Civil Action 3

http://rcxloan.com/Civil_Action_Motion_3.htm

“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1

Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:

Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.

A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.

When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.

So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.

Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”

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United States District Court District of Massachusetts

Pierre Richard Augustin, PRO SE )
Plaintiff, )
)
v. ) C.A. No. 06-10368 (NMG)
)
DANVERSBANK, ET AL., )
Defendants. )

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S (Old Republic National Title Insurance Company) (“Old Republic’) MOTION TO DISMISS WITH SUPPORTING AUTHORITY


CERTIFICATION OF PERSONAL CONSULTATION
Plaintiff hereby certifies that on June 30, 2006 he hand delivered to the United States District Court of Massachusetts and has followed Rule 7.1(a)(2) prior filing his Memorandum of point and authorities in opposition to defendant’s motion to dismiss.

1. Emancipation Redress

"And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robberies or enemies, any and every method of protecting ourselves is morally right.”
Quoted on page 17 in Stephen P. Halbrook -- That Every Man Be Armed: The Evolution of a Constitutional Right, published in 1984 by The University of New Mexico Press and The Independent Institute.

Your Honor, in America, no one is considered to be above the law. The United States Constitution is considered the supreme law of the land both because of its content and because its authority is derived from the people.

Plaintiff strongly believes in the transparency of the judicial system in the United States of America to uphold the law in the search of Justice. For, it is the only forum whereby an average ‘Joe’ citizen like myself who never had any infraction with the law, was left with the only viable option of bankruptcy (as self-defense) to protect his property rights without money, status and political connection in seeking the emancipation and the redress from the violation of the law by defendants’ powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.

Intuitively, plaintiff recognizes that he is facing lawyers that are well schooled with an in-depth knowledge of the law and various courtroom strategies that he lacks. Although not a lawyer or pretending to be one, plaintiff action is symmetrical to many pro se individual from the early settlers in the state of Massachusetts who could not afford expensive legal representation in the search of fairness, equal protection and justice under the law.

Unequivocally, the paramount reason for plaintiff complaint against the defendants rest on the principle of Emancipation and Redress which are intertwined with his property rights as "the guardian of every other right". Thus, plaintiff arguments are based on the following Rule of Law and others as deemed appropriate:

1) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."

2) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”

3) 7th Amendment, “…The right of trial by jury shall be preserved.”

4) 14th Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5) Natural Rights, “Weakness allures the ruffian, but arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding citizens deprived of the use of them, and the weak will become a prey to the strong.” — Thomas Paine

6) Common Law, In Beard v. U.S.(158 U.S. 550, 1895), the Court approved the common law rule that a person "may repel force by force" in self-defense, and concluded that when attacked a person "was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force" as needed to prevent "great bodily injury or death."

7) Pro Se Litigants, “Courts are particularly cautious while inspecting pleading prepared by plaintiffs who lack counsel and are proceeding pro se. Often inartful, and rarely compose to the standards expected of practicing attorneys, pro se pleadings are viewed with considerable liberality and are held to less stringent standards than those expected of pleadings drafted by lawyers”. (Antonelli v. Shehan, 81 F. 3d 1422, 1427 (7th Cir. 1996)). Also, “parties appearing pro se are allowed greater latitude with respect to reasonableness of their legal theories (Patterson V. Aiker, 111 F.R.D. 354, 358 [N.D. GA 1986]) and according to section D of Rule 11 of the Federal Rule of Civil Procedure.

2. F.R.Civ.P. 12(b)(1) – The Court has power to adjudicate Plaintiff’s Claims before it (Note: defendant only cited FRCP 12(b) without specifying)
The facts and circumstances that brought the plaintiff under the Federal Court jurisdiction are that this complaint involve violations of Federal and State Law and the plaintiff and defendants are citizens of different states (see Verified Complaint, ¶12). As a whole, the complaint is based on actual count of facts and claims based on Federal Law since plaintiff has pursued and exhausted all administrative remedies prior the filing of this action in Court.

The issue is covered by the Rule of law which are 28 U.S.C § 1331, 28 U.S.C § 1332 and 28 U.S.C § 1391.

Analysis - The fact helps to prove that the rule was created by Article III of the U.S. Constitution expressly creates a federal court system, and Section 2 of that Article further declares that jurisdiction. Also, Federal Courts may hear only those cases involving federal laws, federal or sovereign parties (including states), or disputes between citizens from different states.

Conclusion - From the analysis, plaintiff comes to the Conclusion that based on the rule of law, the United States District Court, District Court of Massachusetts has venue and power to hear and decide on this case whose subject matter fits within the court's scope of authority. Hence, defendant’s motion to dismiss should be denied.

3. Plaintiff’s property was exempted according to 11 U.S.C. §541(1), 11 U.S.C. §522(b) and his responses to defendant’s 2nd and 3rd sentences of 2nd Paragraph and 3rd Paragraph on page 2
The facts and circumstances that brought the plaintiff to court were the result of DanversBank ‘deceitful acts and declarations’ and total disregard and illegality uses of the rule of law forced plaintiff in bankruptcy to protect his property rights. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home)). In the bankruptcy filing, plaintiff did list his house as exempt according to 11 U.S.C. §522(b). Plaintiff’s property listed as exempt has not been administered by the Trustee. Also, upon a phone conversation held with the office of the trustee on March 14, 2006, plaintiff was told that the Trustee has nothing to do with his property and to consult an attorney.

The issue is covered by a Rule of law 11 U.S.C. §541(1), 11 U.S.C. §522(b) and based on the Federal Rule of Bankruptcy Procedure of Rule 5009. Closing Chapter 7 Liquidation, which states, If in a chapter 7, chapter 12, or chapter 13 case the trustee has filed a final report and final account and has certified that the estate has been fully administered, and if within 30 days no objection has been filed by the United States trustee or a party in interest, there shall be a presumption that the estate has been fully administered.

Analysis – The fact helps to prove the rule since on April 17, 2006, the Trustee filed a Trustee’s Report of No Distribution states as follows: “…has received no property nor paid any money on account of the estate except exempt property, and diligent inquiry having been made, trustee states that there is no nonexempt property available for distribution to creditors. Pursuant to FRB 5009, trustee certifies that the estate is fully administered and requests that the report be approved and the trustee discharged from any further duties. (Entered: 04/17/2006 at the United States Bankruptcy Court, District of Massachusetts)”. Also, the usual ground for abandonment is that the property is of no value to the estate. No actual hearing is required as long as the trustee gives proper notice, provided no party in interest makes a timely request for a hearing. Also, the bankruptcy court may order the trustee to abandon property upon the motion of a party in interest. 11 U.S.C. §554 (b). Once the property is abandoned, title reverts to the debtor.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rules of law mentioned above are in order and the rules do apply to the facts and circumstances. Hence, defendant’s motion to dismiss should be denied.

4. Plaintiff’s Defense of Property Rights in Response to Defendant’s (Old Republic) 2nd sentence of 2nd ¶ of page 1
The facts and circumstances that brought the plaintiff to court is that Defendant violates his right to be heard. Plaintiff had pursued remedies from Department of Urban and Housing Development, his Mortgage company in terms of Refinancing, Danversbank itself, the Attorney General Office, the Consumer Protection Division of Massachusetts, Senator Edward M. Kennedy, Congressman Marty Meehan, Community Team works, the Small Business Administration and so many other agencies in hope to find some kind a way to alleviate the situation. In all instances or for the most part, plaintiff was told to speak to the Bank in question, but DanversBank refused to meet with him but suggested that he filed for Bankruptcy as a default remedy. Plaintiff exhausted all avenues and was forced into bankruptcy in order to protect his property rights. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home)).

The issue is covered by a Rule of law the Common Law which is analogous to the plaintiff’s dilemma as follows:

In Beard v. U.S. (158 U.S. 550, 1895), the Court approved the common law rule that a person "may repel force by force" in self-defense, and concluded that when attacked a person "was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force" as needed to prevent "great bodily injury or death."

Analysis – The fact helps to prove the rule of natural right of self-defense which is part of human nature in protecting life, liberty or property. Plaintiff could not have said it better than Thomas Paine, “Weakness allures the ruffian, but arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding citizens deprived of the use of them, and the weak will become a prey to the strong.” Therefore, the only ‘arms’ the plaintiff had to repel the undeniable violations of plaintiff’s civil rights, individual rights, due process and natural rights was to file for bankruptcy protection. The transcript under oath of the meeting with the Trustee will ascertain and testify to the fact that plaintiff was forced into bankruptcy without his will. Then, in the absence of filing for bankruptcy, plaintiff would not be in a position today to seek emancipation and redress from the court as described in the first amendment of the United States Constitution.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the analogous rule of law does apply to the fact. Hence, defendant motion to dismiss should be denied.

5. Plaintiff’s has standing [9(a)] in response to Defendant’s 2nd sentence of 3rd Paragraph on page 2
The facts and circumstances to be addressed in this section will demonstrate standing under Article III of the U.S. Constitution.

The issue is covered by a Rule of law by the Constitution of the United States of America as follows: "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances." — From the 1st Amendment. It is also based on the Rule 6009. Prosecution and Defense of Proceedings by Trustee or Debtor in Possession. With or without court approval, the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal. (emphasis added) It is based on the principle of equitable tolling which is a doctrine that allows plaintiff to sue after the statutory time limit has expired if they have been prevented from suing due to inequitable circumstances. Also, it is based on the three constitutional standing requirements as stated above: (1) Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual, imminent, distinct, and palpable, not abstract; (2) Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court; (3) Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

Analysis – The Supreme Court of the United States has stated, “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). As stated there, “The Judicial Power shall extend to all Cases . . . [and] to Controversies . . .” The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers. Allen v. Wright, 468 U.S. 737, 752 (1984). Federal courts may exercise power only “in the last resort, and as a necessity.” Id. at 752. Plaintiff has additional capacity and standing as prescribed by rule 6009 of the Federal Rule of Bankruptcy Proceeding which states that ‘with or without court approval, debtor …may initiate any action …before any tribunal’.

Transactions which involve a "federally related mortgage loan" fall under RESPA and must comply with those rules. As a practical matter, "federally related mortgage loans" include virtually all loans which are secured by a lien on residential property, regardless of lien position. RESPA defines "settlement services" broadly. The term "includes any service provided in connection with a real estate settlement including, but not limited to, the following: title searches, title examinations, the provision of title certificates, title insurance, services rendered by an attorney, the preparation of documents, property surveys, the rendering of credit reports or appraisals, pest and fungus inspections, services rendered by a real estate agent or broker, the origination of a federally related mortgage loan (including, but not limited to, the taking of loan applications, loan processing, and the underwriting and funding of loans), and the handling of the processing, and closing or settlement." 12 U.S.C. § 2602(3).

Also, based on the detail rebuttal made by plaintiff, he cannot find any ‘specific negative averment’ made by defendant (Old Republic) as outline in that rule. Bankruptcy rules state that (a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. The exception to that rule reflects plaintiff’s situation as stated: (c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title. On April 17, 2006, the Trustee filed a Report of No Distribution. Also, if the Trustee does not timely object to a claim of exemption, the property will be deemed exempt, even if there is no basis for the exemption. (Taylor v. Freeland & Kronz, 503 U.S. 638, 643-45 (1992).

The rule 6009 as stated above does not requires plaintiff to have court approval necessarily to bring what plaintiff consider as a natural right as described in Paragraph 1 of Emancipation Redress section E. Plaintiff needs to conduct discovery to fully trace and to expose all the facts and evidence to the jury. ('The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant (Ameriquest, Global Consultant Direct, Old Republic) in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'' (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.)). – To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy as described below in falsifying documents to stuck plaintiff with a high-cost mortgage. (Phelps Dodge v. United Steel Workers of America, 865 F.2d, 1541 (9th Cir. AZ, 1989), cert. denied 493 U.S. 809)

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Plaintiff alleges that Special damages are due, to be specifically stated at a future date although stated generally, due to the special circumstances of this case and the public policy issues involved. These damages can be pleaded with more particularity after the discovery process is completed. Then, in the absence of denying defendant’s motion to dismiss, plaintiff reaches the conclusion that his constitutional rights and rule 6009 of FRBP would be violated. Hence, defendant motion to dismiss should be denied.

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