $1,147,268,192.  BOA’s own internal

information, however, shows that only about half of these mortgages totaling about $538

million were either still on hand or had not been delivered and/or sold to Freddie Mac.

85. On information and belief, hundreds (and potentially all) of the BOA Loan

Reports delivered by BOA to DB during the period between September 15, 2008 and August 4,

2009 were similarly false.

86. Had BOA properly reported the amount of mortgages securing DB’s investment,

DB would have known of the under-collateralization of its investment, and could have

prevented the loss of its investment.

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C. BOA’s Failure to Secure the Mortgages

87. As both Custodian and Collateral Agent, BOA was responsible for maintaining

custody and control of the mortgages that secured DB’s investment.

88. In August 2009, however, after TBW and Colonial collapsed, DB discovered

that BOA did not have ownership, possession, or control of virtually any of the mortgages that

were listed on the BOA Loan Reports.

89. BOA has been unable to produce the mortgages that it represented to DB as

being held by BOA on behalf of DB.  Moreover, BOA has been unable to account for where

the mortgages are or even to establish that the mortgages were ever purchased by Ocala. 

90. BOA’s inability to produce or account for the mortgages that were supposed to

be the collateral for DB’s investment stems from, among other things, BOA’s failure to keep

records concerning the purchase and sale of mortgages on behalf of Ocala.

91. With respect to the purchase of mortgages, BOA failed to maintain the internal

documentation necessary to establish Ocala’s ownership of purchased mortgages.  BOA

recently admitted to DB that it failed to maintain loan level detail with respect to the mortgages

it purchased.  As such, BOA has been unable to prove with specificity that it paid for any

particular mortgage or that it was paid by third parties for particular mortgages.

92. BOA also failed to obtain documentation from third parties necessary to

establish Ocala’s purchase and ownership of mortgages.  BOA failed to obtain letters from

Colonial confirming Colonial’s release of its security interest with respect to particular

mortgages for which BOA transmitted payment to Colonial.

93. BOA’s failure to obtain such documentation was particularly egregious because

BOA was fully aware that Colonial was TBW’s and/or Freddie Mac’s agent with respect to the

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sale of mortgages by Ocala to Freddie Mac.  BOA, therefore, would have to transfer mortgages

back to Colonial (as Freddie Mac’s agent) pursuant to a BOA Bailee Letter after having

purchased the mortgages from Colonial (as TBW’s agent).  The possibility existed that once

BOA transferred the mortgages to Colonial, Colonial could assert ownership of the mortgages

and refuse to either return the mortgages or remit payment received from Freddie Mac for the

mortgages unless BOA could prove that Colonial’s security interest had been released.  This

made it even more critical that BOA document that it properly had taken the steps necessary to

release Colonial’s security interest in the mortgages, and that Colonial had in fact released that interest.

94. On information and belief, Colonial, and/or the Federal Deposit Insurance

Corporation (“FDIC”) acting as receiver for Colonial, asserts that mortgages for which BOA

claimed to have paid Colonial, and in which BOA claimed to hold a security interest on behalf

of DB, in fact, belonged to Colonial.  Colonial, and/or the FDIC acting as receiver for Colonial,

contend that BOA never remitted payment to Colonial as required in the Colonial Bailee

Letters pursuant to which the mortgages had initially been transferred by Colonial to BOA. 

95. BOA also failed to maintain proper documentation and to track mortgages over

which it had asserted control and that it subsequently released to prospective third-party purchasers.

96. Pursuant to Section 8 of the Custodial Agreement, BOA as Custodian was

authorized to release mortgages to prospective third-party purchasers only if BOA

accompanied delivery of the mortgage with a BOA Bailee Letter to be executed by the

purchaser.  BOA was further required to collect all transmittal letters executed by prospective

third-party purchasers.

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97. The contractually-required form of the BOA Bailee Letter was set forth in

Exhibit E to the Custodial Agreement, and provided that the third-party purchaser either return

the mortgage or remit the sales proceeds within fifteen days from the date of the letter.  Section

8 of the Custodial Agreement further required that if a prospective third-party purchaser to

whom BOA as Custodian delivered mortgages for review did not proceed with the proposed

purchase, the mortgages were to be returned promptly to BOA as Custodian.

98. BOA as Custodian and Collateral Agent failed to ensure that third-party

purchasers to whom it had transmitted loans for purchase complied with the fifteen-day time

period.  On information and belief, BOA failed even to collect executed copies of transmittal

letters.  The failure of BOA as Custodian and Collateral Agent to promptly recover the

mortgages from third-party purchasers after the fifteen-day time period had passed was a

breach of BOA’s contractual duties and duty of due care and violated customary standards

applicable to an entity charged with maintaining continuous custody and control of mortgages.

99. BOA further breached its duties as Custodian and Collateral Agent by failing to

keep track of the Ocala mortgages that were being sold to Freddie Mac.  In connection with

those sales, Freddie Mac required that BOA submit a specific form of release known as Form

996E, which contained a list of the mortgages to be sold to Freddie Mac.  In contravention of

its contractual duties, BOA failed to keep track of or verify when these Form 996Es were being

submitted to Freddie Mac and which Ocala mortgages were to be sold to Freddie Mac.

100. In dereliction of its responsibilities as Custodian and Collateral Agent, BOA

regularly made no effort to recover mortgages worth hundreds of millions of dollars delivered

to prospective third-party purchasers for review, even after sixty days or more had elapsed

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without the prospective purchasers remitting payment or returning the mortgages as required by

the BOA Bailee Letters.

101. By August 12, 2009, BOA had allowed approximately $158 million of

mortgages delivered by it to prospective third-party purchasers to remain outstanding for more

than sixty days, notwithstanding the fifteen-day limit set forth in the BOA Bailee Letters.

When Colonial went into FDIC receivership, it was too late for BOA to recover the mortgages. 

102. As Custodian and Collateral Agent, BOA’s negligent failure to maintain custody

and control of Mortgages in accordance with the Ocala Agreements, the contractually required

BOA Bailee Letters, and customary standards caused the loss of the DB Collateral and,

therefore, the loss of a substantial portion of DB’s investment.

D. BOA’s False Certifications of the Borrowing Base Condition

103. BOA also failed to properly carry out another of its key responsibilities—the

responsibility to review, certify, and/or confirm that the Borrowing Base Condition was met.  If

BOA had correctly calculated the Borrowing Base Condition, it would have been required to

take actions that effectively would have shut down the Ocala facility and prevented any further

depletion of the DB Collateral.

104.  The Borrowing Base Condition was a built-in “circuit breaker” that was

designed to prevent further deterioration of the cash and collateral in the event that the cash and

collateral securing DB’s investment declined to the point that repayment of DB’s principal was at risk.

105. The Borrowing Base Condition was a calculation that essentially measured the

indebtedness of Ocala (primarily consisting of its obligations to noteholders) against its assets

(primarily consisting of cash and mortgages).  This would reveal whether the DB Secured

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Liquidity Notes were adequately secured in accordance with the Ocala Agreements.  If DB’s

investment was not so secured, then the facility would be in violation of the Borrowing Base

Condition, and this would trigger two important consequences: (1) the Secured Liquidity Notes

would not be rolled over, but instead would become immediately due and payable, and/or (2)

no new purchases of mortgages would be permitted, thus halting Ocala’s outlay of further cash,

unless and until the Borrowing Base Condition was again satisfied.

106. It was BOA’s contractual responsibility to ensure that the Borrowing Base

Condition was satisfied before permitting the Secured Liquidity Notes to be rolled over or

permitting Ocala to transfer funds for the purpose of purchasing additional mortgages.

107. Pursuant to Section 4(d) of the Depositary Agreement, BOA as Depositary was

precluded from issuing or delivering any Secured Liquidity Notes unless it received from Ocala

a completed certificate demonstrating that the Borrowing Base Condition was met, and then

BOA “upon review, determined that it can (and it does) certify as to [satisfaction of the

Borrowing Base Condition]”  The Secured Liquidity Notes had a thirty day maturity.  Thus,

each month BOA had the obligation to review and certify a calculation establishing whether the

DB Secured Liquidity Notes were secured by $1.25 billion of collateral.

108. As BOA acknowledged orally to DB and in a letter to BNP dated March 27,

2009, BOA’s duty to certify whether the Borrowing Base Condition was met pursuant to

Section 4(d) of the Depositary Agreement “play[ed] an important role in mitigating the risks”

that the Secured Parties “would otherwise incur.”

109. Furthermore, pursuant to Sections 5.03(a) and (b) of the Security Agreement,

BOA as Collateral Agent was precluded from transferring or withdrawing funds from the

Collateral Account and/or the DB and BNP Sub-Accounts for the purpose of enabling Ocala to

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purchase additional mortgages from TBW unless the Borrowing Base Condition was met.

Thus, on every occasion BOA transferred funds to pay for Ocala’s acquisition of new

mortgages, BOA was required first to confirm whether the DB Secured Liquidity Notes were fully secured.

110. BOA regularly certified and/or confirmed that the Borrowing Base Condition

was met when, based on BOA’s own information, BOA knew or should have known that, in

fact, the Borrowing Base Condition was far from satisfied.  The key to the Borrowing Base

Condition was determining whether Ocala actually held $1.25 billion in cash and mortgages

securing the DB Secured Liquidity Notes.  This was a determination that only BOA could make

because only BOA knew what mortgages it held in its vault and which mortgages already had

been sold to Freddie Mac.  BOA knew what mortgages had been sold to Freddie Mac because,

as a condition of each sale to Freddie Mac, BOA was required to execute a Freddie Mac Form

996E that served as a release of the security interest in the Ocala mortgages to be sold to Freddie Mac.

111. On information and belief, from June 30, 2008, through August 4, 2009, BOA,

on hundreds of occasions, either falsely certified or failed in its contractual duty to confirm that

the Borrowing Base Condition was satisfied.

112. BOA has failed to provide DB with the vast majority of Borrowing Base

Condition certificates.  The few certificates that BOA provided are clearly and demonstrably

false showing that DB’s investment was severely under-collateralized:

a.  On May 20, 2009, BOA certified that it held mortgages worth

$1,134,028,581 as DB Collateral.  In reality, on May 20, 2009, BOA knew or should have

known that it held or had a lien on approximately $547 million in mortgages as DB Collateral.

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b.  On June 20, 2009, BOA certified that it held mortgages worth

$1,208,009,892 as DB Collateral.  In reality, on June 20, 2009, BOA knew or should have

known that it held or had a lien on approximately $440 million in mortgages as DB Collateral.

c.  On June 30, 2009, BOA certified that it held mortgages worth

$1,226,886,314 as DB Collateral.  In reality, on June 30, 2009, BOA knew or should have

known that it held or had a lien on approximately $468 million in mortgages as DB Collateral.

d.  On July 20, 2009, BOA certified that it held mortgages worth $1,216,398,908

as DB Collateral.  In reality, on July 20, 2009, BOA knew or should have known that it held or

had a lien on approximately $476 million in mortgages as DB Collateral.

113. On information and belief, between June 30, 2008 and August 4, 2009, BOA

falsely certified that the Borrowing Base Condition was satisfied at least thirteen times when, in

fact, the Borrowing Base Condition was not satisfied.

114. Had BOA acted with due care in reviewing the Borrowing Base Condition,

BOA would have known that it could not certify and/or confirm that the Borrowing Base

Condition had been met.  By operation of the Ocala Agreements, the “circuit breaker” then

would have tripped, shutting down further financing and further purchases of mortgages and

minimizing losses to the collateral.  BOA’s failure to perform its obligations with respect to

reviewing, certifying, and confirming the Borrowing Base Condition prevented those

safeguards from taking effect, resulting in the loss of a substantial portion of DB’s investment.

E. BOA’s Failure to Segregate Loans and Proceeds

115. The Ocala Agreements required that DB’s investment and BNP’s investment be

kept separate.  This was necessary to ensure that the cash and collateral separately securing the

DB and BNP Secured Liquidity Notes would be identifiable.  If cash and collateral were not

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carefully and accurately identified and segregated, it would be difficult or impossible to know

which Secured Party had a secured interest in any particular cash or collateral, and the

possibility of competing claims could arise.

116. The Security Agreement contained provisions that, if adhered to, would preclude

any chance of such confusion or commingling of funds.  Pursuant to Section 5.01 of the

Security Agreement, BOA as Collateral Agent was required to maintain two distinct sub-

accounts of the Collateral Account; one relating to the Series 2005-1 Collateral (the BNP Sub-

Account) and the other relating to the Series 2008-1 Collateral (the DB Sub-Account).

117. Careful segregation by BOA of cash and collateral was essential not only to

identifying each Secured Party’s individual security interests, but also to key operational

aspects of the Ocala facility.

118. For example, most of the authorized purposes for which funds could be

transferred out of the Collateral Account pursuant to Section 5.03 of the Security Agreement

make reference to the specific DB and BNP Sub-Account from which funds can be drawn to

make such payment.

119. Most critically, Section 5.03 required that only funds from the DB Sub-Account

be used to fund the purchase of Series 2008-1 Mortgage Loans, and, similarly, that only funds

from the BNP Sub-Account be used to fund the purchase of Series 2005-1 Mortgage Loans.

120. Thus, as a practical matter it was also necessary for BOA as Collateral Agent,

Indenture Trustee, and Custodian to track whether mortgages being purchased correlated to

Series 2005-1 or Series 2008-1, because BOA had to ensure that funds were withdrawn from

the appropriate DB or BNP Sub-Account to purchase any given loan, and that the proceeds

from the sale of such a loan were deposited in the appropriate DB and BNP Sub-Account.

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121. BOA acted in disregard of its contractual duty to maintain the DB and BNP Sub-

Accounts separately, and to withdraw from and deposit into the DB and BNP Sub-Accounts the

appropriate funds.  On information and belief, BOA did not just commingle the accounts—it

made no meaningful attempt to segregate either mortgages purchased or the proceeds from sale of mortgages.

122. BOA’s failure to segregate appropriately the mortgages and funds became

evident after an event of default under the Base Indenture was declared in August 2009.  At that

time, BOA had not allocated between the DB and BNP Sub-Accounts what few mortgages and

funds remained in its possession.  BOA’s initial effort at allocation—a simple 50/50 split of

mortgages and funds between the two accounts (disregarding that DB’s investment was more

than twice the size of BNP’s investment) revealed the extent to which BOA had disregarded its

duties to keep loans and mortgages properly segregated.  BOA quickly withdrew that arbitrary

allocation.  To date, BOA has been unable or unwilling to make a proper allocation of the

mortgages and funds.

123. As a result of BOA’s failure to properly segregate the mortgages and funds,

BOA has impaired DB’s security interest in the mortgages and funds that should have properly

been segregated into the DB Sub-Account.  BOA’s continuing delay in allocating the

mortgages and funds has caused and continues to cause damage to DB.

VI. BOA’s Failure to Pay Amounts Due under the Secured Liquidity Notes

Following Ocala Default

124. On or about August 4, 2009, the FHA announced that it had disqualified TBW

from making FHA-insured loans, stating that TBW had failed to submit a required financial

report and to disclose certain irregular transactions that raised concerns of fraud.  Shortly

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thereafter, Freddie Mac and the Government National Mortgage Association terminated TBW

as a servicer of their mortgages and barred TBW from selling mortgages to them.

125. On August 4, 2009, the New York Times reported that the FBI and the Special

Inspector General of the Treasury Department’s Troubled Asset Relief Program had raided

Colonial and TBW.

126. On information and belief, on August 6, 2009, BOA requested that Colonial

return all of the loans held by Colonial pursuant to the BOA Bailee Letters.  The vast majority

of these loans had been out to Colonial on BOA Bailee Letters for more than 60 days, grossly

exceeding the fifteen-day limitation set forth in the BOA Bailee Letter.

127. On August 7, 2009, Colonial BancGroup disclosed that it was the target of a

criminal investigation by the U.S. Department of Justice relating to its mortgage lending unit

and related accounting irregularities, and that it might be placed under receivership.

128. On August 10, 2009, BOA as Indenture Trustee declared an indenture event of

default stating that the notes were due and payable because of TBW’s loss of approved seller status.

129. On August 14, 2009, Colonial was closed by the Alabama State Banking

Department, and the FDIC was named Receiver.

130. On August 20, 2009, the outstanding DB Secured Liquidity Notes in the amount

of $1,201,785,714 held by DB became immediately due and payable.  Ocala has failed to pay

this amount.

131. On August 24, 2009, TBW filed for relief pursuant to Chapter 11 of the United

State Bankruptcy Code in the United States Bankruptcy Court for the Northern District of

Florida.

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132. To date, BOA has failed to recover any DB Collateral and to pay the amounts

due to DB under the DB Secured Liquidity Notes.

COUNT I

BREACH OF CONTRACT (SECURITY AGREEMENT)

133. Plaintiff repeats and realleges each and every allegation above as if fully set

forth herein.

134. DB was expressly designated as a third-party beneficiary of the Security

Agreement.  Security Agreement §§ 10.08, 10.18.

135. BOA understood that a primary “purpose” of the Security Agreement was

“securing and providing for the repayment of all amounts at any time and from time to time

owing by the Issuer to each [Secured Party].”  Security Agreement at 1.

136. The Security Agreement created a continuing security interest in the Collateral

in favor of BOA for the benefit of the Secured Parties.  Security Agreement, Sched. III, § 1.

The Security Agreement provided that BOA, as Collateral Agent, was an agent of each of the

Secured Parties.  Id.

137. BOA was required to exercise due care in performing its duties under the

Security Agreement.  If BOA failed to perform those duties and/or was negligent in performing

those duties, the Security Agreement provides that BOA would be liable to DB for resulting

damages.

a. Pursuant to Section 4.10 of the Security Agreement, BOA is liable for

negligent actions taken or omitted to be taken by it relative to the DB Collateral.

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b. Pursuant to Section 8.01 of the Security Agreement, BOA is liable for

actions taken or omitted to be taken by it as Collateral Agent that are negligent, fraudulent, in

bad faith, or that constitute willful misconduct.

138. BOA breached its duties under the Security Agreement and was negligent in

performing those duties, including by:

a. Failing to ensure that the security interest it held on behalf of the Secured

Parties was perfected by obtaining written confirmation from Colonial that it had released any

security interest in mortgages for which BOA paid Colonial; and

b. Failing to keep accurate and adequately detailed records sufficient to

permit BOA to establish and prove with specificity the security interest it held on behalf of the

Secured Parties.

139. BOA violated the Security Agreement by transferring funds out of the Collateral

Account and/or the DB and BNP Sub-Accounts to accounts and for purposes not specifically

permitted by the relevant provisions of the Security Agreement, including by:

a. Pursuant to Section 8.28 of the Base Indenture, BOA was aware that

Ocala was prohibited from using the proceeds of the Secured Liquidity Notes for any reason

other than (a) to pay obligations owed by Ocala under the Security Agreement to security

holders and (b) to acquire dry mortgages from TBW.

b. BOA was permitted to transfer funds only for the purposes established in

Sections 5.03(a) and (b) of the Security Agreement.  The sole purpose for which funds could be

transferred (other than in connection with the internal operation of the facility) was for the

purchase of dry mortgages.  BOA was aware that dry mortgages could be purchased only by

transfer of funds to the Colonial IFA Account.

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c. BOA transferred hundreds of millions of dollars to accounts that BOA

knew or should have known were unrelated to any of the purposes enumerated in Sections

5.03(a) and (b) of the Security Agreement.  Every transfer by BOA of funds out of the

Collateral Account and/or the DB and BNP Sub-Accounts to such accounts violated Sections

5.03(a) and (b) of the Security Agreement.

d. BOA transferred more than $1.7 billion to the Wet Funding Account for

the purchase of wet mortgages when BOA knew that the Ocala Agreements prohibited the

purchase of wet mortgages.

140. BOA violated Sections 5.03(a) and (b) of the Security Agreement by

transferring funds out of the Collateral Account and/or the DB and BNP Sub-Accounts when

BOA knew or should have known that the Borrowing Base Condition was not satisfied and that

funds in the Collateral Account and/or the DB and BNP Sub-Accounts could therefore not be

used to purchase mortgages.

141. BOA violated Sections 5.01 and 5.03 of the Security Agreement by failing to

properly segregate mortgages it purchased and funds it received from the sale of such

mortgages as between the DB Sub-Account and the BNP Sub-Account.

142. As a result of its contractual breaches, BOA directly and proximately caused the

loss of a substantial portion of the cash and mortgages from which Ocala was required to repay

the DB Secured Liquidity Notes, and to which DB would have had recourse in the event of a

failure by Ocala to repay the DB Secured Liquidity Notes.

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COUNT II

BREACH OF CONTRACT (DEPOSITARY AGREEMENT)

143. Plaintiff repeats and realleges each and every allegation above as if fully set

forth herein.

144. Pursuant to Section 8(g) of the Depositary Agreement, DB is a third party

beneficiary of the Depositary Agreement.  Section 8(g) specifically provides DB the right to be

indemnified for losses to Ocala caused by BOA’s negligence under the Depositary Agreement.

145. Furthermore, Section 15 of the Depositary Agreement provides that the

Indenture Trustee is a third-party beneficiary of the Depositary Agreement that may enforce its

provisions.  The Indenture Trustee is obligated to act for the benefit of the Secured Parties, but

BOA, as Indenture Trustee, is incapable of doing so here due to the fact that BOA has a conflict

and cannot sue itself.  Because BOA faces an irreconcilable conflict rendering it unable to carry

out its duty as Indenture Trustee, DB, as the beneficiary of the Base Indenture, is entitled to

assert the Indenture Trustee’s rights under Section 15 directly against BOA as Depositary.

146. BOA was required to exercise due care in performing its duties under the

Depositary Agreement.  If BOA was negligent in performing those duties, the Depositary

Agreement provides that BOA would be liable to DB for resulting damages.

a. Pursuant to Section 8(d) of the Depositary Agreement, BOA is liable for

actions taken or omitted to be taken by it as Depositary that are negligent, fraudulent, in bad

faith, or that constitute willful misconduct.

b. Pursuant to Section 8(d) of the Depositary Agreement, BOA must

indemnify DB against any losses sustained by the Issuer attributable to BOA’s negligence,

fraud, bad faith, or willful misconduct in the performance of its duties.

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c. Pursuant to Section 11(d) of the Depositary Agreement, BOA is liable

for errors in judgment made by in good faith by a responsible officer if BOA was negligent in

ascertaining the pertinent facts or in making such judgment based on available facts.

147. BOA breached its duties under the Depositary Agreement and was negligent in

performing those duties, including by:

a. Falsely certifying on a monthly basis that the Borrowing Base Condition

was satisfied pursuant to Section 4(d) of the Depositary Agreement when BOA knew or should

have known that the Borrowing Base Condition had not been satisfied.

b. Improperly issuing on a monthly basis new Secured Liquidity Notes

pursuant to Section 4(d) of the Depositary Agreement when BOA knew or should have known

that the Borrowing Base Condition had not been satisfied.

148. As a result of its contractual breaches, BOA directly and proximately caused the

loss of a substantial portion of the cash and mortgages from which Ocala was required to repay

the DB Secured Liquidity Notes, and to which DB would have had recourse in the event of a

failure by Ocala to repay the DB Secured Liquidity Notes.

COUNT III

BREACH OF CONTRACT (CUSTODIAL AGREEMENT)

149. Plaintiff repeats and realleges each and every allegation above as if fully set

forth herein.

150. The Custodial Agreement provides that DB is entitled to the rights and benefits

of the Custodial Agreement and may enforce the provisions of the Custodial Agreement as if it

were a party.  Custodial Agreement § 25.

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151. BOA was required to exercise due care in performing its duties under the

Custodial Agreement.  If BOA failed to perform those duties and/or was negligent in

performing those duties, the Custodial Agreement provides that BOA would be liable to DB for

resulting damages.

a. Pursuant to Section 19(c) of the Custodial Agreement, BOA is liable for

actions taken or omitted to be taken by it as Custodian that are negligent, fraudulent, in bad

faith, or that constitute willful misconduct.

b. Pursuant to Section 17 of the Custodial Agreement, BOA must

indemnify DB as a Secured Party against any losses sustained by Ocala attributable to the

Custodian’s negligence, fraud, bad faith, or willful misconduct in the performance of its duties

as Custodian.

c. Pursuant to Section 6(b)(i) of the Custodial Agreement, BOA was

required to maintain continuous custody and control of the Mortgages on behalf of Ocala

subject to the security interest of the Collateral Agent in accordance with customary standards

for such custody, and was liable for any loss resulting from the Custodian’s negligence or misconduct.

152. BOA violated Section 8 of the Custodial Agreement by either releasing

Mortgages to third-party purchasers without transmittal letters in the form specified by Exhibit

E to the Custodial Agreement and/or by failing to collect from the third-parties the executed

transmittal letters.

153. BOA violated Section 8 of the Custodial Agreement by failing to ensure that

prospective third-party purchasers to whom it had transmitted loans for purchase either returned

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the mortgages or remitted payment for the mortgages within the fifteen day time period set

forth in the required transmittal letters.

154. BOA breached its duties under the Custodial Agreement and was negligent in

performing those duties, including by:

a. Failing to obtain and/or keep records adequate to identify the mortgages

purchased by Ocala and held by BOA;

b. Failing to obtain and/or keep records adequate to demonstrate that

Colonial had released its security interest in mortgages for which BOA transferred payment to

Colonial and of which BOA took possession on behalf of Ocala;

c. Failing to ensure that with respect to mortgages released by BOA to

third-party purchasers as bailees, BOA recovered either the mortgage or the proceeds from the

sale of the mortgage; and

d. Misrepresenting to DB on a daily basis that BOA had custody and

control of DB Collateral over which it knew or should have known it did not have custody or control.

155. BOA negligently performed the daily reporting obligation it expressly undertook

to provide in connection with its performance under the Custodial Agreement.

156. As a result of its contractual breaches, BOA directly and proximately caused the

loss of a substantial portion of the cash and mortgages from which Ocala was required to repay

the DB Secured Liquidity Notes, and to which DB would have had recourse in the event of a

failure by Ocala to repay the DB Secured Liquidity Notes.

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COUNT IV

INDEMNIFICATION

157. Plaintiff repeats and realleges each and every allegation above as if fully set forth herein.

158. Pursuant to Section 8(g) of the Depositary Agreement, Section 17 of the

Custodial Agreement, and Section 8.05 of the Security Agreement, BOA must indemnify DB

against any losses attributable to the BOA’s negligence, fraud, bad faith, or willful misconduct

in the performance of its duties.

159. BOA was negligent in performing its duties as Depositary, Custodian and

Collateral Agent, including by:

a. Falsely certifying on a monthly basis that the Borrowing Base Condition

was satisfied pursuant to Section 4(d) of the Depositary Agreement when BOA knew or should

have known that the Borrowing Base Condition had not been satisfied.

b. Improperly issuing on a monthly basis new Secured Liquidity Notes

pursuant to Section 4(d) of the Depositary Agreement when BOA knew or should have known

that the Borrowing Base Condition had not been satisfied.

c. Failing to obtain and/or keep records adequate to identify the mortgages

purchased by Ocala and held by BOA as Custodian;

d. Failing to obtain and/or keep records adequate to demonstrate that

Colonial had released its security interest in mortgages for which BOA transferred payment to

Colonial and of which BOA took possession on behalf of Ocala;

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e. Failing to ensure that with respect to mortgages released by BOA to

third-party purchasers as bailees, BOA either recovered the mortgage or the proceeds from the

sale of the mortgage; and

f. Providing false reports to DB indicating that BOA had custody and

control of DB Collateral over which it knew or should have known it did not have custody or control.

160. As a result of its negligence, BOA directly and proximately caused the loss of a

substantial portion of the cash and mortgages from which Ocala was required to repay the DB

Secured Liquidity Notes, and to which DB would have had recourse in the event of a failure by

Ocala to repay the DB Secured Liquidity Notes.

161. BOA is required to indemnify DB for this loss and has failed to do so.

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RELIEF REQUESTED

Wherefore, Plaintiff prays for relief and judgment as follows:

a. An award of compensatory damages and other damages available by law

in an amount to be proved at trial, plus pre-judgment interest as permitted by law;

b. An award of Plaintiff’s attorneys’ fees, costs and other expenses; and

c. Such other and further relief as is just and proper.

Dated: November 25, 2009

WILLIAMS & CONNOLLY LLP

By:

William E. McDaniels

Stephen D. Andrews

Stephen P. Sorensen

Daniel M. Dockery 

Katherine O’Connor (KL-0902)

725 Twelfth Street, N.W.

Washington, DC 20005

Telephone: (202) 434-5000

Facsimile: (202) 434-5029

ssorensen@wc.com

sandrews@wc.com

ddockery@wc.com

Attorneys for Plaintiff Deutsche Bank, AG

Case 1:09-cv-09784-UA     Document 1      Filed 11/25/2009     Page 44 of 44

Confessions of a Lifelong-Heroine Addict….(oh well, since I was 6 or 8 I guess, probably not so much before that…)…from Dorothy Gale to Katniss Everdeen

The California Secretary of State having quite literally locked the doors to my running for Senate this year (at least in Tulare and Fresno Counties)—and the California Courts not seeming to offer a sufficient or accessible remedy—I now have time to indulge other (if related) obsessions my life, such as my sufferings from a lifetime of heroine addiction….  

Like almost every other aspect of my life, I blame my mother Alice and grandmother Helen almost equally….

It was my mother and father who, when I was very small, used to take me down by the Thames in Westminster near the Houses of Parliament and show me the statue of Boadicea (aka “Budica”), the last independent Iceni Queen of East Anglia who rebelled and died trying to evict the Roman Conquerors, in whose memory it was said and sung that “Britons never shall be slaves.”  We also took one trip out to Norwich to visit one of the woods where the Iceni supposedly worshipped their own goddess of Victory….called “Budika” in the Ancient British language of the Druids….(my parents were both heavily into historical and comparative linguistics).  Budika/Boadicea in A.D. 60-61 apparently burned Roman Londinium to the ground along with several other cities before being defeated and poisoning herself by the long Roman Road called “Watling Street” which we also visited…. She was a heroine and supposedly a great archer….  

Of course my parents also tried, as heart as their own agitated and addled lives would permit them, to make me aware of a very different heroine, regarding whom they required me to memorize “the Magnificat” from a very early age….”My soul doth magnify the Lord….Abraham and his seed forever…” And yes, the Virgin Mary was indeed a rebellious heroine… and she has remained a heroine to hundreds of millions of people up to the present time….  Later on, I learned to sing the Magnificat and other pieces of Anglo-Catholic “Maryolatry” as a choirboy in the junior Choir at the Church of the Incarnation in Dallas, under the tutelage of the late, Great Russell J. Brydon (who died just a few months after this post was originally written, in September 2012 at the age of 88:

http://www.dallasnews.com/obituary-headlines/20120906-russell-j.-brydon-jr.-longtime-dallas-church-and-temple-organist-dies-at-88.ece

But it was my grandmother Helen who was something of a heroine in my young eyes herself, and it was Helen who introduced me to the very first literary  (as distinct from Historical or Biblical) heroines of whose stories I ever learned in detail: namely Dorothy Gale, Scarlett O’Hara, and the Roman Goddess Diana and her Sacred Temple by Lake Nemi  near Ariccia (Diana was also an archer…)

The path of fictional heroines from Dorothy Gale’s grey home in Kansas to Katniss* Everdeen’s equally grey home in District 12 of Panem took 108 years….from the first publication of the Wizard of Oz in 1900 through the appearance of archer Katniss Everdeen  Hunger Games in 2008**….is really the history of the idealistic dreams and ultimate failure of the 20th century (idealist dreams in Baum’s time giving way to a more cynical realism by 1939, passing through the somewhat confused “liberation” of the 1960s, sinking into the dark, pessimistic world of Buffy and Angel and finally coming to rest in the despair of District 12 in Panem in 2008—the year Barack Hussein Obama took over from George W. Bush…two different faces for the heartless, soulless, President Snow….)

But the difference in spirit between those two places traces indeed the tragic story of the Decline and Fall of Western Civilization (and of the American Dream) in the 20th Century. Major stopping points along the way (for me at least) include 1939 with the Dorothy Gale’s transformation in the person of Judy Garland and Scarlett O’Hara’s complete redefinition of the concept of “progress” in the late 19th century, Jane Fonda’s comic Cat Ballou and Barbarella in the 1960s, and Buffy the Vampire Slayer in movie and television from 1992-2003.  

At each of these intervals, the world is more cynical and darker, and the heroines more complex.  Many critics have observed that the “head injury/dream sequence” aspects of the 1939 Movie Wizard of Oz and the metathesis of real individuals to “dreamtime” residents of the Land of Oz (which was COMPLETELY absent from L. Frank Baum’s book) resulted directly from Freudian psychoanalysis and the early popularity of psychology.  The general effect is to radically weaken the power of Oz as metaphor or lesson—but the movie was a wonderful hit—a lightly comic Wagnerian gesammtkunstwerk of acting, visual art, and music, so nobody really cared.  

A lot of the verbal banter and humor in the movie likewise showed a certain “worldly” sophistication with which I think Frank Baum would only have been somewhat congenial. E.G. the Cowardly Lion’s song “there’s just no use denyin’, I’m just a DANDYlion…” and the Wizard’s closing comment to the Scarecrow:

Back where I come from we have universities, 
seats of great learning 
-- where men go to become great thinkers. 
And when they come out, they think deep thoughts -- 
and with no more brains than you have .... 
But! They have one thing you haven't got! 
A diploma!

As a former denizen of the great academic halls of Cambridge, Massachusetts 02138 and Chicago, Illinois 60637 (from various halls of which august institutions I did, for all the good that it’s done me or the world, get diplomas), and a regular visitor to many other such places, I can tell you that the Wizard here is absolutely right: 

And when they come out, they think deep thoughts -- 
and with no more  brains than you have.... 

But such cynicism simply was not part of the original vision of Oz, and although Baum occasionally did occasionally turn such comments to ridicule life back in North America in later books, he did not at all in his first installment in which he remade European folk mythology and archetypes and reshaped them in a very idealized panorama of a world where death was rare if non-existent and even the most evil of men and creatures did not kill for sport or pleasure.

For all of L. Frank Baum’s futuristic visions, I do not think he could have foreseen the transition from the naïve and hardworking life of Kansas to the nightmarish dreamworld of Suzanne Collins’ grim opera—neither a soap opera nor a very lyric, although even in the written version (which I finally got around to reading), music plays an immensely important part in the methathesis of metaphor and character, from Katniss’ Father to Peeta, from Prim to Rue… as between the unnatural National Anthem of the Conquering Capitol and the free world of nature and the poor of the “outlying districts.”

L. Frank Baum’s Oz books in so many was shaped and defined the culture of early-to-mid 20th Century of a predominantly White Christian America, especially after the release of Judy Garland’s movie….***  The spirit of Dorothy Gale’s Kansas was stiflingly dull and harsh—the American dream had already, at that point, apparently kind of run aground and needed new life— The spirit of Dorothy Gale’s Oz was half atavistic throwback to the Middle Ages, half filled with futuristic wonders (such as Glinda the Good’s Magic Picture, which permitted her what we would now call “live video access” to whatever was going on in Oz or elsewhere earth she was interested.

Dorothy Gale was a simple, pre-teenage girl (Judy Garland was at least ten years older than the original character was portrayed as being in the First Oz Book, but Dorothy Gale remained essentially a-sexual throughout the series, never had a boyfriend or a beau…. perhaps recapitulating some archaic notion of “the Virgin Goddess”,  e.g. Diana Nemorensis or the Virgin Mary or the “Virgin Queen”, Mary again or Queen Elizabeth I) whose strength derived from common sense, great courage, love, and determination.  Dorothy Gale was a generalist who never specialized in anything or focused on any particular trade, profession, or way of earning a living (all throughout the long series of Oz books, in fact).  She was just flexible, imaginative, and practical—kind of a “Renaissance girl” in a very low tech way.

Being a non-specialized generalist seems to be the primary role of all feminine heroes.  Of the earliest three I knew (Dorothy Gale, Scarlett O’Hara, and Diana Nemorensis), if Dorothy Gale had the purest and most asexual identity, Scarlett O’Hara surely had the most impure and sexual.  

It was perhaps for that reason that I was never really taken with her until I was a teenager, even though with my grandparents I religiously had watched Gone with the Wind at every possible opportunity and my grandmother compared the mythic South with the real South over and over again.   Scarlett O’Hara was beautiful, flirtations, and OWNED men in a way that is both fairly realistic and quite cynical.  But the book and movie Gone with the Wind were brilliantly timed between the First and Second World Wars to show that the American War Between the States of 1861-1865 was the first really and truly modern war of total destruction.  

Throughout history, up until Abraham Lincoln loosed Sherman on Georgia and Grant on Virginia, the goal of Conquest Warfare had been to preserve as much of a conquered land’s wealth as possible—so that it could be stolen and appropriated for the victors.  There might have been a lot of talk in Ancient Rome about how “Carthage must be destroyed” and about Salting the Earth once it was vanquished, but Carthage was not only not burnt to the ground and left to rot by the Roman Conquest, it became one of the Great Cities of the Roman Empire, as 20-30 years of Harvard Archaeological excavations in Tunisia have so clearly shown.  Gone with the Wind showed something else when Sherman’s “wind blew through Georgia.”  The purpose was indeed, as the opening lines of both the movie and the book suggested, to wipe out an entire civilization, a way of life—to replace what Marxists call one “mode of production” with another.   NONE of Baum’s villains in Oz were as bad as that, although the movie version of the Wicked Witch of the West was pretty murderous in her general attitude….

One major innovation of Jane Fonda’s heroines Cat Ballou and especially Barbarella in the 1960s was the advent of “free love”, which never appeared even once in any of Baum’s pre-1920 writings, which was only very obliquely alluded to in Gone with the Wind, but which by the 1960s was all anyone really cared about.  

Like Dorothy Gale and Scarlett O’Hara before her, Cat Ballou and Barbarella were unspecialized generalists who could adapt to almost any situation.  They were strong, intelligent, sexy, deadly in a good cause, and then Jane Fonda went to Hanoi….  In retrospect she may have been right to do it because the Vietnam War was totally wrong, a seriously failed experiment in 1984-type “perpetual war”….but Jane Fonda’s actions did not seem positive at the time.  

In this defiance of the outward semblance of world order sense, Jane Fonda’s characters of both Cat Ballou and Barbarella somehow came to life as defiant outlaws….crossing boundaries that no one else would cross, and doing so with both impunity and (what seemed most shocking at the time) complete immunity from real official sanction.  Like the righteous killer Catherine Ballou who avenged her father’s death in the Wild West—Jane Fonda first enacted herself as a mythic reality and then, by going to Hanoi, remade herself as a historic metaphor—walking through the image of a treacherous act, unscathed, in essence to show that Vietnam was all a staged event….. a dramatic diversion to keep the masses simultaneously afraid, amused and absorbed….  

Fast forward 24 years from Jane Fonda as Barbarella and you arrive the first incarnation of Buffy the Vampire Slayer, a completely modern LA County San Fernando Valley girl with no hints of modesty or virginity about her…. followed by the much more intriguing evolution of Buffy Summers in the TV Series from virginal high school freshman to intensely sexual college freshman, in a world which is increasingly dark and where reality is increasingly concealed….. Buffy’s Sunnydale was a mythic place, a lot like Los Angeles, while her first boyfriend and lover Angel eventually goes to the real Los Angeles and sets up shop as first as a private detective and then director of a large law firm—two professions which, in Los Angeles at least, possibly in the movies generally, have almost acquired the status of modern Jungian archetypes….  

The increasingly dark and brooding, sad and depressed Buffy Summers never lost her general adaptability—she could never specialize in any profession or line of work any more than Dorothy Gale or Scarlett O’Hara or Catherine Ballou… but the realization that the dark forces of the world were effectively unbeatable and had pre-existed anything good in the world—these were major transformations of the American Dream from the Early 20th Century.  And it was during the 7 televised seasons of Buffy that the 20th Century, which came in with a little girl magically transported by a tornado from dull grey Kansas to a bright and beautiful alternative universe which knew no death, went out during Buffy’s Freshman year at UCLA with a young adult barely out of her teens who was alone in the world, with her small circle of more specialized friends, fighting vampires and the forces of darkness.

And five years after Buffy ended, Katniss Everdeen picked up the bow from her archetypal ancestors the Goddesses Inanna and Diana and Queen Boadicea, and began to hunt for meagre food in the desperately hunger fringes of District 12 (in what was once called Appalachia in what was once called North America).  

The gruesomeness of the Hunger Games apparently shocks some people—I would have thought that Americans had long since forgotten how to be shocked about or by anything.  Children murdering children for sport isn’t the most pleasant of ideas, to be sure. But in that 17-19 year olds have gone off to fight in every war America has ever seen….along with a few 16 year olds here and there, and since the History Channel periodically shows authentic news clips of 15-16 year old resistance “werewolves” in 1945 Post-World War II Germany being shot by firing squads of American Troops, and countless tens of thousands of teenagers have been silently snuffed in Afghanistan, Iraq, and Vietnam, it is hard to believe that the idea of children fighting and dying is really such a big deal to our ever hypocritically squeamish population.

The Hunger Games resonate with so much in our history and culture—with the original Victor Hugo version of Les Miserables (hopelessly buried and lost in the Broadway Musical of the same name), and in Suzanne Collins’ own account with the myth of Theseus and the Minotaur.  

But above all the Hunger Games resonates with the year 2012 in which America has taken so many steps towards being a brutal, repressive dictatorship like Panem, already—with idiot fake and fraudulent “Conservatives” like Lindsey Graham and Newt Gingrich competing with idiot truly fraudulent “Liberals” like Carl Levin, Barbara Boxer, Dianne Feinstein, Nancy Pelosi, and Barack Obama competing with one another to see who can shred the Constitution fastest.  

Interesting to me, given that I based my own doctoral dissertation at Harvard in large part on revisiting Frazer’s the Golden Bough and with it Diana’s Temple by Lake Nemi near Ariccia, are the parallels between the Hunger Games and the myths and rituals of Divine Kingship.  There is nothing in the story of Theseus and the Minotaur, however, about games or about Tributes being well-fed and allowed every luxury leading up to their deaths.  But precisely this treatment is common in the rites of Divine Kingship, where sacrificial victims, like the individual selected for sacrifice during the rites of Toxcatl among the Aztec, are equated with the God Tezcatlipoca (“Smoking Mirror”) during the last year of their lives, given wonderful food and drink, and then sacrificed.  Similar paradigms of sacrifice are found throughout the world—

And the sacrifice of children, likewise, is extremely common: to the rain gods in Mesoamerica, relic traces of this existed even among the modern Yucatec Maya who tie small children to the legs of the altar during the cha-chaac or rain ceremony—although the children have to do nothing more that happily chirp like rainy season frogs (but woe to the boy who croaks like a dry season Toad—he will be beaten, not sacrificed, but beaten).  The Hebrew Bible itself is filled with child sacrifice (all through the Books of Kings and Chronicles, in particular, are Kings who make their children “walk through the fire”—perhaps most famously the daughter of Jeptha…), and by way of archaeological parallel—the excavations at Carthage have revealed hundreds and thousands of child sacrifices…. Among the Natchez of Mississippi, families sacrificed their children in order to rise in social status from commoners (“Stinkards”) to “Honored” Nobility according to the French records by Dupratz and recounted by John R. Swanton….

And in this sense it is perplexing: sacrifice almost always lead either to elevation in status or to outright deification: why the elite of Panem would not have recognized the risk embodied in Golden Bough-Divine Kingship type of analysis: the sacrificial victim—like the Rex Nemorensis at Ariccia who becomes King by killing the old one in combat, will always become the next king.  

At the end of the first book of Suzanne Collins’ trilogy, Katniss Everdeen is poised to become (with Peeta), Queen and King of Panem.  This was not only foreseeable, it was in comparative mythological terms inevitable—and yet Suzanne Collins’ trilogy does not allow this drama to evolve that way.  In part, this may be because technology and traditions of oppression have obliterated the natural succession of Divine Kingship….

But Sir James G. Frazer’s point in writing the Golden Bough was to show that Divine Kingship involving the deification of sacrificial victims and their elevation as Kings is a nearly world-wide phenomenon.  I sit here puzzling at the significance of all the trappings of Divine Kingship and the Golden Bough in the Hunger Games.  

Frank Baum had either borrowed or unconsciously recreated so many motifs from ancient mythology—the Four World Quarters with colors Winkie-yellow Quadlin-red Munchkin-blue and Gillikin-purple with Green for the Center of the Emerald City are like nothing so much as the mythological and symbolic organization of (1) Ancient Mesopotamia, “Land of the Four Quarters” centered on Uruk, (2) Celtic Ireland, Ulster, Munster, Connaught, Leinster, and centered on Midhe (Meath) at Tara, and (3) pre-Hispanic Yucatan which, at several Classic sites, is divided into quarters dominated (as recorded on Stelae A & H at Copan) by Tikal, Calakmul, Palenque, and Copan and which even now is divided into four quarters (Yucatán, Campeche, Quintana Roo, and Petén, with Belize claimed by Guatemala and Geographically appearing to be a southern extension of Quintana Roo).

But in Frank Baum’s Oz, kingship is never strong and is always frowned upon, as are all attempts at centralization or standardization of culture, customs, or laws among the four/five regions of Oz.  For that reason, I would assume, there are no hints or traces of divine kingship in Oz—it is a Federal egalitarian Democracy of sorts (even though no one ever votes).  

But by the time of Buffy, as the 20th century closes, the need for a leader has brought forward the Slayer—“one girl in all the world” who fights the Demons.  Now Joss Whedon optimistically ended his series with a devolution of power and prowess from Buffy through the magic of Willow to Millions of “potential” slayers—-but it didn’t quite ring true, in a Television series where even the most outrageous vampiric and magic witchcraft was somehow made to feel “emotionally authentic.”

In the Hunger Games, Dictatorship is the reality and the two victors of the Hunger Games, Katniss & Peeta, are set to become the Divine Kings and possibly the real sovereigns of their land.  Perhaps the need for leadership, the need for someone to save the population, is not yet great enough, but in terms of the political and emotional significance of our story-telling, I think that the journey from Dorothy Gale’s Grey Kansas to Katniss Everdeen’s Grey District 12 tells us the story of the loss of hope and impending doom and despair which was the 20th Century.

*  Katniss is named after a plant called Sagittaria, and my grandmother was born under the sign of Sagittarius—it could be that Katniss reminds me a great deal of my grandmother Helen—similar complexions and faces…. Actress Jennifer Lawrence certainly fits very precisely the image in Suzanne Collins’ book…. and the younger pictures I’ve seen of my grandmother with long hair as a teenager in the time before the U.S. entered WWI….growing up in a place very much like the defeated districts of Panem in the Southern USA.

** In some New Age texts, 108 years is said to be a Venus Cycle, the more ordinary astrological cycle is one of 104 years.  108 is used, but oddly enough, is four years longer than longest calendrical cycle and planetary identity of the Ancient Goddess of Love, namely Inanna/ Ishtar/Aphrodite/Venus.  The calendrical cycles of Venus and the sun are said to “bind” (i.e coincide) every 2920 days, but the ultimate binding of 5 Heliacal Cycles of Venus with 8 Calendar years …. (365 x 8 = 5 x 584 = 2920 x 13 = 37,960 = 2 x 52 years (my current age) = 104 calendar years/105 “tuns” or 360 day periods—the root of the Maya and Aztec Calendars).  Like her Roman Counterpart Diana, Aphrodite and Inanna were both archers—it seems to be the feminine weapon of choice, possibly for purely sexual Freudian reasons, possibly for some mixture of Freudian sexual and Jungian archetypal causation.

*** In the 1970s, Broadway Musical and 1978 movie “the Wiz” the just recently departed Diana Ross and the late Michael Jackson did their best to reframe and appropriate the Baum story for African-America in the aftermath of the Civil Rights movement (or Fraudulent Civil Rights Fiasco) of the 1950s-60s…. I have never been comfortable Easing on Down the Road with them in that direction…. although my grandfather was a great supporter of alternative all black productions (now almost extinct) because they upheld and even developed, really and truly, the old segregationist’s doctrine of Separate but Equal (we actually attended the Wiz at the Majestic Theater on Broadway as well as an all black revival of Guys & Dolls in my one major summer with him (ever in my life) in 1976.

“A year from now, ten, they’ll swing back to the belief that they can make people better. And I do not hold to that.” Eugenics and Bioengineering as forms of State Sponsored Welfare DO NOT make people better…..a debate with Bob Hurt of Clearwater, Florida….

Von: Bob Hurt <bob@bobhurt.com>
An: Charles Lincoln <charles.lincoln@rocketmail.com>; Lawsters <lawsters@googlegroups.com>
Gesendet: 14:06 Samstag, 19.Mai 2012
Betreff: Re: [Lawmen 4733] Eugenics is NOT A Reason to Revise the 13th Amendment
Charles:Thank you for responding.  That was the first intelligen comment I have received on the topic, so I appreciate it.
Bob, like I said—I respect you a great deal, we’ve done some great things/seminars together and I hope we’ll do more in the future—I consider you a friend, if terribly blind on this point….

First, I don’t believe you understand IQ tests, for you you did, you would know that in the past 100 years they have evolved to become absolutely the best predictor of the ability to evaluate relative importances, solve problems, and achieve academic excellence.  
What I see and understand about IQ tests is that they are a circular argument, a Catch-22, a self-fulfilling prophecy.  Certain specialists designed IQ Tests, persuaded other specialists to rely on them, and since these specialists rely on them, the USE them, and discriminate among people according to such tests.  ALL Standardized tests work EXACTLY the same way: SAT, MCAT, GRE, LSAT, etc.—yes, even the Multistate Bar Exam and the Multistate Ethics exam—CLASSICAL EDUCATION IN THE US HAS BEEN REPLACED BY TEACHING TEST-TAKING SKILLS.  I think it is disgraceful, and that all standardized tests need to be thrown in the garbage—“the rubbish pit of history” to use one K. Marx’ catchy phrase….
You seem loathe to admit that, but for the protection and support of government and society, the stupid would perish or become slaves, as they have down through the millennia, not because of race, but because of cognitive ability.
No, I am NOT “loathe to admit” anything—but I read the record differently: GOVERNMENT and SOCIETY decide who is stupid, and for those who really can’t adapt—natural selection works MUCH more fairly than “Government Protection and Support.”  In fact–what I LOATHE is that very phrase: “Government Protection and Support.”  I don’t know whether you’ve seen the movie “The Hunger Games” yet—but if not you (and everybody else) really should.  
“The Hunger Games” is a story set in and about the aftermath of a revolution in North America of the future in which “the people rose up against the Government that fed them, loved them, protected them….” and were punished severely as a result.  LOOK AT THE WAY Southerners have been degraded and caricatured as stupid ignorant oafs since 1865.  The Post-War Southerners did JUST FINE for many years without government Protection and Support—in fact, they did fine IN THE FACE OF government oppression and intentional discrimination—arguably, they did better than they’ve done WITH such protection and support.  Likewise, all of Latin America and Africa were “undeveloped” by U.S. and European Colonialism which sought to protect these “poor pathetic people” from themselves—i.e. since they couldn’t organize multi-national companies and international banks on their own.  The people of District 12 grew strong through quiet resistance and isolation within Panem (the name of the “North American Union” in the “Hunger Games” were “protected and supported” by a totalitarian regime which existed by squeezing everything they could out of the people and leaving them with nothing).  
Third, you seemed to have missed the point that we of competence have become slaves to the incompetent, through welfare, minimum wages, crime, and associated infrastructure costs which we must pay.  That has happened largely because of flaws in the constitutions, gnawing guilt and political correctness, and suffrage for the stupid, incompetent, and irresponsible.
BOB—YOU seem to miss the point that it is precisely a paternalistic attitude like yours—whereby some people THINK they are stronger or better than others, that breeds this kind of stupidity in Welfare—we have to stop thinking that WE KNOW better or can make OTHER people better—we have to learn to live by the adage “Let it be.”  NO ONE has the right to make decisions for anyone else, except by agreement.  We do not have the right to classify people in LEGAL terms, deprive them of rights, based on our OPINIONS of them.  We have the right to live our own lives and not be bothered with anyone else UNLESS WE WISH TO BE—and this, I think is the biggest single reason I feel I have to argue for you.  You are SO much like Madison Grant and the “Progressives” of Theodore Roosevelt’s Age—like Oliver Wendell Holmes on the Supreme Court writing in favor of sterilization of imbeciles in the 1920s—THESE ARE THE PEOPLE WHO GAVE RISE TO THE CURRENT WELFARE STATE—even though the “gnawing guilt and political correctness” elements are basically a 1960s Herbert Marcuse—Frankfurt School of Social Though addition which the Elite Find EVEN more useful—precisely because it gives them the right to call people who are NOT politically correct or do not feel the guilt “stupid, inferior.”  Southern Whites are stupid hicks but racists everywhere have lower IQs than non-racists, didn’t you know that?  Patriotic Constitutionalists are the stupidest people of all because they just don’t understand the Marxist progression of history which will PROTECT AND SUPPORT all people everywhere…. Can’t you see that?  Christians are stupid compared with Atheists, Conservative Republicans have less education than Liberal Democrats—all of this is part of the competitive instinct of humans, inherited through evolutionary competition, as E.O. Wilson has described so well in “The Social Conquest of Earth”
Fourth, you have erred in your assessment of slavery in ancient times.  The foreign survivors of successful wars always became slaves for life, although laws provided ways to win freedom, typically by demonstrations of deserving freedom.
I have certainly NOT erred in my assessment of slavery in ancient times—I said it was not based on inherited characteristics, so that Angles enslaved in one war did not give rise to any presumption that “Angles” would be slaves forever.
Fifth, you seem not to grok the outcome of a system such as what I propose.  
I do not “grok” it because I would BLOCK it with every bone in my body, every fibre in my muscles, every neuron in my brain.

  • And, we can refer to masters/slaves by different terms to mollify the leftist liberals seeking political correctness in place of substance.  We could call it the Ward system and the participants caregivers/wards.  How’s that?
    You forget that I perfectly see the system of involuntary servitude you propose because I OPPOSE THE VERY NOTION OF WELFARE and that ANY person should ever be WARD to another as a matter of birth, “intelligence” or class.  If our parents develop alzheimers WE should take care of them—they should not become “Wards of the State”—our children are helpless at birth but even LESS should we allow THEM to become WARDS OF THE STATE—but ultimately, your system (based on early 20th Century Eugenic Theories) LEADS INEXORABLY to the wardship of all children and RIGHT BACK TO THE BRAVE NEW WORLD.  This has NOTHING to do with Political Correctness—it has EVERYTHING to do with restoring MEANINGFUL FUNDAMENTAL FREEDOM FOR ALL—and protecting MY Second Amendment Right to Shoot anyone in the head who thinks they are smarter than me if that means they think they can take me for a WARD….by the way…
  • Government or private parties could encourage the stupid to undergo voluntary permanent sterilization, just by offering money.  The ranks of the stupid would diminish dramatically from that clever negotiation, repeated in communities all over the nation.  And from the viewpoint of the economy, it would dramatically reduce the burden on taxpayers.  That bit of eugenics does not hurt anyone. 
  • Again, Bob—this is just beyond repugnant to me—it is Progressivism and New Deal/Great Society Socialism run amok—that is why it is, in essence NAZIISM at its worst….. Taxes like the Income Tax ONLY exist because people are WILLING to have OTHERS make socially important decisions for them—I say, to HELL WITH THAT—Everyone makes their own decisions and lives or dies by them…. that’s freedom….
  • Government should outlaw procreation of the stupid because such procreation is such a tort against the innocent baby that it becomes a crime against the person and society as the child grows into adulthood and resorts to crime and welfare abuse to subsist.  This really is a legal matter and a matter of right.  A baby has a right to grow into a well-functioning adult, and parents have the responsibility to make that possible.
  • If this is really what you want—I will have to fight you if you ever come to power—which I guess means we’ll never have to fight—but “outlaw the procreation of the stupid?”  This is EXACTLY what Oliver Wendell Holmes was advocating, along with Madison Grant and others, in the first 3rd of the 20th century—YOU have no right to say who should procreate and neither do I, and neither did Oliver Wendell Holmes or Madison Grant or either of the Presidents Roosevelt.  I think this is just loathsome—and I wonder about it–because I think of your niece—I can’t remember her name—in your own family there are examples of what can be called less than brilliant breeding, are there not?  You would not begrudge your own flesh and blood the right to procreate as she sees fit, would you?
  • Families of means, including middle class families, could typically afford to house, feed, and clothe the stupid, so long as those stupid did not procreate children the caregivers did not want.  Many if not most homes have extra bedrooms to accommodate live-in Wards who could become loved, respected members of the family, perform services for the family, and submit to the discipline of the head of the household.  Most so-called slaves prior to the 1860’s were really NOT slaves in the sense of wearing chains, getting horsewhipped and served only gruel to eat, and suffering untreated diseases and illnesses. Nor would modern Wards suffer such abuse.  The spirit of love would blossom in most families with one or more live-in Wards.  This alone would keep many Wards out of crime, malnutrition, prison, drug abuse, and general dereliction.
  • You are saying something very different in this paragraph and I have no wish to disagree that “charity is our first obligation” and civilized people and as Christians, and that such charity, if enshrined as a real cultural norm, would go a long way towards solving all these problems. 

Churches could start playing a big role in the administration of the Ward system, which they should have all along.

Again, this is something I have no intention of arguing about—but it is irrelevant to your contentions regarding the 13th Amendment….or “the belief that they can make people better…AND I DO NOT HOLD TO THAT.”  

As for eugenics, it is nothing more than family planning on a larger scale, and it is perfectly ethical.  In fact NOT to engage in eugenics plans and programs is the height of hyocrisy and disrespect toward the members of future civilizations.  If you want me to explain it to you in detail, let me know.  Meanwhile, ponder the adage “It takes seven generations to create a gentleman.”  It does not happen by accident.
You seem determined to prove Captain Malcolm Reynolds of the Good Ship Serenity correct when he said:

So now I'm asking more of you than I have before. Maybe all. 'Cause as sure as I know anything I know this: They will try again. Maybe on another world, maybe on this very ground, swept clean. A year from now, ten, they'll swing back to the belief that they can make people... better. And I do not hold to that.

Bob

 

On 05/18/2012 10:49 PM, Charles Lincoln wrote:

My Dear Bob Hurt:
Your recidivism in your support of Eugenics is just appalling.   You know I feel that way.  Why do you keep coming back to this topic?
Eugenics is the most outrageous of all infringements on the fundamental rights of humanity, whether we believe that those rights originate from the State of Nature or God’s Endowment.  The Ancient Latin Legal classification of slavery was a contractual arrangement both socially approved and lawful but contra natura.
It is particularly appalling that you frame it (with a great deal of intellectual honesty and analytical integrity—for which at least you deserve due credit) in terms of a repeal of the 13th Amendment, and that you start off with a comparison to seat belts.  You may recall—my war against Seatbelt laws and the police abuse such laws invite is at the root of everything that made me into a FORMERLY licensed lawyer, as well as a FORMER Republican (President of Tulane College Republicans 1976-78).  
I believe in freedom and liberty and I wouldn’t trust ANY HUMAN BEING to determine my fitness or yours to live and breathe.  I think I am basically as conservative as anyone could possibly be, but I do not consider Naziism genuinely conservative, even though I can admire and sympathize with some of the traditionalist, historical identity and heritage aspects of the Fascist movements in 20th Century Europe and Latin America.  
To me, the ideology of the Founders in 1770-1792 (Boston Massacre of 1770 through Washington’s First Term as President under the Constitution of 1787 and the adoption of the Bill of Rights) and of John Randolph of Roanoke, Andrew Jackson, Roger Taney, John Caldwell Calhoun, John C. Breckenridge, Jefferson Davis, Judah P. Benjamin, and the all Founders of the Confederate States of America represent real, genuine, honest and truly American “Classical Liberal” conservatism.  AND NONE of them would ever have tolerated Eugenics—because it is an interference with the fundamental rights of individuals and families.
And that brings up an interesting point—you are advocating REPEAL or REVISION of the 13th Amendment in order to implement Eugenics?
Now, I just said I deeply admire and support the memory of the founders of the Confederate States of America, and the Southern Partisans who preceded them, but Slavery and Freedom are, by definition, incompatible lifestyles.  The 13th Amendment was adopted without the popular support of the 40% of the Nation who had no real vote in 1865, and yet today it is one of the least controversial provisions of the Constitution, and I think it needs to stay that way, and be enforced for every person.
I agree that the citizenship questions created by emancipation and left unresolved as of today are a threat to a homogeneous society in which freedom can flourish, but I totally disagree that slavery on any pretext, including the criminal laws of the United States, or Eugenics through anything as totally malleable and manipulable as IQ scores, could or should be allowed to exist.  In my opinion, segregation of the races might be a better path to restoration of true freedom and dignity for all, as well as a more natural path to foster divergent evolutionary paths which could, in the long run, compete my old Harvard neighbor and Museum of Comparative Zoology Professor E.O. Wilson has recently described the sociobiological origins of racial separation and competition (http://www.vdare.com/articles/e-o-wilson-nationalist, review of “The Social Conquest of the Earth.”)
Black Slavery was, in so many ways, America’s “original sin”—every student of the Bible knows that “original sin” is that in which we all share, as human beings, from which none of us can ever completely escape except through Salvation.  Original Sin is “sin” because it embodies and reflects everything that we need, everything that we want, naturally, and yet it is wrong.  People WANT to live free of care, fear, labor and all kinds of responsibility, which they would like to dump on someone else’s broader shoulders.  The Africans were naturally strong and by selective breeding in slavery they were made stronger.  Was this a good or desirable result for the White People?  For the White Race as a whole?  As an evolutionary experiment?  No, it was not. It was in fact a disaster—a continuing disaster.
But Bob—what you are suggesting is that we use IQ tests, one of the results of the “Original Sin” of Slavery having been to artificially import and then depress the intelligence of the Africans and other groups by educational intent, and then solidify that back into history by restoring IQ as a substitute for skin color in the restoration of slavery.
This is, I think, wrong in every possible way.  I do not believe that miscegenation is the road to happiness or a cure for the original sin of slavery, because I think that race-mixing destroys the natural diversity of the species—which I think is a GOOD and POSITIVE thing—even if it results in some people SEEMING dumber, less intelligent, or attractive to us than others.  We need to MAINTAIN the diversity of the world AND the freedom of each individual by securing individual and family autonomy, not slavery.
In the Ancient World (Rome & Greece), Slavery was almost always a temporary thing, by contract (arising from debt), and there were no permanent slave classes.  Slaves were often extraordinarily talented artists, cooks, musicians, actors/dancers, or even poets, and Slaves often tutored their masters’ children.  Even when Rome brought in captive armies or whole communities as slaves, these communities did not stay enslaved forever, from generation to generation. (I think of the comment about the Angles [Ancestors of the English] whose appearance was so beautiful on the Streets of Rome that Pope Gregory the I said, “non Angli see Angeli” and promptly dispatched as missionary the future Saint Augustine of Canterbury to preach to the Kentish Angles as well as the South and Eastern Saxons of Sussex and Essex—the point being that there was no pretense that the Angles would be a hereditary class of slaves forever).
But worst of all, I think your criteria for selecting a “slave” vs. a “free” class are more subject, and hence more unfair than even the Nazis could devise.  It is normally fairly clear, after all, who is Black or White, who is Jewish or Christian by birth or heritage.  
But in what I can only call an adoration of pseudo-science, you equate IQ and wealth with class and entitlement.  This, too, is appalling.  All IQ tests have been shown to be matters of learned behavior—“nurture not nature”, and so education would be the solution for that, except that compulsory education is itself a form of governmental interference with the absolute freedom into which all living beings and creatures are born.
I believe that people have to be free to make choices, good and bad, just like genetic mutations, some of which are beneficial, some of which are not, but most of which are simply neutral.
NO GROUP OF HUMANS has the God-like capacity or the God-like right to try to guide evolution or the “re-creation” of the human species.
I don’t know whether you ever saw the movie Serenity directed and produced by Joss Whedon (whose latest creation is the new Avengers), but Captain Malcolm Reynolds of the “Good ShipSerenity” (a “Firefly” Class Spaceship) engages in the following key monologue, after the discovery of what had really happened to the people of Miranda—who were poisoned by Government experiments in “behavioral improvement” based on similar pseudo-science:
This report is maybe twelve years
          old. Parliament buried it, and it
          stayed buried til River dug it up.
          This is what they feared she knew.
          And they were right to fear,
          'cause there's a universe of folk
          that are gonna know it too.
          (touches the cylinder)
          They're gonna see it. Somebody
          has to speak for these people.
          (everybody waits)
 (CONTINUING)           You all got on this boat for
          different reasons, but you all
          V0 come to the same place. So now
          I'm asking more of you than I have
          before. Maybe all. 'Cause as
          sure as I know anything I know
          this: They will try again. Maybe
          on another world, maybe on this
          very ground, swept clean. A year from now, ten, they'll swing back to the belief that they can make people... better. And I do not hold to that.

Charles Edward Lincoln, III

“Ich bin der Geist der stets verneint! Und das mit Recht.”

Deo Vindice/Tierra Limpia

Telephone: 512-968-2500
In case of emergency call Peyton Yates Freiman (Texas)
at 512-968-2666 or e-mail freimanthird@gmail.com


Matthew 10:34-39
Think not that I am come to send peace on earth: I came not to send peace, but a sword. . . . And he that taketh not his cross, and followeth after me, is not worthy of me. . . .  

Von: Bob Hurt <bob@bobhurt.com>
An: Lawsters <lawsters@googlegroups.com>; Lawmen <lawmen@googlegroups.com>
Gesendet: 13:21 Freitag, 18.Mai 2012
Betreff: [Lawmen: 4733] A Reason to Revise the 13th Amendment

I welcome discussion of the questions and issues raised below, but please keep hateful or insulting rejoinders to yourself.
A Reason to Revise the 13th Amendment
Copyright © by Bob Hurt 18 May 2012. All rights reserved

Pesky Questions About Bozos

Does a society have the right to enact laws that effectively prevent members of the society from
  • becoming a financial burden on the rest of society?
  • endangering others in society?
  • infecting innocent babies with a condition of lifelong obtuseness, brutishness, torpidity, and lack of intelligence?
How and why has the USA changed in average intelligence since its beginning?
Does any right of a society or civilization justify limiting the lower boundary of intelligence for parenting, such as through eugenics programs?
This commentary addresses those questions and might provide insights for the sincere truth-seeker.

Law and Likelihood of Harming Others

Consider the legislative enactments regulating business practices, highway traffic, and human relations. Take for example seatbelt laws. Government requires people to buckle themselves in because:
  • People often cause car crashes through negligence, incompetence, judgment error, or equipment failure;
  • The violence of car crashes often maim or kill people in and out of the car;
  • Such terrible loss causes families to suffer from reduced of earning power and enjoyment of life, and becoming a burden on society;
Thus, modern civilizations prohibit human actions likely to endanger selves. others, and society.

Qualities and Uses of Intelligence in Civilization

According to Wikipedia’s IQ article, IQ has high heritability, intgelligence highly correlates to SAT scores, and people with IQ of 70 to 90 will likely engage in criminal behavior. Lynn and Vanhanen’s books on IQ show the high correlation of national average IQ to gross national product. Therefore, means exist for society to determine the intelligence (g factor) and IQ of its members, and their corresponding value to society in terms of productivity, academic achievement, likely crimnality, burden on society, and the likelihood of low-intelligence parents procreating low-intelligence children.
One must have an IQ of at least 85 to graduate from high school. US IQ distributions from actual tests reveal that at least 75 million of its people have IQ below 85 and even more cannot graduate from high school because of behavior and health problems associated with low intelligence.
In the past 150 years the US has moved away from circumstances requiring massive numbers of low-intelligence people in its military and work forces. The military leaders of today desperately want recruits to have high school diplomas, and many manual labor jobs have moved to 3rd world countries as mechanization has modernized farms and factories. America needs people who can think, arrive at correct evaluations, and make correct decisions.

Hypocrisy of Ignoring the Gene Pool

Wouldn’t it make sense to reduce the need for protective laws, prisons, and welfare infrastructures legislating to elevate the quality of the gene pool?
I see the refusal to take such action as rank hypocrisy:
  • We demand laws regulating seatbelt usage, road, motor vehicle, and building construction, highway speed, driver licenses, professions like plumbing, dentistry, medicine, and lawyering, and many other areas of life, on the basis of likelihood of resultant injury. But,
  • We ignore the far higher likelihood of injury resulting from procreation by people of low intelligence.
How much sense does that make?
Hypocrisy aside, does it not seem unintelligent to refuse to discuss the reasons and means for reducing the percentage of grossly unintelligent people in future populations? Does it not seem even more stupid to refuse out of political correctness – the notion of feeling embarrassed that the topic might offend those of grossly low intelligence?
How about taking a poll of the stupid and ask them whether they enjoy feeling confused, frustrated, victimized, in trouble, and unable to learn, to figure things out, or to make prudent decisions? We might discover that they think they figure things out just fine, or that they hate the condition and would become smart if they could.
Well, aside from that, it could go without saying that the highly intelligent would find some tasks boring that the lowly intelligent would find gratifying. Likewise, tasks that would challenge and gratify the intelligent would frustrate and anger the unintelligent.
Many jobs exist that would suit the unintelligent. Thus, society’s needs for the unintelligent still exist, such as domestic servitude, and simple tasks for which employers cannot afford machines. But such tasks have an economic value nonetheless, and it makes no economic sense to force an employer to pay more than the value of them.

Intelligence Strata (Classes) in America

The existence of 75 million relatively unintelligent people in America and the lack of available jobs for such people poses a serious problem that has resulted in America’s prisons bursting at the seams.
America has entered an age where it handles unintelligent people as follows:
  • Puts them into the welfare system (they burden taxpayers); and
  • Suffers crimes at their hands (they burden their victims and then the criminal justice system).
Meanwhile, the very smart have advertised the American Dream’s cornucopia of goods and services which the unwealthy obtain through debt. The unwealthy, unlike the unintelligent, do have intelligence, but either don’t use it sufficiently to become wealthy, or actually don’t have quite enough intelligence to become wealthy. That is, wealth does not generally happen by accident except when inherited by someone who very likely has high intelligence, the offspring of someone intelligent enough to garner wealth.
So we have three major strata:
  • The highly intelligent wealthy (high class)
  • The somewhat intelligent or lazy unwealthy (middle class)
  • The unintelligent poor (low class)
In practice:
  • The high class has managed to make the middle class into voluntary servants through glitzy ads and debt.
  • Many of the high and middle class employ the low class for domestic servants.
  • Some, but not that many, of the middle and high classes provide the low class with food, clothing, and shelter as part of the domestic servitude arrangement.
  • The existence of many if not most of the low class have made the high and middle classes into their involuntary servants through crime, and taxation that pays for welfare abuse, health care, social workers, failed education efforts, and prisons.
  • Even though taxes on the high class do pay for the upkeep of the low class, the high class never notices it as a burden because of other tax benefits and shelters, but those taxes impose a severe burden on the middle class.

The 13th Amendment and Reverse Slavery

This makes it apparent that the 13th Amendment did not actually abolish involuntary servitude. In reality, it appears that Americans, through their misguided sense of fairness, justice, and altruism, have destroyed the effectiveness of community charity programs for the feckless, handing those to government, and converted the middle class into slaves of the low class AND the high class.
The upshot of this weird dilemma: Americans have upset the Law of the Survival of the Fittest with a system of legislated slavery of the middle class to the high class through usurious debt and to the low class through taxation. Victims of this system can only imagine that the high class engineered it intentionally. It does seem pretty slick when one ponders it. And that explanation clarifies the reason Government refuses to patrol the borders or impose some kind of check on the presently unrestrained procreation of children by unintelligent parents.
This dilemma and its causes constitute a wholly immoral, unethical perversion of civilization’s ideals. A society ought to engineer civilization for evolution toward some age of light and life, so to speak, where no crime, poverty, or war exists, and people can prosecute their ambitions without unduly burdening their fellows. That can never happen in an increasingly mechanized society in which 25% of the people haven’t the cognitive ability to graduate from high school, and will certainly resort largely to crime or welfare abuse to get by.
People of low intelligence make sense in a free society so long as others don’t become systematic slaves to them. The unintelligent must have a means of becoming gainfully, self-sufficiently, and happily employed, or the wards of those willing to care for and obtain economic benefits from them. The unintelligent simply cannot become and remain wards of the state without an economic justification. Liberty, after all, comes at the expense of commensurate responsibility.

Reverse Slavery Justifies 13th Amendment Revision

The foregoing discussion sheds new light on the 13th Amendment. That Amendment should stand, but ONLY for people with sufficient IQ and ambition to operate self-sufficiently. So, Congress ought to modify it a bit to that end.
Though many might feel loathe to admit it, involuntary servitude gave many benefits to many people, in spite of members of master and slave classes abusing one another.

Potential Benefits of 13th Amendment Revision

It provided sustenance, employment, and regulation for the servants and labor and other economic and personal benefits for the masters. Both sides benefited and to a large extent enjoyed the arrangement. And most of the servants, though slaves, escaped far worse conditions in their homelands.
But, involuntary servitude had serious deficiencies:
  • Incorrigible and violent slaves endangered the master and other slaves, and belonged in prison, not in a family or commercial enterprise.
  • Abusive or negligent masters hurt or deprived their slaves.
  • Many people became slaves who had the intelligence and raw ability become good, self-sufficient citizens, and should not have become involuntary servants.
Today we have a reverse-slavery system where the high and middle classes, who can care for themselves and become good citizens, have become involuntary servants to the low class who cannot care for themselves or become good citizens.
Society must reverse this situation while dramatically reducing the low class to a size that society actually needs for a smoothly functioning economy. That constitutes the supreme reason to outlaw production of bozos in America. Within 3 generations the averate intelligence of the nation will rise significantly, welfare will diminish so that neighborhoods can handle it without government interference, crime will drop dramatically, inner city ghettos will disappear, prison industries will shrink, and America will become monumentally more productive, more competitive than ever in the world economy.
And, Americans with good sense should demand a change to the 13th Amendment to impose a system of involuntary servitude on able-bodied people who, by their nature, cannot or will not care for themselves without hurting or burdening others.
Americans of good sense will otherwise remain slaves to the unintelligent of the land. And that just doesn’t make much sense, does it?
# # #
Bob Hurt
2460 Persian Drive #70, Clearwater, FL 33763-1925
(727) 669-5511   http://bobhurt.com


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Bob Hurt

2460 Persian Drive #70, Clearwater, FL 33763-1925
(727) 669-5511   http://bobhurt.com

CONSTITUTIONAL WAR vs. 1984 “Perpetual War”

Congress, originally (in 1787), was supposed to be the successor to Parliament as the highest expression of the Sovereignty of the Anglo-American People.  It seems, over the past 70 years, that Congress has largely abandoned its role as the primary lawmaker in the United States. As noted on this blog recently, Executive Orders have pretty much replaced legislative enactments.  During the 1950s and 60s, the Judiciary was commissioned with implementing the program of desegregation which neither of the directly political branches were willing to impose on the unwilling American people.

But now, as a consequence of all this history, the “legislature” now longer “legislates”–it mostly ratifies bills prepared by bureaucrats or lobbyists.  Debate is almost nugatory, no longer meaningful, and elections seem “rigged” at all levels.  One of the key powers of Congress granted in Article I of the Constitution was the power to declare war, and Congress has done this throughout history—but the last times were in 1941-1942 at the beginning of the Second World War.  

I find myself simply astonished by the following brain-dead (anti-Libertarian, anti-Ron Paul, anti-Constitutional) Republican “Red State” website (http://www.redstate.com/dcacklam/2012/05/16/law-war-security-why-libertarians-are-wrong-about-indefinate-detention/) defense of Indefinite Detention, but I reproduce it here merely to highlight its one key but absolutely fatal flaw—the “War on Terrorism” (like the “War on Drugs”) is an undeclared, unconstitutional war.  It is also a war which is likely to last forever—where there is no Constitutional Declaration of War, there will be no Treaty Ratifying Peace—precisely because the ENEMY DEPENDS ON US FOR ITS EXISTENCE—There can be no Al Qaida, no Terrorist Threat anywhere, that is not nurtured and fostered by the CIA and other elements of the American and “allied” governments.  Long-term terrorism is in essence a fantasy, a very Orwellian Fantasy, just like the “perpetual war” of Eurasia, Eastasia, and Anglo-American “Oceania”: 

I’m sure I’m not alone in having “grown up” on 1984.  In Orwell’s book a very credible “Cold War”-like “perpetual war” consumes what little surplus exists between the economies of London-based Anglo-American Oceania, Bolshevik Eurasia and Sino-Japanese Eastasia, the super-states which emerged from the atomic global war. “The book”, The Theory and Practice of Oligarchical Collectivism by Emmanuel Goldstein, explains how the balance of power is maintained: each state is so strong it cannot be defeated, even with the combined forces of two super-states—despite changing alliances. To hide such ridiculously illogical contradictions, history is  constantly being re-written to explain that the (new) alliance always was so; the populaces accustomed to doublethink accept it.

EXACTLY LIKE THE ARAB-ISRAELI CONFLICT AND THE WAR ON TERRORISM, ORWELL’S “FICTIONAL” (or was it Prophetic?) WAR is not fought in Oceanian, Eurasian or Eastasian territory but in the arctic wastes and a disputed zone comprising the sea and land from Tangiers (northern Africa) to Darwin (Australia).  

{{{For those of you with a weak grasp on geography, that includes Morocco, Algeria, Libya, Egypt, Israel Syria, the Arabian Peninsula, the site of the USS Cole disaster in 1999, the sites of the U.S. Embassy Attacks in Nairobi & Dar es Salaam in 1998, Somalia, the Persian Gulf, Afghanistan, Pakistan, and Southeast Asia including Bangladesh, Vietnam, Malaysia and Indonesia—in other words EVERY major theatre of war since 1945 EXCEPT for Korea, but including BOTH “Stanleyville and Saigon” and Algiers which were sites of major undeclared “hot spots in the cold war” in the 1950s-60s).  I sometimes wonder whether 1984 was actually an INSTRUCTIONAL manual leaked out, and quickly reclassified as a “fictional” work.  The author George Orwell really DID work for BBC Wartime anti-Nazi propaganda in India, after all, and given his circle of friends and contacts he was probably as privy as anyone outside of government could be to Power-Elite’s Vision of their plans for the next 70 years….}}}

At the start of Orwell’s Perpetual War, Oceania and Eastasia are allies combatting Eurasia in northern Africa.

That alliance ends and Oceania allied with Eurasia fights Eastasia, a change which occurred during the “Hate Week” (comparable to the real world “National Brotherhood Week” maybe?) dedicated to creating patriotic fervour for the Party’s perpetual war.  The public are utterly insensitive and blind to the change; in mid-sentence an orator changes the name of the enemy from “Eurasia” to “Eastasia” without pause. When the public are enraged at noticing that the wrong flags and posters are displayed they tear them down—thus the origin of the idiom “We’ve always been at war with Eastasia”; later the Party claims to have captured Africa.  

{{{I personally have, for a long time now, suspected that it is no coincidence that we first went to war with Saddam Hussein and a terrorist named Osama bin Laden and then [had elected for us] a New World Order President named Barack Hussein Obama—so that people would have these similar sounding names confused, just as in Orwell’s 1984}}}.

“The book” by Goldstein, a credible name for a New World Order Theorist if ever there was one, explains the design and purpose of the unwinnable, perpetual war: the war serves to consume all “surplus” or excess human energy, time, labour and commodities, hence the economy of a super-state cannot (or is not expected to) support economic equality (a high standard of life) for every citizen.

Goldstein also details in characteristic doublespeak an Oceanian strategy of attacking enemy cities with atomic rockets before invasion, yet dismisses it as unfeasible and contrary to the war’s purpose; despite the atomic bombing of cities in the 1950s the super-states stopped such warfare lest it cause disequilibrium among the perfectly balanced and perpetually warring powers and thus bring about the uneconomical, politically undesirable, result of an actual peace.

Even the Perpetual War military technology in Orwell’s 1984 is prophetic in that, although it differs little from that of World War II, strategic bomber airplanes have been largely replaced with an evolved species of Werner von Braun’s Rocket Bombs (not quite the ICBMs of the Cold war, or the ABMs of the Star Wars Dreamtime).  True to the reality of Korea, Vietnam, and Iraq, helicopters were heavily used as weapons of war (while they didn’t figure in WW2 in any form but prototypes) and surface combat units have been all but replaced by immense and unsinkable Floating Fortresses, island-like contraptions concentrating the firepower of a whole naval task force in a single, semi-mobile platform.  Orwell’s novel describes one such platform anchored between Iceland and the Faroe Islands, suggesting an Political and Practical “Perpetual War”-perpetuating preference for sea lane interdiction and denial).

In any event: serious students of U.S. History will recognize in the passage below, but see the logical and moral flaws in, the direct comparison to the U.S. Civil War of 1861-1865—when the rights of Americans, North and South, were first repressed and began their long decay into the nightmare of what I can only call either “the Brave New World” or “The New Dark Age”—although fans of George H.W. Bush like to call it “The New World Order”:

Law, War & Security – Why libertarians are wrong about ‘Indefinate Detention’

Posted by Dave_A (Diary)
Wednesday, May 16th at 2:56AM EDT
14 Comments
Recommenders: mikeymike143 (Diary), PowerToThePeople (Diary)

We hear complaints on this subject from time to time – in the past it was Bush’s opening Gitmo, the 2006 Military Commissions Act, and now it’s the NDAA & Obama not closing Gitmo…

Supposedly, this is a ‘grave violation’ of people’s rights, and we should all be very, very afraid because ‘It might be us next’…

Predictably enough, it’s usually lefties, extremists, libertarians, and Paul supporters (but I repeat myself on the last one, it seems – as that group encompasses all of the ones preceding) making these claims…

And rather than using the correct terms – such as EPW (Enemy Prisoner of War) or POW, and ‘detention for the duration of hostilities’, they use ‘indefinite detention’ and ‘violation of habeas corpus’ – as if the situation is one of holding every-day civilian criminals indefinitely without trial, rather than holding enemy combatants (some lawful, some very much unlawful) captured while engaging in hostilities against the United States…

So, with that said, here’s the case FOR proper handling of EPWs – or as the L’s call it ‘indefinite detention’:

1) The traditional treatment of captured persons, and specifically the concept of taking prisoners & holding them for the duration of hostilities or until an exchange can be negotiated, is older than the United States – and something we practiced ourselves in every war we have fought.

If it was Constitutional and right to hold British, Mexican, Spanish, German, and Japanese prisoners for the duration of the war-in-question – and to hold captured rebels for the duration of hostilities during the Civil War (despite their holding US Citizenship (the Union never recognized the CSA as a foreign nation) it being legal under the Constitution to try and execute them for treason instead – a decision likely influenced by the mutual possession of prisoners by both sides & the Union’s desire for reconciliation after eventual victory), what has changed to make it suddenly unconstitutional to hold Al Queda and Taliban prisoners in the same manner?

2) There are international agreements on the treatment of captured and retained persons – a subset of what is referred to in the military as ‘Law of Armed Combat’ or ‘Law of Land Warfare’ – that require certain things & prohibit others. Shooting surrendered enemy forces is prohibited, as is torture and various other offenses. <b>So is subjecting captured enemy troops to the capturing nation’s CIVILIAN JUSTICE SYSTEM.</b> Prisoners found to have engaged in unlawful combat/war crimes (through a hearing process spelled out in the aforementioned agreements) are to be tried by <b>military court</b>, NOT civilian court.

3) Of the alternatives, indefinite detention is the only legal way to keep captured enemy forces from returning to the battlefield (that’s why we’ve done it in every other war).

History – including OUR OWN history – shows that when combatants escape or evade capture, they routinely rejoin friendly forces and return to the fight. This isn’t unique to bad-guys – the US military has a good list of medals awarded to troops who escaped from or evaded capture, then returned to friendly lines & re-entered combat. In this war, we have a Marine of Muslim descent, who after being captured in Iraq tricked his captors into releasing him to a neutral Muslim country with promises that he would desert – of course when he got there he immediately went to the US Embassy & returned to the Marines. In addition, there are documented cases of released EPWs returning to the fight against us in this war.

– We can’t shoot them – that’s kind of illegal and immoral (Yes, they’d do it to us, but the price of being good guys is, well, being good)…
– We can’t try them as civilians – they’re not civilians, and it’s illegal.
– Releasing them to a foreign country means they’ll be back in the fight against us as soon as they can find a way home (as a Soldier myself, that’s what I’d do to them if I managed to get captured & released alive (fat chance – which is why anything is preferable to capture in this war, but let’s allow the example))…
– (For Taliban captured in Afghanistan) Turning them over to the Afghans results in them being treated as civilian criminals by the Afghan government, and that results in their being released due to the Afghan rules of evidence being ridiculously too limited.

So that leaves the one thing every single nation has done during a war – lock them up in a POW camp, in military custody (a place like, um, Gitmo) until the war is over…

3) The notion that we are in danger of EPW measures being used against US citizens, on US soil & not engaged in hostilities against the United States, for political or other nefarious purpose is unjustified paranoia. We have been at war for over 10 years now, and it hasn’t happened. Now it’s understandable to hear various revolutionary movements complaining, because at their core you usually find extremists who are willing to levy war against the US to achieve political ends – and who want to make winning that war as hard as possible for the US. But for everyone else, it’s paranoia… Plain and simple…

Personally, I’d say the violent-revolutionary types should be more worried about what we’ll do to them if they actually try to have their revolution – getting captured & held for the duration is the least of worries (compared to being killed by vastly superior pro-US forces, or captured & executed for treason)….

 (http://www.redstate.com/dcacklam/2012/05/16/law-war-security-why-libertarians-are-wrong-about-indefinate-detention/