Friday, December 11, 2009
Saturday, November 8, 2008
Request for Judicial Notice
“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?”
REQUEST FOR JUDICIAL NOTICE In Support of Request
for Emergency Motion to Issue Subpoenas Duces Tecum
FUNDAMENTAL BASIS OF ARGUMENT
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Honorable and Distinguish CHIEF JUDGE, May The Lord Almighty Bless You For Being A Dedicated Public Servant And Grant You More Wisdom, Knowledge And Understanding To Make Wiser Decisions On Behalf Of The Citizen Of The Greatest Nation On Earth, The United States Of America.
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof.
Your Honor, Extraordinary and Swift measures by our Political and Public Policy makers with the enacted $700 billion bill bailout for Wall Street on Friday, October 3, 2008 demands an ‘Equal Extraordinary, Unprecedented and
Exceptional’ ruling for [E]quality and [F]airness. Equally alarming are the consumer protection laws that evolved prior the widespread securitization of subprime mortgages are antiquated and not reflective of the current commercial transactions and [Present Tsunami of Financial Crisis].
“I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” - Elie Wiesel, a Holocaust victim and writer
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.” - Statement by a Presidential Candidate
“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)
A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court (common knowledge throughout the world of a $700 billion bailout law to financial institutions in the United States) or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Expert testimonies, public speeches by the President of the United States & member of both Houses of Congress regarding the root causes of bailout or see the ‘Statement by the Presidential Candidate Above‘)."
1. STANDING
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, “the Consumer Creditor must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.” Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm’n, 926 F. 2d 573, 576 (6th Cir. 1991)).
To satisfy the requirements of Article III of the United States Constitution, the Consumer Creditor must show he has personally suffered some actual injury as a result of the illegal conduct of the parties in his case by depriving him of his property rights. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
A person has standing if the Court order “diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights.” Williams v. Marlar (In re Marlar), 267 F.3d 749, 753 n.1 (8th Cir. 2001). The mere loss of a statutory right to disclosure is an injury that gives Consumer Creditor standing for Article III purposes (DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000).
2. JURISDICTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Personal jurisdiction is lawfully exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a jurisdiction and has had notice and opportunity (is in receipt of service and has a copy of the petition, claim, or complaint). If these elements are complete, personal jurisdiction CANNOT BE DENIED.
Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events other than sufficient pleadings. Also, the Federal Reserve Act that allows banking is not a state issue as well as, but a Federal issue which falls within the jurisdiction of the District Court.
3. REFLECTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Three years ago, unable to afford and to obtain legal representation to prevent the lost of his primary residence in Lowell, Massachusetts, Consumer Creditor ventured in the Federal Court system in search of [R]edress and [F]airness. Consumer Creditor has relied on the help of the Almighty to grant him wisdom, knowledge, understanding to quickly grasp legal concepts in order to articulate his written legal argument to the best of his given abilities.
In Picking, the Consumer Creditors civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a Consumer Creditor pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe Consumer Creditors pleading without regard to technicalities. Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals.
In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965), it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." From this vantage point, courts are reluctant to dismiss complaints unless it appears the Consumer Creditor can prove no set of facts in support of his claim which would entitle him to relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint requires a less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said Justice Black in Conley v. Gibson . 355 U.S. 41 at 48(1957)
The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice."
Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates (2/28) from New Century Mortgage. In reality, it was a predatory loan. It is similar to what Countrywide had issued to borrowers nationwide and prompted Bank of America to settle with many states’ Attorneys General. (See Exhibit for the full story)
Based on the cited cases above, NEW Relevant Evidences from the root causes of the current Financial Crisis, recent settlement by Bank Of America with at least 10 Attorney Generals on risky mortgage loans similar to that given to Consumer Creditor and the law review article on ‘Predatory Structured Finance‘ provided in the exhibits, May the Court grant the request for issuing Subpoena Duces Tecum to depose the non-parties witnesses within the Court jurisdiction.
“Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.” - Christopher A. Boyko, U. S. District Judge
4. PRECENDENT CASE OF JUDICIAL NOTICE
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“Abraham Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. Allen claimed he saw Norris and then Armstrong strike Metzker in the head. The prosecution used Allen's eyewitness testimony to convict Norris.
During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client.
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”
Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice that the underlying causes of mortgage fraud and loose underwritings were the root causes of massive foreclosures today that ultimately led to the historical and unprecedented Emergency Economic Stabilization Act of 2008 that grants the Treasury Secretary unprecedented authority to buy up to $700 billion of Toxic Assets (bad & risky otherwise predatory mortgage loans made to borrowers in the U.S. (see article entitled ‘Predatory Structured Finance in Exhibits‘) from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up both in the U.S. and abroad.
5. EMERGENCY ECONOMIC RECOVERY BILL OF 2008
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits” from $100,000 to $250,000.
Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis. According to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that:
"Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Consumer Creditor has been arguing in his pleadings and motions before the Federal Courts.
CONCLUSION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:
''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Counsels in this case are not without legal objections and legal technicalities so as to avoid the litigation based on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities and irrefutable common knowledge of providing predatory loans to borrowers such as Consumer Creditor in accordance to their Attorney’s Oath to support the Constitution of the United States:
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”
According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.’’ It could also be argued that to dismiss a civil rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violation of procedural due process as it would deprive a pro-se litigant of equal protection of the law vis-a-vis a party who is represented by counsel.
Consumer Creditor recognizes that he is facing a milestone and an uphill battle against lawyers that are well schooled with an in-depth knowledge of the law, influences, technical maneuvers and equipped with various inside scoop of courtroom strategies that he lacks. Although not a lawyer or pretending to be one, Consumer Creditor need not specify specific statutes or regulations that entitle him to relief; this court should examine this motion on any possible legal theory or as the court judge just to bring about a fair and equitable resolution (Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
In a fair system, victory should go to a party who has the better case, not the better representation. Mr. Augustin (Consumer Creditor) is a victim of predatory lending and civil conspiracy of mortgage fraud. The financial institutions ultimately deprived him of his property rights with an illegal and unwarranted foreclosure to name a few violations. To further support his argument, Consumer Creditor has submitted as ‘Documented Evidences’ a law review article entitled “Predatory Structured Finance” by Christopher L. Peterson published in the Cardozo Law Review (see Exhibit).
1. Request To Obtain Subpoena Duces Tecum Based On The Merits
Likewise, “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])”. Also, the court is supposed to judge this motion based on its merits even if procedural errors are made. Thus, the Court must give this Consumer Creditor, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).
Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of the Non-Parties Witnesses. Consumer Creditor is seeking the Subpoenas from this Court to operate within the confinement of the law in litigating his claims fully based on the merits by seeking information likely to lead to admissible evidences (See Exhibits).
Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection).
[“In federal diversity actions, state law governs substantive issues and federal law governs procedural issues.” Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d 286, 289 (6 Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6 Cir. 1993). Consumer Creditor’s, “Judge, you just don’t understand how things work,” argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property. There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution’s favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit — to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate” (Christopher A. Boyko, United States District Judge).
In retrospect, Martin Luther King could not have said it better:
“But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. For at the real heart of battle for equality is a deep seated belief in the democratic process.“
[E]quality and [F]airness cannot co-exist if Consumer Creditor is not allowed to FULLY litigate his claims based on the merit as a result of the NEW Relevant Evidences submitted as possible admissible evidences. Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Society is composed of individuals. In the name of society’s public interest and good, protection of Consumer Creditor’s rights arguably becomes part of the public interest and good which in turn benefits some members of the population who were given risky loans and harms no members of society in the process.
Lastly, Consumer Creditor stands before this court with a sense of sadness for the ongoing foreclosure and financial crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, public schools, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
Thank you for taking ‘Judicial Notice’ of these NEW relevant evidences submitted and May the Honorable Chief Judge grant the request for the Subpoenas Duces Tecum as the Court deems just and proper. May God Bless you, America and our leaders.
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor, 3941 Persimmon Drive, #102
Fairfax, VA 22031 (617)202-8069
----------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
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?”
REQUEST FOR JUDICIAL NOTICE In Support of Request
for Emergency Motion to Issue Subpoenas Duces Tecum
FUNDAMENTAL BASIS OF ARGUMENT
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Honorable and Distinguish CHIEF JUDGE, May The Lord Almighty Bless You For Being A Dedicated Public Servant And Grant You More Wisdom, Knowledge And Understanding To Make Wiser Decisions On Behalf Of The Citizen Of The Greatest Nation On Earth, The United States Of America.
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof.
Your Honor, Extraordinary and Swift measures by our Political and Public Policy makers with the enacted $700 billion bill bailout for Wall Street on Friday, October 3, 2008 demands an ‘Equal Extraordinary, Unprecedented and
Exceptional’ ruling for [E]quality and [F]airness. Equally alarming are the consumer protection laws that evolved prior the widespread securitization of subprime mortgages are antiquated and not reflective of the current commercial transactions and [Present Tsunami of Financial Crisis].
“I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” - Elie Wiesel, a Holocaust victim and writer
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.” - Statement by a Presidential Candidate
“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)
A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court (common knowledge throughout the world of a $700 billion bailout law to financial institutions in the United States) or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Expert testimonies, public speeches by the President of the United States & member of both Houses of Congress regarding the root causes of bailout or see the ‘Statement by the Presidential Candidate Above‘)."
1. STANDING
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, “the Consumer Creditor must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.” Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm’n, 926 F. 2d 573, 576 (6th Cir. 1991)).
To satisfy the requirements of Article III of the United States Constitution, the Consumer Creditor must show he has personally suffered some actual injury as a result of the illegal conduct of the parties in his case by depriving him of his property rights. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
A person has standing if the Court order “diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights.” Williams v. Marlar (In re Marlar), 267 F.3d 749, 753 n.1 (8th Cir. 2001). The mere loss of a statutory right to disclosure is an injury that gives Consumer Creditor standing for Article III purposes (DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000).
2. JURISDICTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Personal jurisdiction is lawfully exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a jurisdiction and has had notice and opportunity (is in receipt of service and has a copy of the petition, claim, or complaint). If these elements are complete, personal jurisdiction CANNOT BE DENIED.
Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events other than sufficient pleadings. Also, the Federal Reserve Act that allows banking is not a state issue as well as, but a Federal issue which falls within the jurisdiction of the District Court.
3. REFLECTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Three years ago, unable to afford and to obtain legal representation to prevent the lost of his primary residence in Lowell, Massachusetts, Consumer Creditor ventured in the Federal Court system in search of [R]edress and [F]airness. Consumer Creditor has relied on the help of the Almighty to grant him wisdom, knowledge, understanding to quickly grasp legal concepts in order to articulate his written legal argument to the best of his given abilities.
In Picking, the Consumer Creditors civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a Consumer Creditor pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe Consumer Creditors pleading without regard to technicalities. Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals.
In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965), it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." From this vantage point, courts are reluctant to dismiss complaints unless it appears the Consumer Creditor can prove no set of facts in support of his claim which would entitle him to relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint requires a less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said Justice Black in Conley v. Gibson . 355 U.S. 41 at 48(1957)
The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice."
Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates (2/28) from New Century Mortgage. In reality, it was a predatory loan. It is similar to what Countrywide had issued to borrowers nationwide and prompted Bank of America to settle with many states’ Attorneys General. (See Exhibit for the full story)
Based on the cited cases above, NEW Relevant Evidences from the root causes of the current Financial Crisis, recent settlement by Bank Of America with at least 10 Attorney Generals on risky mortgage loans similar to that given to Consumer Creditor and the law review article on ‘Predatory Structured Finance‘ provided in the exhibits, May the Court grant the request for issuing Subpoena Duces Tecum to depose the non-parties witnesses within the Court jurisdiction.
“Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.” - Christopher A. Boyko, U. S. District Judge
4. PRECENDENT CASE OF JUDICIAL NOTICE
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“Abraham Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. Allen claimed he saw Norris and then Armstrong strike Metzker in the head. The prosecution used Allen's eyewitness testimony to convict Norris.
During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client.
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”
Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice that the underlying causes of mortgage fraud and loose underwritings were the root causes of massive foreclosures today that ultimately led to the historical and unprecedented Emergency Economic Stabilization Act of 2008 that grants the Treasury Secretary unprecedented authority to buy up to $700 billion of Toxic Assets (bad & risky otherwise predatory mortgage loans made to borrowers in the U.S. (see article entitled ‘Predatory Structured Finance in Exhibits‘) from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up both in the U.S. and abroad.
5. EMERGENCY ECONOMIC RECOVERY BILL OF 2008
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits” from $100,000 to $250,000.
Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis. According to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that:
"Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Consumer Creditor has been arguing in his pleadings and motions before the Federal Courts.
CONCLUSION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:
''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Counsels in this case are not without legal objections and legal technicalities so as to avoid the litigation based on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities and irrefutable common knowledge of providing predatory loans to borrowers such as Consumer Creditor in accordance to their Attorney’s Oath to support the Constitution of the United States:
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”
According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.’’ It could also be argued that to dismiss a civil rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violation of procedural due process as it would deprive a pro-se litigant of equal protection of the law vis-a-vis a party who is represented by counsel.
Consumer Creditor recognizes that he is facing a milestone and an uphill battle against lawyers that are well schooled with an in-depth knowledge of the law, influences, technical maneuvers and equipped with various inside scoop of courtroom strategies that he lacks. Although not a lawyer or pretending to be one, Consumer Creditor need not specify specific statutes or regulations that entitle him to relief; this court should examine this motion on any possible legal theory or as the court judge just to bring about a fair and equitable resolution (Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
In a fair system, victory should go to a party who has the better case, not the better representation. Mr. Augustin (Consumer Creditor) is a victim of predatory lending and civil conspiracy of mortgage fraud. The financial institutions ultimately deprived him of his property rights with an illegal and unwarranted foreclosure to name a few violations. To further support his argument, Consumer Creditor has submitted as ‘Documented Evidences’ a law review article entitled “Predatory Structured Finance” by Christopher L. Peterson published in the Cardozo Law Review (see Exhibit).
1. Request To Obtain Subpoena Duces Tecum Based On The Merits
Likewise, “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])”. Also, the court is supposed to judge this motion based on its merits even if procedural errors are made. Thus, the Court must give this Consumer Creditor, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).
Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of the Non-Parties Witnesses. Consumer Creditor is seeking the Subpoenas from this Court to operate within the confinement of the law in litigating his claims fully based on the merits by seeking information likely to lead to admissible evidences (See Exhibits).
Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection).
[“In federal diversity actions, state law governs substantive issues and federal law governs procedural issues.” Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d 286, 289 (6 Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6 Cir. 1993). Consumer Creditor’s, “Judge, you just don’t understand how things work,” argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property. There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution’s favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit — to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate” (Christopher A. Boyko, United States District Judge).
In retrospect, Martin Luther King could not have said it better:
“But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. For at the real heart of battle for equality is a deep seated belief in the democratic process.“
[E]quality and [F]airness cannot co-exist if Consumer Creditor is not allowed to FULLY litigate his claims based on the merit as a result of the NEW Relevant Evidences submitted as possible admissible evidences. Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Society is composed of individuals. In the name of society’s public interest and good, protection of Consumer Creditor’s rights arguably becomes part of the public interest and good which in turn benefits some members of the population who were given risky loans and harms no members of society in the process.
Lastly, Consumer Creditor stands before this court with a sense of sadness for the ongoing foreclosure and financial crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, public schools, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
Thank you for taking ‘Judicial Notice’ of these NEW relevant evidences submitted and May the Honorable Chief Judge grant the request for the Subpoenas Duces Tecum as the Court deems just and proper. May God Bless you, America and our leaders.
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor, 3941 Persimmon Drive, #102
Fairfax, VA 22031 (617)202-8069
----------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Letter To Preserve Information
“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?”
Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 703-584-5998, Email: hdmhos@aol.com
October 23, 2008
Attorney David W. Carickhoff, Jr
Blank Rome LLP, Chase Manhattan Centre, 1201 Market Street, Suite 800, Wilmington, DE 19801 Records Custodian for New Century TRS Holding, Inc. & Attorney, Christopher M. Samis, Richards, Layton & Finger, P.A. , 920 N. King Street, Wilmington, DE 19801
CERTIFIED MAIL: 7007 3020 0002 3324 9198
Re: New Century TRS Holding, Inc., New Century Liquidating Trustee v. Pierre R. Augustin, Pro Se, Case #: 07-10416, Chapter 11
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Dear Attorney Carickhoff, Jr., Records Custodian for New Century, Attorneys for Non-Parties & Non-Parties Witnesses (see list of parties):
The purpose of this letter is to notify you that you may have in your possession, or under your control, certain documents and information, including electronically or digitally stored information relevant to the discovery process of the case above. In addition, you, agents, employees & Counsels for Non-Parties Witnesses and Non-Parties Witnesses themselves may have knowledge of facts relevant to matters likely to lead to admissible evidence.
The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Please keep in mind of the following:
Federal Rule 26(a)(1)(E), Federal Rule 26(a)(2), Federal Rule 26(a)(3)
Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
“When discovery rights are trampled, prejudice must be presumed”
Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003)
The filing of this letter with the Federal Courts Will Serve
As Proof of Notification to All Counsels for the Non-Parties Witnesses
and on Non-Parties Witness themselves.
1. BUSINESS RECORDS -- MISSING EVIDENCE -- SPOLIATION
“Spoliation” can be defined as the failure to preserve evidence that is relevant to pending or potential litigation (Jimenez-Sanchez v. Carribean Restaurants, L.L.C, 483 Fed.Supp.2d 140 (D. Puerto Rico 2007)). The actual keeper or custodian of the evidence is irrelevant for discovery purposes. Counsel for New Century TRS Holding, Inc., handing files and documents to New Century Liquidating Trustee’s Counsel as in this case does not shield otherwise discoverable ‘REAL’ evidence. Moreover, New Century Mortgage Corporation had a duty to preserve evidence. Thus, New Century Mortgage Corporation should have known that evidence may be relevant to future litigation as a result of Mr. Augustin’s civil suit (06-10368) and Bankruptcy matter (05-46957).
Because preservation of documents and availability for production are essential to the orderly and expeditious disposition of litigation, the inability to produce documents impedes the litigation process and merits sanctions (See in re Prudential Insurance Company of America Sales Practice Litig., 169 F.R.D. 598, 36 FED.R.Serv.3d 767 (D.N.J. 1997)). As far as electronic discovery, the producing party is obligated to search available electronic systems for the information demanded in discovery. The willful failure to comply with a discovery demand should be construed as an intentional failure as distinguished from involuntary noncompliance; no wrongful intent need be shown to impose discovery sanctions (See Smith v. City of New York, 388 Fed.Supp.2d 179 (S.D.N.Y., 2005)(Sanctions may be imposed for both intentional and negligent destruction of evidence)(Martinez v. Abbott Laboratories, 146 S.W.3d 260 (Tex. App. 2004).
The duty to preserve evidence arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim)(Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D., Tenn., 2005). Under the rule generally governing discovery, a party must not destroy unique, relevant evidence that might be useful to Consumer Creditor and this includes any document made by an individual likely to have discoverable information that the disclosing party may use to support its claim or defenses. The duty to preserve evidence, set forth in the rule that generally governs discovery, extends to all relevant documents from the time the trigger date passes, and continues thereafter.
If documents sought during discovery are destroyed or cannot be located, then that party must provide an explanation for the disappearance of the evidence. There are several factors that the court should utilize in determining whether or not to impose sanctions: [a] - A party destroys, [b] - discoverable matter, [c] - which that party knew or should have known and [d] - was relevant to pending, imminent or reasonably foreseeable litigation.
The following additional factors are considered: [1] - The degree of actual prejudice to the demanding party, [2]-The amount of interference with the judicial process, [3] - The culpability of the responding party, and [4] - Whether or not the responding party was forewarned about the sanctions for noncompliance.
A party has a duty to preserve evidence when that party is placed on notice that evidence is relevant to the subject litigation or when the party should have known that evidence may be relevant to future litigation. One remedy is the so-called “Missing Document Charge,” wherein the jury is specifically informed about the missing document and is told that it may infer that the missing evidence was most unfavorable to the spoliator. See Think Pink, Inc. v. Rim, Inc., 798 N.Y.S.2d 413 (N.Y.A.D., 1 Dept., 2005). Conclusively, if document are reported missing and cannot be located by the opposing counsels, parties and non-parties witnesses, Consumer Creditor will simply infer that the missing evidence was most unfavorable to them.
2. NOTICE TO PRESERVE DOCUMENTS
Pursuant to a duty imposed by law, This Notice and the applicable court rules require the preservation of all information from your Company’s computers and computer storage systems (including tapes, drives, CD’s and DVD’s), regardless of location, relating to this matter. This includes, but is not limited to, all computer files, e-mail and other electronic communications, databases, word processing documents, PDF’s, spreadsheets, calendars, telephone logs, contact information, Internet usage files, and network access information.
For purposes of this notice, the term “electronic information” includes, but is not limited to, all text files, word processing documents, presentation files such as PowerPoint, spreadsheets, e-mail files and information concerning e-mail files (including logs of e-mail, header information, and deleted files), Internet history files and preferences, graphical files in any format, databases, calendar and scheduling information, telephone logs, contact managers, computer activity logs, and all file fragments and backup files containing electronic data.
Upon receipt of this notice, you are prohibited from destroying, erasing, or over-writing any documents, emails, or other writings that relate to the lawsuit, regardless of their physical form, type or date. Extra care must be taken for electronic writings, which can be erased by the mere storage of new data. Your client should preserve and not destroy all passwords, decryption procedures, network access codes, ID names, tutorials, written instructions, decompression or reconstruction software, in addition to all other information necessary to access, view and, if necessary, reconstruct the electronic data that we will request through discovery.
You are under a legal obligation to preserve, maintain, and protect all potential relevant evidence, including electronic evidence. The failure to preserve and retain the electronic data as outlined in this notice constitutes a spoliation of evidence and may subject you to legal claims for damages in addition to evidentiary and monetary sanctions.
3. INITIAL “REQUIRED OR MANDATORY DISCLOSURES” REMINDER - [F.R.C.P. 26(a)]
According to the United States Supreme Court, the purpose behind Rule 37 of the Federal Rules of Civil Procedure was to protect the courts and opposing parties from “delaying or harassing tactics during the discovery process (Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999)). An attorney filing a responsive discovery pleading on behalf of a client must certify that he or she made a reasonable effort to see to it that the client has provided all of the information requested. See Poole v. Textron, 192 F.R.D. 494 (D.Md. 2000) and Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997).
Once a motion has been filed, the opposing party may not necessarily be able to avoid its consequences, even if he or she files a late response to your discovery requests. See Greenbriar Homes, Inc. v. Builders Insurance, 615 S.E.2d 191, 273 Ga. App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless, required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.
In accordance with Rule 26(a)(1) of the Federal Rules of Civil Procedure, Consumer Creditor is reminding Counsels for New Century TRS Holding, Inc. & New Century Liquidating Trustee to provide their mandatory disclosure as follows:
This Is A Reminder To Provide ‘Initial Mandatory Disclosures’ From Previous Notice To Produce
1. In Exhibit 1, New Century Mortgage denied the mortgage application on January 22, 2004.
Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
2. In Exhibit 2, New Century Mortgage denied the mortgage application on March 9, 2004. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
3. In Exhibit 3, Commonwealth Land Title Insurance Company (Non-Party) reported on March 29, 2004 that the title was clear for closing. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
4. In Exhibit 4, Consumer Creditor and a Party In Interest was issued a mortgage. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
In accordance to FRCP 26(a)(1)(A), you must voluntarily disclose additional names, addresses and telephone numbers of each individual & non-parties likely to have discoverable information. The disclosure must also clearly indicate “The subjects of the information” of each these individuals knows, their title, company affiliation, copy of their job description and to whom they report at their respective companies.
4. FULL DISCOVERIES RIGHTS GRANTED By Judge Kevin J. Carey on August 20, 2008, Extracted from August 20, 2008 Transcript, page 69
“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --
THE COURT: Yeah. Well, the --
MR. AUGUSTIAN: -- let the Court know.
THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?
MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record.
Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.
5. NON-PARTIES ORDINARY WITNESSES
Please review the certificate of service for the complete lists of non-parties ordinary witnesses and their attorneys in the above matter. Non Parties Witnesses (someone and companies) are not a party in this matter but the records they hold have some bearing on his claims and New Century Mortgage Corporation had transactions with the non-parties in relation to Consumer Creditor’s mortgage and business loan.
Rule 34 of the Federal Rules of Civil Procedure, which provides that “any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the request or’s behalf, to inspect and copy, any designated docu ments (including writings, drawings, graphs, charts, photographs, phono records, and other data compila tions from which information can be obtained, trans lated, if necessary, by the respondent through detec tion devices into reasonably usable form) ...” [Emphasis supplied]. Rule 1001(1) of the Federal Rules of Evidence provides: “Writings” and “recordings” consist of letters, words or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation [Emphasis supplied]. Therefore, Non-Parties Witnesses are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.
6. NOTICE TO REQUEST ‘RAW FACTS & REAL EVIDENCE’ from All Counsels of Non-Parties & Non-Parties Witnesses
Now the time has come, in view of the financial crisis, for the opposing Counsels to move behind the legal technicalities and abide by their oath for due diligences…
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God”
… because the $700 billion bailout to Financial Institutions on Wall Street by our Political Leaders and Public Officials resulted out from poor mortgage underwriting practices encouraged by the banks involved in this matter.
Reflectively, Consumer Creditor stands before the opposing Counsels with a sense of sadness for the ongoing foreclosure crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
The timing of these economical, financial and operative facts mentioned above are intertwined with Consumer Creditor’s matter and are always considered fair game for discoveries. So too are the legal theories and defenses of the action along with all real evidence that any party has obtain or discover (Myers v. City of Highland Village, 212 F.R.D. 324 (E.D. Tex. 2003). The scope of permissible discovery under the Federal Rules of Civil Procedure as with all of its state counterparts is very broad. Rule 26(b)(1) specifically permits discovery of “any matter, not privileged, which is relevant” with respect to any “claim” or “defense.”
The subsection then takes the trouble to list certain examples, such as “books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” If there is any point or purpose at all to the discovery process, it must enable Consumer Creditor’s access to those raw facts and pieces of “hard evidence” that form the underlying basis for the subject matter. These are the one-of-a-kind materials and information that the court have always make available through discovery.
(Extract from the August 20, 2008 Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them)
Experts who are to testify and who also provide analysis, guidance, reports and opinions are witnesses nonetheless. An expert may wear the hat of a “consultant,” but his status as a testifying witness trumps the consultant status. In particular, as a testifying expert, he is certainly subject to discovery. Rule 26(a)(2)(B) mandates both the preparation and disclosure of a written signed report. According to that rule, the report:
“... shall contain a com plete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”
The Counsels should not use the Work Product Doctrine as a device for hiding facts or evidence that are discoverable. Those hoping to erect a shield for such information often mix the hard evidence with work product materials, or try to mis-characterize such evidence as work product United States v. Dentsply Int’l, 187 F.R.D. 152 (D.Del. 1999); United States v. Frederick, 182 F.3d 496 (7th Cir. Wis. 1999); Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626 (D.Kan. 1999). Common sense dictates that all parties should be entitled to know the underlying predicates and defenses of all of the other parties.
CONCLUSION
The Advisory Committee Notes for the 2006 amendments to Rule 34(b) state as follows: Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. As provided in Rule 45, If requested documents are within the control of a party upon whom a valid request is made, that party must obtain and produce those documents (Pleasant v. Pleasant, 632 A.2d 202, 97 Md.App. 711 (1993)). If you have any questions whatsoever, my contact information is below. Thank you.
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se, Consumer Creditor
3941 Persimmon Drive, #102, Fairfax, VA 22031 Tel: (617) 202-8069
Cc: Counsels for Non-Parties Witnesses & Non-Parties Witnesses
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this letter was mailed to the parties and attorneys below.

Pierre R. Augustin, Pro Se, 3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069 Cert# = Confirmation of receiving Notice to Depose
Attorneys, non-parties and parties served
Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166
Status: Delivered
Your item was delivered at 9:04 AM on October 10, 2008 in MANCHESTER, NH 03101.
Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197
Status: Delivered
Your item was delivered at 7:03 AM on October 14, 2008 in WILMINGTON, DE 19801.
Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274. Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173
Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.
Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.
Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180
Status: Delivered
Your item was delivered at 10:58 AM on October 7, 2008 in SAN DIEGO, CA 92127.
Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.
Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.
Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.
Legal Department
Small Business Administration (SBA)
SBA Loan#: LDP5329494000
SBA Loan Name: Admerk Corp. Inc.
Note date: May 17, 2002
Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.
Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
Real Time Solution, Inc.
1750 Regal Row, Ste 120
Dallas, TX 75235
Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400
Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy
President
Tedd Chambler
Commonwealth Land Title Insurance Company Inc
5600 Cox Rd
Glen Allen, VA 23060-9266
United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900
U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491
President
Thomas Jacob
Chase Home Finance
194 Wood Ave S # 2
Iselin, NJ 08830
Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423
Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845
Deutsche Bank National Trust
300 S. Grand Ave, Ste 3950
Los Angeles, CA 90071
Chairman and CEO
Timothy P. (Tim) Flynn
KPMG LLP (“KPMG”)
757 Third Ave.
New York, NY 10017
President
Deven Sharma
Standard and Poor’s
55 Water Street
New York, New York 10041
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered
Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.
Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered
Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.
Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered
Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered
Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.
Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.
CEO, Aseem Mital
Ameriquest Mortgage Company
1100 Town & Country Rd., Suite 1200
Orange, California 92868
R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.
Ameriquest Mortgage Company
John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered
Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered
Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.
DanversBank
Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered
Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered
Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.
Samuel P. Reef
Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494. Alen H. Segal
---------------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
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?”
Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 703-584-5998, Email: hdmhos@aol.com
October 23, 2008
Attorney David W. Carickhoff, Jr
Blank Rome LLP, Chase Manhattan Centre, 1201 Market Street, Suite 800, Wilmington, DE 19801 Records Custodian for New Century TRS Holding, Inc. & Attorney, Christopher M. Samis, Richards, Layton & Finger, P.A. , 920 N. King Street, Wilmington, DE 19801
CERTIFIED MAIL: 7007 3020 0002 3324 9198
Re: New Century TRS Holding, Inc., New Century Liquidating Trustee v. Pierre R. Augustin, Pro Se, Case #: 07-10416, Chapter 11
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Dear Attorney Carickhoff, Jr., Records Custodian for New Century, Attorneys for Non-Parties & Non-Parties Witnesses (see list of parties):
The purpose of this letter is to notify you that you may have in your possession, or under your control, certain documents and information, including electronically or digitally stored information relevant to the discovery process of the case above. In addition, you, agents, employees & Counsels for Non-Parties Witnesses and Non-Parties Witnesses themselves may have knowledge of facts relevant to matters likely to lead to admissible evidence.
The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Please keep in mind of the following:
Federal Rule 26(a)(1)(E), Federal Rule 26(a)(2), Federal Rule 26(a)(3)
Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
“When discovery rights are trampled, prejudice must be presumed”
Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003)
The filing of this letter with the Federal Courts Will Serve
As Proof of Notification to All Counsels for the Non-Parties Witnesses
and on Non-Parties Witness themselves.
1. BUSINESS RECORDS -- MISSING EVIDENCE -- SPOLIATION
“Spoliation” can be defined as the failure to preserve evidence that is relevant to pending or potential litigation (Jimenez-Sanchez v. Carribean Restaurants, L.L.C, 483 Fed.Supp.2d 140 (D. Puerto Rico 2007)). The actual keeper or custodian of the evidence is irrelevant for discovery purposes. Counsel for New Century TRS Holding, Inc., handing files and documents to New Century Liquidating Trustee’s Counsel as in this case does not shield otherwise discoverable ‘REAL’ evidence. Moreover, New Century Mortgage Corporation had a duty to preserve evidence. Thus, New Century Mortgage Corporation should have known that evidence may be relevant to future litigation as a result of Mr. Augustin’s civil suit (06-10368) and Bankruptcy matter (05-46957).
Because preservation of documents and availability for production are essential to the orderly and expeditious disposition of litigation, the inability to produce documents impedes the litigation process and merits sanctions (See in re Prudential Insurance Company of America Sales Practice Litig., 169 F.R.D. 598, 36 FED.R.Serv.3d 767 (D.N.J. 1997)). As far as electronic discovery, the producing party is obligated to search available electronic systems for the information demanded in discovery. The willful failure to comply with a discovery demand should be construed as an intentional failure as distinguished from involuntary noncompliance; no wrongful intent need be shown to impose discovery sanctions (See Smith v. City of New York, 388 Fed.Supp.2d 179 (S.D.N.Y., 2005)(Sanctions may be imposed for both intentional and negligent destruction of evidence)(Martinez v. Abbott Laboratories, 146 S.W.3d 260 (Tex. App. 2004).
The duty to preserve evidence arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim)(Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D., Tenn., 2005). Under the rule generally governing discovery, a party must not destroy unique, relevant evidence that might be useful to Consumer Creditor and this includes any document made by an individual likely to have discoverable information that the disclosing party may use to support its claim or defenses. The duty to preserve evidence, set forth in the rule that generally governs discovery, extends to all relevant documents from the time the trigger date passes, and continues thereafter.
If documents sought during discovery are destroyed or cannot be located, then that party must provide an explanation for the disappearance of the evidence. There are several factors that the court should utilize in determining whether or not to impose sanctions: [a] - A party destroys, [b] - discoverable matter, [c] - which that party knew or should have known and [d] - was relevant to pending, imminent or reasonably foreseeable litigation.
The following additional factors are considered: [1] - The degree of actual prejudice to the demanding party, [2]-The amount of interference with the judicial process, [3] - The culpability of the responding party, and [4] - Whether or not the responding party was forewarned about the sanctions for noncompliance.
A party has a duty to preserve evidence when that party is placed on notice that evidence is relevant to the subject litigation or when the party should have known that evidence may be relevant to future litigation. One remedy is the so-called “Missing Document Charge,” wherein the jury is specifically informed about the missing document and is told that it may infer that the missing evidence was most unfavorable to the spoliator. See Think Pink, Inc. v. Rim, Inc., 798 N.Y.S.2d 413 (N.Y.A.D., 1 Dept., 2005). Conclusively, if document are reported missing and cannot be located by the opposing counsels, parties and non-parties witnesses, Consumer Creditor will simply infer that the missing evidence was most unfavorable to them.
2. NOTICE TO PRESERVE DOCUMENTS
Pursuant to a duty imposed by law, This Notice and the applicable court rules require the preservation of all information from your Company’s computers and computer storage systems (including tapes, drives, CD’s and DVD’s), regardless of location, relating to this matter. This includes, but is not limited to, all computer files, e-mail and other electronic communications, databases, word processing documents, PDF’s, spreadsheets, calendars, telephone logs, contact information, Internet usage files, and network access information.
For purposes of this notice, the term “electronic information” includes, but is not limited to, all text files, word processing documents, presentation files such as PowerPoint, spreadsheets, e-mail files and information concerning e-mail files (including logs of e-mail, header information, and deleted files), Internet history files and preferences, graphical files in any format, databases, calendar and scheduling information, telephone logs, contact managers, computer activity logs, and all file fragments and backup files containing electronic data.
Upon receipt of this notice, you are prohibited from destroying, erasing, or over-writing any documents, emails, or other writings that relate to the lawsuit, regardless of their physical form, type or date. Extra care must be taken for electronic writings, which can be erased by the mere storage of new data. Your client should preserve and not destroy all passwords, decryption procedures, network access codes, ID names, tutorials, written instructions, decompression or reconstruction software, in addition to all other information necessary to access, view and, if necessary, reconstruct the electronic data that we will request through discovery.
You are under a legal obligation to preserve, maintain, and protect all potential relevant evidence, including electronic evidence. The failure to preserve and retain the electronic data as outlined in this notice constitutes a spoliation of evidence and may subject you to legal claims for damages in addition to evidentiary and monetary sanctions.
3. INITIAL “REQUIRED OR MANDATORY DISCLOSURES” REMINDER - [F.R.C.P. 26(a)]
According to the United States Supreme Court, the purpose behind Rule 37 of the Federal Rules of Civil Procedure was to protect the courts and opposing parties from “delaying or harassing tactics during the discovery process (Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999)). An attorney filing a responsive discovery pleading on behalf of a client must certify that he or she made a reasonable effort to see to it that the client has provided all of the information requested. See Poole v. Textron, 192 F.R.D. 494 (D.Md. 2000) and Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997).
Once a motion has been filed, the opposing party may not necessarily be able to avoid its consequences, even if he or she files a late response to your discovery requests. See Greenbriar Homes, Inc. v. Builders Insurance, 615 S.E.2d 191, 273 Ga. App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless, required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.
In accordance with Rule 26(a)(1) of the Federal Rules of Civil Procedure, Consumer Creditor is reminding Counsels for New Century TRS Holding, Inc. & New Century Liquidating Trustee to provide their mandatory disclosure as follows:
This Is A Reminder To Provide ‘Initial Mandatory Disclosures’ From Previous Notice To Produce
1. In Exhibit 1, New Century Mortgage denied the mortgage application on January 22, 2004.
Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
2. In Exhibit 2, New Century Mortgage denied the mortgage application on March 9, 2004. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
3. In Exhibit 3, Commonwealth Land Title Insurance Company (Non-Party) reported on March 29, 2004 that the title was clear for closing. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
4. In Exhibit 4, Consumer Creditor and a Party In Interest was issued a mortgage. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
In accordance to FRCP 26(a)(1)(A), you must voluntarily disclose additional names, addresses and telephone numbers of each individual & non-parties likely to have discoverable information. The disclosure must also clearly indicate “The subjects of the information” of each these individuals knows, their title, company affiliation, copy of their job description and to whom they report at their respective companies.
4. FULL DISCOVERIES RIGHTS GRANTED By Judge Kevin J. Carey on August 20, 2008, Extracted from August 20, 2008 Transcript, page 69
“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --
THE COURT: Yeah. Well, the --
MR. AUGUSTIAN: -- let the Court know.
THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?
MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record.
Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.
5. NON-PARTIES ORDINARY WITNESSES
Please review the certificate of service for the complete lists of non-parties ordinary witnesses and their attorneys in the above matter. Non Parties Witnesses (someone and companies) are not a party in this matter but the records they hold have some bearing on his claims and New Century Mortgage Corporation had transactions with the non-parties in relation to Consumer Creditor’s mortgage and business loan.
Rule 34 of the Federal Rules of Civil Procedure, which provides that “any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the request or’s behalf, to inspect and copy, any designated docu ments (including writings, drawings, graphs, charts, photographs, phono records, and other data compila tions from which information can be obtained, trans lated, if necessary, by the respondent through detec tion devices into reasonably usable form) ...” [Emphasis supplied]. Rule 1001(1) of the Federal Rules of Evidence provides: “Writings” and “recordings” consist of letters, words or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation [Emphasis supplied]. Therefore, Non-Parties Witnesses are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.
6. NOTICE TO REQUEST ‘RAW FACTS & REAL EVIDENCE’ from All Counsels of Non-Parties & Non-Parties Witnesses
Now the time has come, in view of the financial crisis, for the opposing Counsels to move behind the legal technicalities and abide by their oath for due diligences…
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God”
… because the $700 billion bailout to Financial Institutions on Wall Street by our Political Leaders and Public Officials resulted out from poor mortgage underwriting practices encouraged by the banks involved in this matter.
Reflectively, Consumer Creditor stands before the opposing Counsels with a sense of sadness for the ongoing foreclosure crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
The timing of these economical, financial and operative facts mentioned above are intertwined with Consumer Creditor’s matter and are always considered fair game for discoveries. So too are the legal theories and defenses of the action along with all real evidence that any party has obtain or discover (Myers v. City of Highland Village, 212 F.R.D. 324 (E.D. Tex. 2003). The scope of permissible discovery under the Federal Rules of Civil Procedure as with all of its state counterparts is very broad. Rule 26(b)(1) specifically permits discovery of “any matter, not privileged, which is relevant” with respect to any “claim” or “defense.”
The subsection then takes the trouble to list certain examples, such as “books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” If there is any point or purpose at all to the discovery process, it must enable Consumer Creditor’s access to those raw facts and pieces of “hard evidence” that form the underlying basis for the subject matter. These are the one-of-a-kind materials and information that the court have always make available through discovery.
(Extract from the August 20, 2008 Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them)
Experts who are to testify and who also provide analysis, guidance, reports and opinions are witnesses nonetheless. An expert may wear the hat of a “consultant,” but his status as a testifying witness trumps the consultant status. In particular, as a testifying expert, he is certainly subject to discovery. Rule 26(a)(2)(B) mandates both the preparation and disclosure of a written signed report. According to that rule, the report:
“... shall contain a com plete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”
The Counsels should not use the Work Product Doctrine as a device for hiding facts or evidence that are discoverable. Those hoping to erect a shield for such information often mix the hard evidence with work product materials, or try to mis-characterize such evidence as work product United States v. Dentsply Int’l, 187 F.R.D. 152 (D.Del. 1999); United States v. Frederick, 182 F.3d 496 (7th Cir. Wis. 1999); Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626 (D.Kan. 1999). Common sense dictates that all parties should be entitled to know the underlying predicates and defenses of all of the other parties.
CONCLUSION
The Advisory Committee Notes for the 2006 amendments to Rule 34(b) state as follows: Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. As provided in Rule 45, If requested documents are within the control of a party upon whom a valid request is made, that party must obtain and produce those documents (Pleasant v. Pleasant, 632 A.2d 202, 97 Md.App. 711 (1993)). If you have any questions whatsoever, my contact information is below. Thank you.
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se, Consumer Creditor
3941 Persimmon Drive, #102, Fairfax, VA 22031 Tel: (617) 202-8069
Cc: Counsels for Non-Parties Witnesses & Non-Parties Witnesses
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this letter was mailed to the parties and attorneys below.

Pierre R. Augustin, Pro Se, 3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069 Cert# = Confirmation of receiving Notice to Depose
Attorneys, non-parties and parties served
Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166
Status: Delivered
Your item was delivered at 9:04 AM on October 10, 2008 in MANCHESTER, NH 03101.
Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197
Status: Delivered
Your item was delivered at 7:03 AM on October 14, 2008 in WILMINGTON, DE 19801.
Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274. Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173
Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.
Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.
Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180
Status: Delivered
Your item was delivered at 10:58 AM on October 7, 2008 in SAN DIEGO, CA 92127.
Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.
Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.
Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.
Legal Department
Small Business Administration (SBA)
SBA Loan#: LDP5329494000
SBA Loan Name: Admerk Corp. Inc.
Note date: May 17, 2002
Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.
Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
Real Time Solution, Inc.
1750 Regal Row, Ste 120
Dallas, TX 75235
Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400
Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy
President
Tedd Chambler
Commonwealth Land Title Insurance Company Inc
5600 Cox Rd
Glen Allen, VA 23060-9266
United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900
U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491
President
Thomas Jacob
Chase Home Finance
194 Wood Ave S # 2
Iselin, NJ 08830
Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423
Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845
Deutsche Bank National Trust
300 S. Grand Ave, Ste 3950
Los Angeles, CA 90071
Chairman and CEO
Timothy P. (Tim) Flynn
KPMG LLP (“KPMG”)
757 Third Ave.
New York, NY 10017
President
Deven Sharma
Standard and Poor’s
55 Water Street
New York, New York 10041
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered
Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.
Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered
Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.
Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered
Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered
Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.
Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.
CEO, Aseem Mital
Ameriquest Mortgage Company
1100 Town & Country Rd., Suite 1200
Orange, California 92868
R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.
Ameriquest Mortgage Company
John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered
Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered
Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.
DanversBank
Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered
Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered
Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.
Samuel P. Reef
Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494. Alen H. Segal
---------------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Thursday, September 25, 2008
Civil Action 10
http://rcxloan.com/Civil_Action_Motion_10.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?”
--------------------------------------
United States Bankruptcy Court - District of Massachusetts
Pierre Richard Augustin, PRO SE )
Debtor, )
)
v. ) C.A. No. 05-46957
) Chapter 7
DANVERSBANK, ET AL., )
)
DEBTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CHASE MOTION’S TO OBJECT TO THE AMENDMENT OF DEBTOR’S SCHEDULES B & C & MOTION TO AMEND SCHEDULES (11 USC 554) TO CLASSIFY CHASE Home Finance & COMMONWEALTH DEBT AS UNSECURED CREDITOR PER TILA & REGULATION Z WITH SUPPORTING AUTHORITY
1. Emancipation Redress
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. However, first and foremost, debtor meditates and relies on the divine guidance of the almighty to provide him with wisdom to dissect and to comprehend the meaning of the law of the land.
Debtor 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 himself who never had any infraction with the law, was left with the only viable option of bankruptcy and TILA rescission to protect his property rights as a defense to foreclosure without money, status and political connection in seeking the emancipation and the redress from the violation of the law by powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.
Intuitively, debtor 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, debtor’s 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 debtor’s motion to oppose Chase’s objection and motion to amend schedules rest on the principle of Emancipation and Redress which are intertwined with his property rights as "the guardian of every other right". Thus, debtor arguments are based on the following Rule of Law and others as deemed appropriate:
1) Rule 1009. Amendments of Voluntary Petitions, Lists, Schedules and Statements, (a) General right to amend. A voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed. A debtor may amend schedules even after a discharge is granted so long as the case is not yet closed. (In re Michael, 163 F.3d 526, 529 (9th Cir. 1998)).
2) Rule 4003 (c) - Burden of Proof – Because a claimed exemption is presumptively valid, an objecting party must prove the exemption is not proper.
3) Rule 6009 provides Debtor the right to prosecute and defend cases without the need for bankruptcy court approval.
4) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."
5) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”
6) 7th Amendment, “…The right of trial by jury shall be preserved.”
7) 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.”
8) 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
9) 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."
10) Pro Se Litigants, “Courts are particularly cautious while inspecting pleading prepared by Debtors 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.
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2. Debtor’s property was exempted according to 11 U.S.C. §541(1), 11 U.S.C. §522(b)
The facts and circumstances are that Debtor had listed his house as exempt in the bankruptcy filing according to 11 U.S.C. §522(b). Debtor’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, debtor 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 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. Once the property is abandoned, title reverts to the debtor.
Conclusion - From the analysis, debtor 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, Chase’s motion to object should be denied.
3. Debtor’s has standing . . .
The facts and circumstances to be addressed in this section will demonstrate standing under Article III of the U.S. Constitution based on the following three proven elements: (1) Debtor did suffer an injury of fact since (a) Allied fraudulently manipulated the facts on the mortgage application by (b) approving the mortgage on Debtor’s wife name despite her holding a temporary, seasonal and on call part-time employment that resulted in the stripping of Debtor’s equity, (2) the causal connection of Allied fraudulent mortgage resulted in the civil conspiracy of amongst Allied, New Century now Chase Home Finance via assignment, Attorney Samuel Reef and Commonwealth in benefiting from the refinance transactions while the Debtor’s debt liability surpassed his asset that contributed to Debtor’s financial dilemma.
The issue is covered 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 on behalf of the estate before any tribunal (emphasis added). It is based on the principle of equitable tolling which is a doctrine that allows Debtor to sue after the statutory time limit has expired if they have been prevented from suing due to inequitable circumstances since Debtor lacks years of legal experience to fully grasp legal issues and set overall legal litigation strategies.
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 Debtor 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. Debtor 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’. Also, Debtor cannot find any ‘specific negative averment’ made by Chase when raising the objection of standing as stated 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 Debtor’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)). (see docket # 94). The rule 6009 as stated above does not requires Debtor to have court approval necessarily to bring what Debtor consider as a natural right. If motion to object is granted, Chase will ultimately retaliate against Debtor’s exempted property rights since Debtor equal protection under the law would be practically nonexistent, the rule of law would be made a mockery and that justice will not be served.
Conclusion - From the analysis, Debtor comes to the Conclusion that in the absence of denying Chase’s motion to object, Debtor reaches the conclusion that his constitutional rights and rule 6009 of FRBP would be violated. Hence, Chase motion to object should be denied.
4. Chase’s time to object had run out (See Docket # 94) and/or Res Judicata
The facts and circumstances are that an untimely filed objection such as Chase’s must be dismissed even if the Trustee (or creditors for that matter) serves an objection upon the debtor, and even if the debtor initially conceals the asset (which is not the situation of debtor in this case). (In re Boyd, 43 C.B.C.2d 875, 243 B.R. 756 (N.D. Cal. 2000)).
Chase objection is untimely due to the fact that debtor had listed his property as exempt from the estate and neither the trustee nor any of the creditors had objected during the 30 days time period, thus, the property no longer belongs to the estate and the debtor may use it as his own as described below (#1,#2,#3)(Gamble v. Brown (In re Gamble) 168 F.3d 442 (11th Cir. 1999)):
#1) On July 3, 2006, debtor filed a motion to amend schedule B & C which was allowed with “No Objection” by the bankruptcy court (See Docket # 94). Debtor cited his civil suit, case#: 06-10368, as an asset in Schedule B and exempted it in Schedule C. In page 2 (See Exhibit 1) of Debtor’s civil complaint, he stated that TILA was in of the Jurisdiction of all the claims against the creditors or defendants in that civil action. At #6 of page 14 (See Exhibit 2) of civil complaint, Debtor explicitly stated that the New Century Mortgage Note which is now assigned to Chase is in violation of TILA and Regulation Z claims. In page 17 of the civil complaint, Debtor did mention rescission and statutory damages (See Exhibit 3). In retrospect, Debtor states that there was absolutely no creditors objection to the motion to amend schedules and the motion was allowed by the bankruptcy court uncontested. Also, no creditors ever filed an appeal within the 10 days limit or beyond. Hence, the order entered by Judge Rosenthal (See docket #94) on July 19, 2006 was deemed final and unappealable.
Analysis of the above facts – Chase or any other creditors should not be allowed to relitigate claims which has been the subject of a previous final order and the Federal res judicata rule should apply. (Possehl v. Ossino, 28 Mass. App. Ct. 918 (1989), (FDIC v. Shearson-American Express Inc., 996 F.2d 493 (1st Cir. 1993)). The doctrine of res judicata clearly prohibit Chase from relief to a final judgment that could have been objected by Chase in July 3, 2006. (See, In re McIntyre, 328 B.R. 356 (Bankr. D. Mass. 2005). Res Judicata are applicable based on 3 factors: 1) a final judgment on the merits of an earlier suit, 2) sufficient identicality between the causes of action in the earlier action and 3) sufficient identicality between the parties, (In re Iannochino, 242 F.3d 36 (1st Cir. 2001)). Hence, 1) Existence of Final Judgment: Final judgment was issued on July 19, 2006 by Judge Rosenthal which was not appealed timely per Bankruptcy rule 8002 that resulted as being final and unappealable, 2) Identicality of Issues: Rescission and Recoupment claims are an integral part of TILA and Regulation Z. Debtor simply reiterates the same fact cited on July 3, 2006 in its motion to amend schedules on September 21, 2006 which are identical to his civil pleading and added new claims for housing issues and other related matter, 3) Identicality of Parties: Chase, Commonwealth and Debtor are parties in Debtor’s chapter 7 bankruptcy.
#2) Debtor stated the following in the 3rd Paragraph of page 2 of that Motion to amend schedules of July 3, 2006 as follows: “the paramount reason for Debtor’s amendment of schedules is in good faith based on a discovery while conducting legal research on Sunday, July 2, 2006 at around 6 p.m. Thus, debtor’s amendment is analogous to the Equitable tolling which is a principle of tort law stating that a statute of limitations shall not bar a claim in cases where the Debtor, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. Likewise, despite debtor’s due diligence, Debtor was not aware of the fact that he had to amend his schedules to include a claim based on his action at the Massachusetts Federal Court for violations of debtor’s constitutional and federal rights in relation to his property”.
#3) Debtor stated on the 2nd paragraph of page 4 of the motion filed on July 3, 2006 as follows: “Debtor would like to amend Schedule B and C to include his claim at the U.S. District Court of Massachusetts that was authorized technically on April 3, 2006 after the Federal District court has screened the complaint in accordance to 28 USC § 1915 to determine if debtor’s action lacks an arguable basis either in law or in a fact, Neitzke v. Willliams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which relief may be granted. Thus, debtor assumed that he had met the subject matter jurisdiction since his filing was not dismissed and he received the summons from the Federal District Court” that were served on the defendants.
Why is Chase’s objection must be dismissed?
The filing of Bankruptcy tolls or extends the rescission time as Debtor had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Also, the principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Debtor could not have reasonably discovered the concealed fact of TILA & Regulation Z violations until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center whereby Debtor timely filed the schedules to reflect his better understanding of the TILA Act and Regulation Z violations.
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Effect of TILA Rescission on Security Interest
TIL rescission does not only cancel a security interest in Debtor’s property but it also cancels any liability for the Debtor to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth must refund to Debtor all finance charges, fees & monthly statement already paid. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Since the TILA strict liability and 20 days strict rule for DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth to fulfill their responsibilities, DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth are in violation of TILA/Regulation Z and have NO STANDING to object to debtor’s rescission right. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth are obligated to return all the monies received from Debtor including all past monthly payment made by Debtor since May 2002, (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The issue is covered by a Rule of law under Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law. It is also covered by section 522 (l) on ‘Timely Objection’; which is analogous to Chase & Commonwealth position whereas, if the chapter 7 Trustee’s (creditors) failure to object to exemption within the time provided in Rule 4003, it precludes Trustee (or creditors) from later attacking exemptions regardless of whether debtor has a colorable basis for claiming the exemptions. (Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed.2d 280, 26C.B.C.2d 487 (1992)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Analysis - The facts above help to prove that the Debtor alleged unequivocally that DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth have violated Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law. A debtor may amend schedules even after a discharge is granted so long as the case is not yet closed. (In re Michael, 163 F.3d 526, 529 (9th Cir. 1998)). Debtor could not have reasonably discovered the concealed fact of TILA violations until September 17, 2006 (See Exhibit 4) at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center whereby Debtor timely filed the schedules to reflect his better understanding of the TILA Act and Regulation Z to invoque the right of rescission. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
When the debtor acted promptly to amend schedules after learning of the cause of action and there was no prejudice to creditors except the economic loss that occurs whenever property is claimed as exempt, in an analogous case, the lower courts erred in denying the debtor the right to amend. (Kaelin v. Bassett (In re Kaelin), 308 F.3d 885 (8th Cir. 2002)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Conclusion - From the analysis, Debtor comes to the Conclusion that the rule of law does apply to the fact. Absent a showing of bad faith, the court may not deny leave to amend a schedule. Bad faith does not exist if there is no evidence to hide the asset. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Debtor simply sought bankruptcy and TILA protection to protect his property rights as part of his ongoing effort to conduct legal research. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection. Hence, Chase motion to object to amendment of schedule should be denied.
5. Debtor’s Notice of Rescission has reduced Ameriquest, Chase & Commonwealth as unsecured creditors
The facts and circumstances that Debtor filed a copy of the notice of rescission as a defense to foreclosure (see docket #100) in the bankruptcy court notifying the attorneys representing DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth as well as having certified receipt return of proof of delivery to the Chases/Lawyers including Ameriquest Mortgage are proof of notification according to the Official Staff Commentary, 226.2(a)(22)-2 as authorizing service on attorney. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Upon serving the notice of rescission, the TILA statute and Regulation Z state that by operation of the law, the security interest automatically becomes void and the debtor is relieved of any obligation to pay any finance or other charge (15 U.S.C. § 1635(b), Reg. Z §§ 226.15(d)(1), 226.23(d)(1)). (In re Moore, 117 B.R. 135 (Bankr. E.D. Pa. 1990) (security interest eliminated upon effective rescission, reducing creditor to status of unsecured creditor). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The issue is covered by a Rule of law of the Truth-in-Lending which empower Debtor to exercise his right in writing by notifying creditors of his cancellation by mail and filed at the bankruptcy court on September 21, 2006 (see docket #100) to rescind the mortgage loan transactions per (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
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This action is also based on Massachusetts TILA law, which has a statute of limitations of 4 years. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The filing of Bankruptcy tolls or extends the rescission time as Debtor had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Debtor could not have reasonably discovered the concealed fact of TILA violations in-depth and explicitly until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center and timely filed the amendment of schedules on September 21, 2006. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The equitable tolling principles are to be read into every federal statute of limitations unless Congress expressly provides to the contrary in clear and ambiguous language, (See Rotella v. Wood, 528 U.S. 549, 560-61, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)). Since TILA does not evidence a contrary Congressional intent, its statute of limitations must be read to be subject to equitable tolling, particularly since the act is to be construed liberally in favor of consumers. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
In an analogous case, the District Court reversed the Bankruptcy court holding that section 108(b) guards against the expiration of the underlying right by extending the period to exercise the right of rescission, as long as the right had not expired when the bankruptcy case has not been fully administered. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Analysis – The fact helps to prove the statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§ 226.15(d)(1), 226.23(d)(1)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary §§ 226.15(d)(1)-1, 226.23(d)(1)-1.). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
This requires canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary §§ 226.15(d)(2)-3, 226.23(d)(2)-3.). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Allowing rescission of Ameriquest refinanced loan or loan paid off is also consistent with TIL’s protective attitude toward borrowers’ rescission rights generally and the general requirement that TIL be interpreted liberally for the consumer. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Conclusion - From the analysis, Debtor comes to the Conclusion that both the statute and Regulation Z make it clear that, if the Debtor has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The statute, section 1635(b) states: “When an obligor exercises his right to cancel…, any security interest given by the obligor… becomes void upon such rescission”. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Ameriquest Mortgage and other Chases to potential liability. Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. Therefore, in arguing that the strict TILA and Regulation Z voidance of security be applied, Debtor does in any way waive its right to pursue his right to seek the enforcement of TILA & Regulation Z mandated remedies in his Federal Civil Action (06-10368). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Debtor to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Debtor all finance charges and fees paid. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
It is prematured to determine jurisdiction since Debtor has the option of enforcing the rescission right in federal district, state or bankruptcy court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees in a successful action”). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Hence, Chase motion of objection should be denied and Debtor’s motion to amend schedules to reflect both Chase and Commonwealth as an unsecured creditor as prescribed by Regulation Z should be allowed. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person October 13, 2006 to US Bankruptcy Court, District of Massachusetts and served by United States Postal Mail, postage upon counsel for the creditors and defendants mailed on October 13, 2006.
X ____________________________________ Pierre R. Augustin
-----------------------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
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1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
“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 Bankruptcy Court - District of Massachusetts
Pierre Richard Augustin, PRO SE )
Debtor, )
)
v. ) C.A. No. 05-46957
) Chapter 7
DANVERSBANK, ET AL., )
)
DEBTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO CHASE MOTION’S TO OBJECT TO THE AMENDMENT OF DEBTOR’S SCHEDULES B & C & MOTION TO AMEND SCHEDULES (11 USC 554) TO CLASSIFY CHASE Home Finance & COMMONWEALTH DEBT AS UNSECURED CREDITOR PER TILA & REGULATION Z WITH SUPPORTING AUTHORITY
1. Emancipation Redress
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. However, first and foremost, debtor meditates and relies on the divine guidance of the almighty to provide him with wisdom to dissect and to comprehend the meaning of the law of the land.
Debtor 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 himself who never had any infraction with the law, was left with the only viable option of bankruptcy and TILA rescission to protect his property rights as a defense to foreclosure without money, status and political connection in seeking the emancipation and the redress from the violation of the law by powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.
Intuitively, debtor 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, debtor’s 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 debtor’s motion to oppose Chase’s objection and motion to amend schedules rest on the principle of Emancipation and Redress which are intertwined with his property rights as "the guardian of every other right". Thus, debtor arguments are based on the following Rule of Law and others as deemed appropriate:
1) Rule 1009. Amendments of Voluntary Petitions, Lists, Schedules and Statements, (a) General right to amend. A voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed. A debtor may amend schedules even after a discharge is granted so long as the case is not yet closed. (In re Michael, 163 F.3d 526, 529 (9th Cir. 1998)).
2) Rule 4003 (c) - Burden of Proof – Because a claimed exemption is presumptively valid, an objecting party must prove the exemption is not proper.
3) Rule 6009 provides Debtor the right to prosecute and defend cases without the need for bankruptcy court approval.
4) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."
5) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”
6) 7th Amendment, “…The right of trial by jury shall be preserved.”
7) 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.”
8) 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
9) 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."
10) Pro Se Litigants, “Courts are particularly cautious while inspecting pleading prepared by Debtors 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.
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2. Debtor’s property was exempted according to 11 U.S.C. §541(1), 11 U.S.C. §522(b)
The facts and circumstances are that Debtor had listed his house as exempt in the bankruptcy filing according to 11 U.S.C. §522(b). Debtor’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, debtor 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 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. Once the property is abandoned, title reverts to the debtor.
Conclusion - From the analysis, debtor 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, Chase’s motion to object should be denied.
3. Debtor’s has standing . . .
The facts and circumstances to be addressed in this section will demonstrate standing under Article III of the U.S. Constitution based on the following three proven elements: (1) Debtor did suffer an injury of fact since (a) Allied fraudulently manipulated the facts on the mortgage application by (b) approving the mortgage on Debtor’s wife name despite her holding a temporary, seasonal and on call part-time employment that resulted in the stripping of Debtor’s equity, (2) the causal connection of Allied fraudulent mortgage resulted in the civil conspiracy of amongst Allied, New Century now Chase Home Finance via assignment, Attorney Samuel Reef and Commonwealth in benefiting from the refinance transactions while the Debtor’s debt liability surpassed his asset that contributed to Debtor’s financial dilemma.
The issue is covered 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 on behalf of the estate before any tribunal (emphasis added). It is based on the principle of equitable tolling which is a doctrine that allows Debtor to sue after the statutory time limit has expired if they have been prevented from suing due to inequitable circumstances since Debtor lacks years of legal experience to fully grasp legal issues and set overall legal litigation strategies.
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 Debtor 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. Debtor 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’. Also, Debtor cannot find any ‘specific negative averment’ made by Chase when raising the objection of standing as stated 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 Debtor’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)). (see docket # 94). The rule 6009 as stated above does not requires Debtor to have court approval necessarily to bring what Debtor consider as a natural right. If motion to object is granted, Chase will ultimately retaliate against Debtor’s exempted property rights since Debtor equal protection under the law would be practically nonexistent, the rule of law would be made a mockery and that justice will not be served.
Conclusion - From the analysis, Debtor comes to the Conclusion that in the absence of denying Chase’s motion to object, Debtor reaches the conclusion that his constitutional rights and rule 6009 of FRBP would be violated. Hence, Chase motion to object should be denied.
4. Chase’s time to object had run out (See Docket # 94) and/or Res Judicata
The facts and circumstances are that an untimely filed objection such as Chase’s must be dismissed even if the Trustee (or creditors for that matter) serves an objection upon the debtor, and even if the debtor initially conceals the asset (which is not the situation of debtor in this case). (In re Boyd, 43 C.B.C.2d 875, 243 B.R. 756 (N.D. Cal. 2000)).
Chase objection is untimely due to the fact that debtor had listed his property as exempt from the estate and neither the trustee nor any of the creditors had objected during the 30 days time period, thus, the property no longer belongs to the estate and the debtor may use it as his own as described below (#1,#2,#3)(Gamble v. Brown (In re Gamble) 168 F.3d 442 (11th Cir. 1999)):
#1) On July 3, 2006, debtor filed a motion to amend schedule B & C which was allowed with “No Objection” by the bankruptcy court (See Docket # 94). Debtor cited his civil suit, case#: 06-10368, as an asset in Schedule B and exempted it in Schedule C. In page 2 (See Exhibit 1) of Debtor’s civil complaint, he stated that TILA was in of the Jurisdiction of all the claims against the creditors or defendants in that civil action. At #6 of page 14 (See Exhibit 2) of civil complaint, Debtor explicitly stated that the New Century Mortgage Note which is now assigned to Chase is in violation of TILA and Regulation Z claims. In page 17 of the civil complaint, Debtor did mention rescission and statutory damages (See Exhibit 3). In retrospect, Debtor states that there was absolutely no creditors objection to the motion to amend schedules and the motion was allowed by the bankruptcy court uncontested. Also, no creditors ever filed an appeal within the 10 days limit or beyond. Hence, the order entered by Judge Rosenthal (See docket #94) on July 19, 2006 was deemed final and unappealable.
Analysis of the above facts – Chase or any other creditors should not be allowed to relitigate claims which has been the subject of a previous final order and the Federal res judicata rule should apply. (Possehl v. Ossino, 28 Mass. App. Ct. 918 (1989), (FDIC v. Shearson-American Express Inc., 996 F.2d 493 (1st Cir. 1993)). The doctrine of res judicata clearly prohibit Chase from relief to a final judgment that could have been objected by Chase in July 3, 2006. (See, In re McIntyre, 328 B.R. 356 (Bankr. D. Mass. 2005). Res Judicata are applicable based on 3 factors: 1) a final judgment on the merits of an earlier suit, 2) sufficient identicality between the causes of action in the earlier action and 3) sufficient identicality between the parties, (In re Iannochino, 242 F.3d 36 (1st Cir. 2001)). Hence, 1) Existence of Final Judgment: Final judgment was issued on July 19, 2006 by Judge Rosenthal which was not appealed timely per Bankruptcy rule 8002 that resulted as being final and unappealable, 2) Identicality of Issues: Rescission and Recoupment claims are an integral part of TILA and Regulation Z. Debtor simply reiterates the same fact cited on July 3, 2006 in its motion to amend schedules on September 21, 2006 which are identical to his civil pleading and added new claims for housing issues and other related matter, 3) Identicality of Parties: Chase, Commonwealth and Debtor are parties in Debtor’s chapter 7 bankruptcy.
#2) Debtor stated the following in the 3rd Paragraph of page 2 of that Motion to amend schedules of July 3, 2006 as follows: “the paramount reason for Debtor’s amendment of schedules is in good faith based on a discovery while conducting legal research on Sunday, July 2, 2006 at around 6 p.m. Thus, debtor’s amendment is analogous to the Equitable tolling which is a principle of tort law stating that a statute of limitations shall not bar a claim in cases where the Debtor, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. Likewise, despite debtor’s due diligence, Debtor was not aware of the fact that he had to amend his schedules to include a claim based on his action at the Massachusetts Federal Court for violations of debtor’s constitutional and federal rights in relation to his property”.
#3) Debtor stated on the 2nd paragraph of page 4 of the motion filed on July 3, 2006 as follows: “Debtor would like to amend Schedule B and C to include his claim at the U.S. District Court of Massachusetts that was authorized technically on April 3, 2006 after the Federal District court has screened the complaint in accordance to 28 USC § 1915 to determine if debtor’s action lacks an arguable basis either in law or in a fact, Neitzke v. Willliams, 490 U.S. 319, 325 (1989), or if the action fails to state a claim on which relief may be granted. Thus, debtor assumed that he had met the subject matter jurisdiction since his filing was not dismissed and he received the summons from the Federal District Court” that were served on the defendants.
Why is Chase’s objection must be dismissed?
The filing of Bankruptcy tolls or extends the rescission time as Debtor had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Also, the principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Debtor could not have reasonably discovered the concealed fact of TILA & Regulation Z violations until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center whereby Debtor timely filed the schedules to reflect his better understanding of the TILA Act and Regulation Z violations.
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Effect of TILA Rescission on Security Interest
TIL rescission does not only cancel a security interest in Debtor’s property but it also cancels any liability for the Debtor to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth must refund to Debtor all finance charges, fees & monthly statement already paid. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Since the TILA strict liability and 20 days strict rule for DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth to fulfill their responsibilities, DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth are in violation of TILA/Regulation Z and have NO STANDING to object to debtor’s rescission right. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth are obligated to return all the monies received from Debtor including all past monthly payment made by Debtor since May 2002, (Pulphus v. Sullivan, 2003 WL 1964333, at *17 (N.D. Apr. 28, 2003) (citing lender’s duty to return consumer’s money as reason for allowing rescission of refinanced loan); McIntosh v. Irwing Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003) (citing borrower’s right to be reimbursed for prepayment penalty as reason for allowing rescission of paid-off loan). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The issue is covered by a Rule of law under Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law. It is also covered by section 522 (l) on ‘Timely Objection’; which is analogous to Chase & Commonwealth position whereas, if the chapter 7 Trustee’s (creditors) failure to object to exemption within the time provided in Rule 4003, it precludes Trustee (or creditors) from later attacking exemptions regardless of whether debtor has a colorable basis for claiming the exemptions. (Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed.2d 280, 26C.B.C.2d 487 (1992)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Analysis - The facts above help to prove that the Debtor alleged unequivocally that DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth have violated Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law. A debtor may amend schedules even after a discharge is granted so long as the case is not yet closed. (In re Michael, 163 F.3d 526, 529 (9th Cir. 1998)). Debtor could not have reasonably discovered the concealed fact of TILA violations until September 17, 2006 (See Exhibit 4) at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center whereby Debtor timely filed the schedules to reflect his better understanding of the TILA Act and Regulation Z to invoque the right of rescission. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
When the debtor acted promptly to amend schedules after learning of the cause of action and there was no prejudice to creditors except the economic loss that occurs whenever property is claimed as exempt, in an analogous case, the lower courts erred in denying the debtor the right to amend. (Kaelin v. Bassett (In re Kaelin), 308 F.3d 885 (8th Cir. 2002)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Conclusion - From the analysis, Debtor comes to the Conclusion that the rule of law does apply to the fact. Absent a showing of bad faith, the court may not deny leave to amend a schedule. Bad faith does not exist if there is no evidence to hide the asset. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Debtor simply sought bankruptcy and TILA protection to protect his property rights as part of his ongoing effort to conduct legal research. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection. Hence, Chase motion to object to amendment of schedule should be denied.
5. Debtor’s Notice of Rescission has reduced Ameriquest, Chase & Commonwealth as unsecured creditors
The facts and circumstances that Debtor filed a copy of the notice of rescission as a defense to foreclosure (see docket #100) in the bankruptcy court notifying the attorneys representing DanversBank, Ameriquest Mortgage, New Century Mortgage, Chase & Commowealth as well as having certified receipt return of proof of delivery to the Chases/Lawyers including Ameriquest Mortgage are proof of notification according to the Official Staff Commentary, 226.2(a)(22)-2 as authorizing service on attorney. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Upon serving the notice of rescission, the TILA statute and Regulation Z state that by operation of the law, the security interest automatically becomes void and the debtor is relieved of any obligation to pay any finance or other charge (15 U.S.C. § 1635(b), Reg. Z §§ 226.15(d)(1), 226.23(d)(1)). (In re Moore, 117 B.R. 135 (Bankr. E.D. Pa. 1990) (security interest eliminated upon effective rescission, reducing creditor to status of unsecured creditor). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The issue is covered by a Rule of law of the Truth-in-Lending which empower Debtor to exercise his right in writing by notifying creditors of his cancellation by mail and filed at the bankruptcy court on September 21, 2006 (see docket #100) to rescind the mortgage loan transactions per (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
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This action is also based on Massachusetts TILA law, which has a statute of limitations of 4 years. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The filing of Bankruptcy tolls or extends the rescission time as Debtor had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Debtor could not have reasonably discovered the concealed fact of TILA violations in-depth and explicitly until September 17, 2006 at about 5 a.m. in reading the Truth-in-Lending book by the National Consumer Law Center and timely filed the amendment of schedules on September 21, 2006. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The equitable tolling principles are to be read into every federal statute of limitations unless Congress expressly provides to the contrary in clear and ambiguous language, (See Rotella v. Wood, 528 U.S. 549, 560-61, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)). Since TILA does not evidence a contrary Congressional intent, its statute of limitations must be read to be subject to equitable tolling, particularly since the act is to be construed liberally in favor of consumers. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
In an analogous case, the District Court reversed the Bankruptcy court holding that section 108(b) guards against the expiration of the underlying right by extending the period to exercise the right of rescission, as long as the right had not expired when the bankruptcy case has not been fully administered. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Analysis – The fact helps to prove the statute and regulation specify that the security interest, promissory note or lien arising by operation of law on the property becomes automatically void. (15 U.S.C. § 1635(b); Reg. Z §§ 226.15(d)(1), 226.23(d)(1)). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
As noted by the Official Staff Commentary, the creditor’s interest in the property is “automatically negated regardless of its status and whether or not it was recorded or perfected.” (Official Staff Commentary §§ 226.15(d)(1)-1, 226.23(d)(1)-1.). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
This requires canceling documents creating the security interest and filing release or termination statements in the public record. (Official Staff Commentary §§ 226.15(d)(2)-3, 226.23(d)(2)-3.). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Allowing rescission of Ameriquest refinanced loan or loan paid off is also consistent with TIL’s protective attitude toward borrowers’ rescission rights generally and the general requirement that TIL be interpreted liberally for the consumer. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Conclusion - From the analysis, Debtor comes to the Conclusion that both the statute and Regulation Z make it clear that, if the Debtor has the extended right and chooses to exercise it, the security interest and obligation to pay charges are automatically voided. (Cf. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704-05 (9th Cir. 1986) (courts do not have equitable discretion to alter substantive provisions of TILA, so cases on equitable modification are irrelevant). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The statute, section 1635(b) states: “When an obligor exercises his right to cancel…, any security interest given by the obligor… becomes void upon such rescission”. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Also, it is clear from the statutory language that the court’s modification authority extends only to the procedures specified by section 1625(b). The voiding of the security interest is not a procedure, in the sense of a step to be followed or an action to be taken. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
The statute makes no distinction between the right to rescind in three day or extended in three years for federal and four years under Mass. TILA, as neither cases nor statute give courts equitable discretion to alter TILA’s substantive provisions. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Ameriquest Mortgage and other Chases to potential liability. Non-compliance is a violation of the act which gives rise to a claim for actual and statutory damages under 15 USC 1640. Therefore, in arguing that the strict TILA and Regulation Z voidance of security be applied, Debtor does in any way waive its right to pursue his right to seek the enforcement of TILA & Regulation Z mandated remedies in his Federal Civil Action (06-10368). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Debtor to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Debtor all finance charges and fees paid. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
It is prematured to determine jurisdiction since Debtor has the option of enforcing the rescission right in federal district, state or bankruptcy court (See S. Rep. No. 368, 96th Cong. 2 Sess. 28 at 32 reprinted in 1980 U.S.C.A.N. 236, 268 (“The bill also makes explicit that a consumer may institute suit under section 130 [15 U.S.C., 1640] to enforce the right of rescission and recover costs and attorney fees in a successful action”). Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
Hence, Chase motion of objection should be denied and Debtor’s motion to amend schedules to reflect both Chase and Commonwealth as an unsecured creditor as prescribed by Regulation Z should be allowed. Thus, since the security interest is automatically voided per TILA and Regulation Z upon rescission, the secured mortgage note is no longer secured and must be classified as unsecured in Debtor’s unsecured schedules of debts as well as be discharged as mandated under Debtor’s chapter 7 bankruptcy protection.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person October 13, 2006 to US Bankruptcy Court, District of Massachusetts and served by United States Postal Mail, postage upon counsel for the creditors and defendants mailed on October 13, 2006.
X ____________________________________ Pierre R. Augustin
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