Civil Action 2

http://rcxloan.com/Civil_Action_Motion_2.htm

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

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

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

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

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

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

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

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

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S (New Century Mortgage) MOTION TO DISMISS WITH SUPPORTING AUTHORITY

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

1. Emancipation Redress

"And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robberies or enemies, any and every method of protecting ourselves is morally right.”

Quoted on page 17 in Stephen P. Halbrook -- That Every Man Be Armed: The Evolution of a
Constitutional Right, published in 1984 by The University of New Mexico Press and The Independent Institute.

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

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

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

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

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

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

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

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

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

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

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

2. F.R.Civ.P. 12(b)(1) – The Court has power to adjudicate Plaintiff’s Claims before it
The facts and circumstances that brought the plaintiff under the Federal Court jurisdiction are that this complaint involve violations of Federal and State Law and the plaintiff and defendants are citizens of different states. As a whole, the complaint is based on actual count of facts and claims based on Federal Law since plaintiff has pursued and exhausted all administrative remedies prior the filing of this action in Court.

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

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

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

3. F.R.Civ.P. 12(b)(6) – Plaintiff’s did state a Claim upon which relief can be granted
The facts and circumstances that brought the plaintiff to court against “New Century Mortgage” are cited on (¶ 28 & 29) of Verified Complaint. By invoking similar reasons set forth by LandAmerica Commonwealth or F.R.Civ.P. 12(b)(6), defendant is suggesting that plaintiff’s factual allegations must be taken as true for the purpose of the court ruling on the motion. Since defendant’s motion does not replace the trial, real and factual issues based on circumstantial evidence and prior conclusion should be drawn favorably for the plaintiff. Since there are matters outside the complaint allegations, then this motion could be viewed as a “Summary Judgment”.

The issue is covered by a Rule of law of F.R.Civ.P. 12(b)(6) which states, if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Analysis - The fact helps to prove that when considering defendant’s motion, the court must construe the factual allegations in the light most favorable to plaintiff with all doubts resolved in the pleaders favor and the allegations taken as true. The purpose of (¶, 28 & 29) of Plaintiff’s verified complaint were to give defendant fair notice of plaintiff’s claimed and the rule of law for basing the argument. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). With regard to Fed. Rule Civ. P 12(b)(6), court should dismiss a suit under FRCP 12(b)(6) only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that entitled him to relief. Conley v. Gibson, 355 U.S. 41, 45-48 (1957).

The purpose of a motion to dismiss under FRCP 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. It is not a procedure for resolving a contest about the facts or the merits of the case. 5A Wright & Miller, Federal Practice and Procedure § 1356 (West 1990). A Rule 12(b)(6) motion allows a defendant to challenge the legal sufficiency of a complaint without subjecting itself to discovery. Rutman Wine Co. v. Ernest and Julio Gallo Winery, 829 F.2d 729 (9th Cir. 1987). In reviewing the sufficiency of the complaint, the issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims asserted. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Such a motion is viewed with disfavor and is rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986), cert. denied, 485 U.S. 940 (1988). Only where the pleading under attack fails to meet the liberal requirement of Rule 8(a) for a short and plain statement of the claim showing that the pleader is entitled to relief would the pleading be subject to dismissal under Rule 12(b)(6). 5A Wright & Miller, Federal Practice and Procedure § 1356 (West 1990). The rule also state that a dismissal under failure to state a claim upon which relief can be granted would have to be "treated as one for summary judgment", and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56" as stipulated in Fed Rule Civ. P, Rule 12(b). Then, in the absence of given plaintiff the opportunity to present sworn affidavits as well as the opportunity to conduct some kind of discovery against defendants and to request admissions and conduct interrogatories, plaintiff reaches the conclusion that justice will not be served based on the notion that the Fourteenth Amendment to the Constitution requires that plaintiff be allowed his Due Process rights to prove these claims by a preponderance of the evidence. Plaintiff has the legal right, and a moral duty, according to the constitution and the 7th amendment to present his evidence to a jury and let them decide the outcome based on the finding of fact and the principle of equality and fundamental fairness.

Conclusion - From the analysis, plaintiff comes to the Conclusion that based on the rule of law, he has satisfied the burden of stating a claim against defendant (“Allied”). Plaintiff’s complaint need not alleged any specific wrong per se; rather it must merely notify the defendant of the nature of the claim and state the ‘Relief Sought’. Plaintiff also alleges that all defendants are liable for damages by virtue of their part in the civil conspiracy, fraud and trampling on the rights of plaintiff’s by violating Federal and State Law. Hence, defendant’s motion to dismiss should be denied.

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

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

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

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

5. Plaintiff has stated a Cause of Action against Defendant’s Last Sentence of 3rd Paragraph on page 2
The facts and circumstances that brought the plaintiff to court against defendant (New Century Mortgage) is the civil conspiracy ('The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'' (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.)). New Century Mortgage violated the Massachusetts Laws on Predatory Lending and Acts, benefited and participated in the fraud and other claims as stated by plaintiff. Defendant’s (New Century Mortgage) fraud and other circumstantial evidences to be presented in court caused damages which inflicted emotional harm to plaintiff, caused separation from wife and children and resulted in loss of consortium as well.(emphasis added)

The issue is covered by a Rule of law under the US CODE: Title 42, 1983; Civil action for deprivation of rights, U.S. Constitution’s 1st Amendment, 5th Amendment, 7th Amendment, 10th Amendment and the 14th Amendment, HOPEA(c)(1)(h).

Analysis - The fact helps to prove that the plaintiff alleged unequivocally that the defendant deprived him of his rights and privileges under the constitution and Laws of the United States. The rule of the Home Ownership and Equity Protection Act requires that plaintiff should not have paid any prepayment penalty and shall not engage in a pattern or practice of extending credit to plaintiff’s wife without regard to the wife repayment ability, including the plaintiff’s current and expected income, current obligations and employment.

New Century Mortgage fraudulently added plaintiff’s wife to the New Century Mortgage loan by providing false/fraudulent information on a federal mortgage application while she only ‘hold an on call & temporary part-time contracted’ position and benefited from the high fees by charging a higher interest rate to plaintiff and his wife. Based on a court decision, Culpepper v. Irwin Mortgage Corp.,, 253 F.3d 1324 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit upheld certification of a class in a case alleging that yield spread premiums violated Section 8 of RESPA where the defendant lender, pursuant to a prior understanding with mortgage brokers, paid yield spread premiums to the brokers based solely on the brokers’ delivery of above par interest rate loans.

Civil Conspiracy and Fraud – To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy as described below in falsifying documents to stuck plaintiff with a high-cost mortgage. (Phelps Dodge v. United Steel Workers of America, 865 F.2d, 1541 (9th Cir. AZ, 1989), cert. denied 493 U.S. 809)

Defendant commonwealth made (at the preliminary/commitment of the title report on 3/29/2004) and Allied & New Century Mortgage added plaintiff’s wife on the mortgage by making:
1) a false representation,
2) the person who made that false statement made it knowingly to conceal it
3) the receiver of that statement meaning all parties involved in the refinancing of his property believed that the title was indeed ‘clear’ especially plaintiff since he was later affected by the civil conspiracy to defrauded him, and the New Century Mortgage’s underwriter and lawyer, Samuel P. Reef covered up as well by withholding plaintiff’s wife true temporary and on call part-time work status.
4) based on that false and fraudulent statement, the underwriter or whomever at New Century Mortgage either was part of the civil conspiracy or acted upon it which stripped away all the equity in plaintiff’s property and caused/resulted in predatory lending damages by over financing plaintiff’s property and all the parties benefited financially from the fraud which left plaintiff financially at risk with no power to borrow money in the near future,
5) plaintiff trusted and believed that all the parties involved in the refinancing of his property had a fiduciary responsibility not to deceive him by assuring that the transaction would not be to plaintiff’s detrimental as it turned out to be (In re Rockefeller Ctr. Props., Inc. Secs. Litig., 311 F. 3d 198, 216 (3d Cir. 2002)).

Therefore, if each participant cited above may not know the exact details of the conspiracy to still be legally liable, then by implication it is even much less required that the victim (plaintiff) know the exact details of a conspiracy which is intentionally, continuously and fraudulently concealed from him. Instead, it will almost always be necessary to infer such agreements from circumstantial evidence of the existence of joint action. (Magna v. Commonwealth of N. Mariana Islands, 107 F.3d, 1447 (9th Cir. 1997)

Defendant also violated of Massachusetts Law, Chapter 183C, Section 3 which requires that a creditor may not make a high-cost home mortgage loan (to plaintiff) without first receiving certification from a counselor with a third-party nonprofit organization approved by the United States Department of Housing and Urban Development, a housing financing agency of this state, or the regulatory agency which has jurisdiction over the creditor, that the borrower has received counseling on the advisability of the loan transaction. A high cost home mortgage loan originated by a lender in violation of this section ‘shall not be enforceable’. At or before closing a high cost home mortgage loan, the lender shall obtain evidence that the borrower has completed an approved counseling program. Also, according to Massachusetts Chapter 183C, Predatory Home Loan Practices, Section 5: A high-cost home mortgage loan shall not contain any provision for prepayment fees or penalties as was the case in plaintiff’s high-cost home mortgage.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Plaintiff has sufficiently alleged facts necessary to prove each element of his causes of action. Also, according to Massachusetts Chapter, 183C, Section 15: (a) Any person who purchases or is otherwise assigned a high-cost home mortgage loan shall be subject to all affirmative claims and any defenses with respect to the loan that the borrower could assert against the original lender or broker of the loan; a borrower acting only in an individual capacity may assert claims that the borrower could assert against a lender of the home loan against any subsequent holder or assignee of the home loan as follows (borrower below is synonymous to plaintiff):
(1) [A borrower may bring an original action for a violation of this chapter in connection with the loan within 5 years of the closing of a high-cost home mortgage loan;]
(2) A borrower may, at any time during the term of a high-cost home mortgage loan, employ any defense, claim, counterclaim, including a claim for a violation of this chapter, after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the debt arising from the home loan has been accelerated or the home loan has become 60 days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan.
(c) This section shall be effective notwithstanding any other provision of law; provided, that nothing in this section shall be construed to limit the substantive rights, remedies or procedural rights available to a borrower against any lender, assignee or holder under any other law. The rights conferred on borrowers by subsections (a) and (b) are independent of each other and do not limit each other. In summary, plaintiff did state a claim against New Century Mortgage where he has alleged facts as cited above supporting his claims that New Century Mortgage violated the law and injured him. Thus, defendant motion to dismiss should be denied.

6. Plaintiff’s Defense of Property Rights in Response to Defendant’s 1st sentence of 3rd ¶ of page 1
The facts and circumstances that brought the plaintiff to court is that Defendant violates his right to be heard. Plaintiff had pursued remedies from Department of Urban and Housing Development, his Mortgage company in terms of Refinancing, Danversbank itself, the Attorney General Office, the Consumer Protection Division of Massachusetts, Senator Edward M. Kennedy, Congressman Marty Meehan, Community Team works, the Small Business Administration and so many other agencies in hope to find some kind a way to alleviate the situation. In all instances or for the most part, plaintiff was told to speak to the Bank in question, but DanversBank refused to meet with him but suggested that he filed for Bankruptcy as a default remedy. Plaintiff exhausted all avenues and was forced into bankruptcy in order to protect his property rights. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home)).

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

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

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

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

7. Plaintiff’s response to Defendant’s (New Century Mortgage) 1st sentence of ¶ 1
The facts and circumstances were that New Century Mortgage referred to Defendant’s (commonwealth) Motion which implied and illustrated clearly acts of ‘bad faith’ effort on the part of Commonwealth’s counsel to make reasonable care in finding out that the DanversBank’s default judgment was not valid and to avoid inappropriate argument before filing document that has no relevance with the intent to confuse the court by masquerading the facts to shield commonwealth from fraud and other wrongdoings. Moreover, in 2nd sentence of the 3rd Paragraph of Commonwealth Memorandum, it states that the court meaning the bankruptcy court “did not specifically act on the motions attached in defendant’s” which justified plaintiff’s point that those filed Motions had no ‘LEGAL INFLUENCES’ or ever been litigated. At that hearing (the issue was relief from the stay), the judge instructed the counsel of DanversBank “to contact Chase Mortgage to see if resolution of their second priority status can be confirmed”.

The fact and circumstances against DanversBank are based on ‘causation’ that led to DanversBank’s violation of plaintiff’s constitutional rights (4th, 5th & 14th Amendment) by acting illegally since default obtained and argued upon by the counsel of DanversBank prior the bankruptcy hearing for the seizure of plaintiff’s property was obtained without notice or with a prior hearing and no opportunity to be heard in opposition was given to plaintiff. DanversBank default judgment against plaintiff is clearly erroneous that not only would produce manifest injustice but also violated the rule of law of due process. Plaintiff’s issues or claims raised here or in any previous complaint or memorandum have never been litigated. (FUENTES v. SHEVIN, 407 US 67 (1972)) and Sniadach v. Family Finance Corp, 1969. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home).

The issue is covered by the Rule of law of the 14th Amendment in regards to DanversBank violations in obtaining an illegitimate judgments in addition to other claim stated in the plaintiff’s complaint and 1st memorandum in opposition to motion to dismiss; the issue of fraud against commonwealth. It is also based on the principle of non-core proceedings and rule 9014, contested matters. Automatic Stay, § 362. Subsection 362(d) of the Bankruptcy Code provides as follows: "On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay . . . such as by terminating, annulling, modifying, or conditioning such stay . . . ." 11 U.S.C. § 362(d). A request for relief from the stay is a "contested matter" commenced by a motion and governed by Bankruptcy Rule 9014. Fed. R. Bankr. P. 4001.

Analysis - The facts helped to prove that the issue of constitutionality and that of relief from the automatic stay are two distinctly different types of issues or claimed. The claim against DanversBank for violating plaintiff’s due process in obtaining default judgment of seizure of property or the motions cited in defendant Commonwealth EXHIBIT 3 (as cited by Allied on page 1 of its motion) of defendant’s Memorandum that could have been raised as non-core issues in bankruptcy proceedings are not neither barred by res judicata nor has plaintiff been given a full and fair opportunity to litigate the claim(s) or issue(s) in the complaint in any previous court. Bethlahmy, IRA v. Kuhlman (In re ACI-HDT Supply Co.), 205 B.R. 231 (B.A.P. 9th Cir. 1997). (in re Montgomery, 262 B.R. 772 (BAP 8th Cir. 2001)).

The hearing on a motion for relief from the automatic stay is (1) "merely a summary proceeding of limited effect," (2) "not a proceeding for determining the merits of the underlying substantive claims, defenses, or counterclaims," and (3) "merely a grant of permission from the court allowing the creditor to litigate its substantive claims elsewhere without violating the automatic stay." Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 31-35 (1st Cir. 1994); accord In re Vitreous Steel Prods. Co., 911 F.2d 1223, 1232-34 (7th Cir. 1990); Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985).

According to the Advisory committee note, relief from the automatic stay is classified as a ‘contested matter’ under rule 9014. An action to avoid lien under section 522(f) is a ‘contested matter’. In re William, 1666 B.R. 615 (Bankr. E.D. Va. 1994). The Supreme Court has also stated that authority given to the Bankruptcy courts under § 105 must be done within the limits of the bankruptcy code. (Gouveia v. Tazbir, 37 F.3d 295, 301 (7th Cir. 1994)) In regards to the hearing that led to the relief from the automatic stay, it is not the appropriate time to cite other issues. The claim validity or contract related to the claim is not litigated during the hearing (Johnson v. Righetti (In re Johnson), 756 F. 2d at 740. (“legislative history of § 362(e) makes clear that counterclaims against creditor seeking to lift stay on largely unrelated matters are not to be handled in the summary fashion required by the expedited nature of the ‘hearing’ proceeding”).

Plaintiff’s claims are NOT Res Judicata - Plaintiff’s property was exempted from the estate. A request for relief from the stay is a “A hearing on a request for relief from automatic stay is a ‘contested matter’ brought on by a motion not by adversary proceeding. (Grella v. Salem Five Cents Savings Bank, 42 F.3d26, 32 C.B.C. 2d 1303 (1st Cir. 1994). “In D-1 Enterprises, Inc. v. Commercial State Bank, 864 F.2d 36 (5th Cir. 1989), noting the two forms of adversary proceedings and contested matters, the court concluded that , as a general rule, res judicata does not apply to ‘contested matters’ which employ a ‘quick motion-and-hearing’ style.” The Seventh and Fifth Circuits have held that non-core proceedings cannot be given res judicata effect because the bankruptcy court cannot enter a final judgment. (Barnett v. Stern, 909 F.2d 973, 978-79 (7th Cir. 1990); Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 189-90 (5th Cir. 1990), see also I.A. Durbin, Inc. v Jefferson Nat'l Bank, 793 F.2d 1541, 1548 n.8 (11th Cir. 1986). IRS v. Palmer (In re Palmer), 207 F.3d 566 (9th Cir. 2000) (taxpayer who failed to respond to IRS' allegations of fraud in Tax Court was not collaterally estopped from contesting the fraud in taxpayer's subsequent bankruptcy case; in essence, debtor defaulted in Tax Court, and issue of fraud was not "actually litigated").

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law as cited and outlined above does apply to the fact. Once again, when hearing non-core cases bankruptcy courts may not enter final judgments; they may only offer proposed findings of fact and recommendations of law to federal district court judges. Because bankruptcy courts’ non-core decisions lack finality, actions involving claims that could have been raised as non-core issues in bankruptcy proceedings are not barred by res judicata. (See Sarno, 239 Ill. App.3d at 1046, 608 N.E.2d at 19,; Barnett v. Stern, 909 F.2d 973, 979 (7th Cir. 1990)). Hence, defendant motion to dismiss should be denied.

8. Plaintiff’s has standing in response to Defendant’s last sentence of 3rd Paragraph
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) Plaintiff did suffer an injury of fact since (a) Allied fraudulently manipulated the facts on the mortgage application by (b) approving the mortgage on plaintiff’s wife name despite her holding a temporary, seasonal and on call part-time employment that resulted in the stripping of plaintiff’s equity, (2) the causal connection of Allied fraudulent mortgage resulted in the civil conspiracy of amongst Allied, New Century, Attorney Samuel Reef and Commonwealth in benefiting from the refinance transactions while the plaintiff’s debt liability surpassed his asset that contributed to plaintiff’s financial dilemma, (3) Plaintiff strongly believes in the transparency of the judicial system in the United States of America to uphold the law in the search of Justice

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

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

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

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

The rule 6009 as stated above does not requires plaintiff to have court approval necessarily to bring what plaintiff consider as a natural right as described in Paragraph 1 of Emancipation Redress section E. If motion to dismiss is granted, defendant will ultimately retaliate against plaintiff’s property rights since plaintiff equal protection under the law would be practically nonexistent and that justice will not prevail. Plaintiff needs to conduct discovery to fully trace and to expose all the facts and evidence to the jury. Moreover, plaintiff will suffer an imminent injury from defendant such as the continuing violation of Due Process on his property rights although the defendant’s default judgment is invalid since there was no notice or hearing for plaintiff’s opportunity to be heard prior obtaining the default judgment.

Plaintiff strongly believe that his action is based on merit, facts and circumstances that can be proven favorably in the court of law to obtain a decision to redress his violation of his 1st , 5th, 14th Amendments rights and other relevant Federal and State law upon complaint are based.

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

Also, from the analysis, plaintiff comes to the Conclusion that the bad faith effort of Commonwealth and its counsel to make reasonable care or due diligence in finding out that the DanversBank’s default judgment was not valid and to avoid inappropriate argument before filing document that has no significance relevance with the intent to confuse the court by masquerading the facts in hope to shield commonwealth from fraud and other wrongdoings as well as the motion filed as described in defendant’s (commonwealth) neither not had any legal influence nor had they been litigated at that time or any other time in the past. (Whitehead v. Food Max of Mississipi, Inc., 332 F. 3d 796 (5th Cir. 2003)). Hence, defendant’s motion to dismiss should be denied.

9. Civil Conspiracy in the violation of Federal Law and Predatory Lending
The term Predatory Lending generally refers to abusive lending practices involving fraud, deception and unfairness. The facts and circumstances are that Allied, Commonwealth and New Century Mortgage (Chase) High-Cost Mortgage loan was intentionally structured in a manner that was deceptive and disadvantageous to plaintiff (predatory lenders often target the elderly, minorities and the disabled who have accumulated a large amount of equity in their homes) and total disregard to the plaintiff’s wife ability to repay the loan by adding her to the mortgage loan note. Allied mislead plaintiff in believing he was getting a fixed loan instead of the 2 year-arm fixed loan that guaranteed the loan to be refinanced with a short time (2 years of a 30 years loan) and thereby plaintiff would have to initiate successive refinancing that either erode the plaintiff’s equity and credit or in the worst cases, contributed to the delay of the inevitable default while increasing the plaintiff’s debt.

The issue is covered by a Rule of law of Real Estate Settlement Procedures Act (“RESPA’), 12 USC § 2601, 12 USC § 2607, Home Ownership and Equity Protection Act (“HOEPA”) or Regulation Z, 12 CFR 226, 15 USC §§ 1602(aa), 1639, Truth In Lending Act (“TILA”), 15 USC § 1601, Fair Housing Act (“FHA”) and based on a court decision, Culpepper v. Irwin Mortgage Corp.,, 253 F.3d 1324 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit upheld certification of a class in a case alleging that yield spread premiums violated Section 8 of RESPA where the defendant lender, pursuant to a prior understanding with mortgage brokers, paid yield spread premiums to the brokers based solely on the brokers’ delivery of above par interest rate loans.

Analysis - The fact helps to prove that Allied and New Century Mortgage violated the RESPA by imposing excessive charges on plaintiff upon closing of the provided high-cost mortgage loan and did not provide Good Faith Estimate within three days of application as require by RESPA. Allied, New Century Mortgage and the closing attorney Samuel P. Reef (defendant) failed to disclose explicitly that plaintiff was not required to complete the agreement even though an application has been signed; the transaction creates a mortgage on the plaintiff’s home which could result in loss of the home and any equity therein should the plaintiff fail to pay according to the loan terms; the APR and amount of the monthly payment; the APR and that the monthly payment may increased. Plaintiff was mislead in believing he was getting a fixed loan for 30 years whereas the current loan is a 2 year arm loan that will go up to 14% interest. The HOPEA act was violated since a prepayment penalty was included in plaintiff’s high-cost loan and prohibits a broker/lender from engaging in a pattern or practice of extending high-cost loan without regard to plaintiff’s wife ability to repay from sources other than the encumbered home’s equity. (12 CFR § 226.34)

Allied, New Century Mortgage, Commonwealth and Chase Home Finance involved in the practice of loan FLIPPING by refinancing plaintiff’s high-cost loan with no tangible benefit to the plaintiff by charging high origination fees on the entire new loan amount, not on just the incremental amount added to the loan principal through the refinancing and triggering prepayment penalties that were financed as part of the total loan amount that added to the plaintiff’s debt burden.

Allied, New Century Mortgage and Chase Home Finance actions can be classified as ‘Reverse Redlining’ that since as a member of minority who have insufficient access to mainstream sources of credit and lack an adequate understanding of the complexities of that financial transactions at that time, the rate on the note that plaintiff and his wife obtained do not correspond to their risk levels and was inappropriate for their needs. As used by Congress and district courts, "reverse redlining" refers to "the practice of targeting residents in certain geographic areas for credit on unfair terms." Newton v. United Companies Fin. Corp., 24 F. Supp.2d 444, 455 (E.D. Pa. 1998); accord Williams v. Gelt Fin. Corp., 237 B.R. 590, 594 (E.D. Penn. 1999) ("reverse redlining" is the practice of "targeting of persons for 'credit on unfair terms' based on their income, race, or ethnicity") (quoting S. Rep. No. 103-169, at 21 (1993)). See Hearings: Reverse Redlining, note 4, supra, at 246 ("so-called reverse redlining is among the most pernicious forms of racial and ethnic discrimination and consumer fraud.") (Statement of Sen. Alfonse M. D'Amato). Statistical evidence of targeting can be sufficient to raise a factual dispute of intentional discrimination. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-308 (1977) (when "gross statistical disparities can be shown, they alone may in a proper case constitute a prima facie proof of a pattern or practice of discrimination."); International Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977) ("In many cases the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination.").
The indirect evidence that Allied, New Century Mortgage and Chase Home Finance violated the FHA, 42 USC § 3601 and Equal Credit Opportunity ACT, 15 USC § 1691 are (1) plaintiff is a member of a protected class; 2) plaintiff did apply and qualification determination was made by the defendants; 3) the loan offered contained patently unfavorable terms such as prepayment penalties and misled representation into leading plaintiff to believe that his mortgage not was a fixed one; and 4) defendant provided other borrowers possessing similar qualifications with loans on significantly better terms (See Exhibit entitled RV (Reverse Redlining Statistics selected pages 1-119). (McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973) (Hargraves v. Capital City Mortgage Corp., 140 F. Supp.2d 7 (D.D.C. 2000).

As stated above, Allied, Commonwealth, New Century Mortgage, Chase Home Finance and Samuel P. Reef misled plaintiff into believing he had gotten a 30 years fixed loan which is a violation of TILA and the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws Ch. 140D, the lack of opportunity to read disclosures and by not following the required disclosures that must be made clearly and conspicuously, in meaningful sequence, in writing, and in a form the consumer may keep. Plaintiff was not provided credit counseling regarding the high-cost mortgage loan and did not advise plaintiff that using a loan to pay off old debts and replace them with new ones may get the plaintiff into financial hardship. Also, plaintiff ended with a high-cost mortgage loan than those for which he would otherwise qualify (Steering) and encouraged to refinance which resulted in losing equity in his home otherwise classified as (Equity stripping). That unaffordable loan with high points and fees was made based on plaintiff’s home equity without regard to the plaintiff’s ability to repay the loan obligation or known as asset based lending.

Accordingly, action may be brought in any U.S. district court and all claims and defenses that arise under any non-TILA, non-HOEPA theory against the original lender may be asserted against the assignee of the loan (New Century mortgage and Chase Home Finance).

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law defined above does apply to the fact. Also, defendants violated Massachusetts Consumer Debt law that state that the debtor (plaintiff) must receive consumer counseling. Chase particularly violated several federal laws, including the FTC Act, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act and the Real Estate Settlement Procedures Act. The FTC Act violations are based on the servicing of the loan by 1) failing to post plaintiff’s mortgage payment in a timely and proper manner and then charged plaintiff late fees or additional interest for failing to make their payments on time, 2) charged plaintiff for placing casualty insurance on their loans when insurance was already in place, 3) misrepresented the amounts plaintiff owed. Chase violated the Fair Debt Collection Practices Act by falsely represented the amount of plaintiff’s debts and communicated information to plaintiff which was known or which should have been known to be false including the failure to communicate that a debt was disputed. The violation of the Fair Credit Reporting Act by Chase are based on the furnished information about plaintiff’s payment status to consumer reporting agencies when they knew or consciously avoided knowing that the information was inaccurate and Chase failed to respond to plaintiff’s request through the Christian credit counseling in regard to payment options as well as not reporting the dispute to the consumer reporting agencies. Chase violated the Real Estate Settlement Procedure Act by not responding to plaintiff request through the help of the Christian Credit counseling agency. Also, Chase states on 2nd paragraph that it holds a first mortgage whereas New Century Mortgage which sold that mortgage loan to Chase states on their 2nd paragraph as the holder of a 2nd mortgage on plaintiff’s premises. Hence, defendant motion to dismiss should be denied.

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