Civil Action 13

http://rcxloan.com/Civil_Action_Motion_13.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.

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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 MOTION TO DISMISS WITH SUPPORTING AUTHORITY (Alan H. Segal)

CERTIFICATION OF PERSONAL CONSULTATION
[Plaintiff only find out of the defendant, Alan H. Segal, late response of more than 2 months later, beyond the 20 days timeframe, when Plaintiff visited the clerk office on November 9, 2006 to obtain a copy of the Federal Rules of Appeal Procedures (FRAP) for an upcoming Appeal on a ruling by the Bankruptcy court that the Plaintiff is preparing to file with this court.]

Plaintiff hereby certifies that on November 15, 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
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, Plaintiff 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.

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 and ‘TILA Rescission (See Exhibit - Notice of Default Letter to Lenders & Attorneys) as a defense to foreclosure 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) Courts have uniformly held that the Marshals’ failure to effect service automatically constitutes good cause under Fed. R. Civ. P. 4(m). A Plaintiff proceeding in forma pauperis is entitled to rely upon court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service of process, where such failure is through no fault of the litigant.

2) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."

3) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”

4) 7th Amendment, “…The right of trial by jury shall be preserved.”

5) 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.”

6) 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

7) 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."

8) 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. Defendant violated Local Rule 7.1(a)(2)
The facts and circumstances reveal that there were no attempt made by neither the defendant or their counsel to comply with Local Rule 7.1(a)(2) nor was there any certification accompanying their motion to dismiss.

The issue is covered by a Rule of law of Local Rule 7.1(a)(2)(Motion Practice) which states that “No motion shall be filed unless counsel certify that they have conferred and have attempted in good faith to resolve or narrow the issue.”

Analysis - The fact help to prove that the defendant or their counsel did not comply with Local Rule 7.1(a)(2).

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

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3. Plaintiff has stated a Cause of Action against Defendant
The facts and circumstances that brought the Plaintiff to court against defendants is the civil conspiracy with Global Consultants (acted as a “finder” in the transaction), Title company, Closing Attorney, Allen Segal in violation of the Massachusetts Laws on Predatory Lending and Acts and the fact that TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Plaintiff to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Plaintiff all finance charges and fees paid. Thus, Ameriquest Mortgage is obligated to return those charges to the Plaintiff (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).

The issue is covered by a Rule of law under Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law.

Analysis - The fact helps to prove that the Plaintiff alleged unequivocally that the defendant(s) has violated of Federal and Massachusetts Law on Predatory Lending, TILA, HOEPA and others law.

A. TILA & Res Judicata (Analogous to Debtor’s situation since he was not a party in any previous court or had ever litigated fully any TILA claims) – A rescission action may not be barred by prior TIL litigation which did not involve rescission (Smith v. Wells Fargo Credit Corp., 713 F. Supp. 354 (D. Ariz. 1989) (state court action involving, inter alia TIL disclosure violations did not bar a subsequent action based on rescission notice violations in conjunction with same transaction which were not alleged or litigated in prior action) (See also In re Laubach, 77 B.R. 483 (Bankr. E.D. Pa. 1987) (doctrine of merger bars raising state and federal law claims arising from a transaction on which a previous successful federal TILA action was based; merger does not bar, however, rescission-based on the same transaction)).

B. TILA Pleading – Under the Federal Rules of Civil Procedures, it may be sufficient to plead that the TILA has been violated. (Fed.R. Civ. P. 8(a)). 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.

C. Specific violations do not necessarily have to be alleged with particularity (Brown v. Mortgagestar, 194 F. Supp. 2d 473 (S.D. W. Va. 2002) (notice pleading is all that is required in TILA case); Herrara v. North & Kimball Group, Inc., 2002 WL 253019 (N.D. Ill. Feb.. 20, 2002) (notice pleading sufficient; response to motion to dismiss can supplement complaint by alleging facts re specific documents assigned); Staley v. Americorp. Credit Corp., 164 F. Supp. 2d 578 (D. Md. 2001) (Plaintiff need not specify specific statute or regulations that entitle her to relief; court will examine complaint for relief on any possible legal theory); Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000) (complaint was specific enough even though it did not identify the security interest that defendant should have disclosed). The consumer’s complaint need not plead an error exceeded the applicable tolerance, since this is an affirmative defense (Inge v. Rock Fin. Corp., 281 F.3d 613 (6th cir. 2002)).

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. Hence, defendant motion to dismiss should be denied.

4. Plaintiff’s did notify lien holders within the Federal & Mass. TILA limitation period
The facts and circumstances that Plaintiff filed a copy of the notice of rescission in the bankruptcy court notifying the attorneys representing DanversBank, Commonwealth, New Century Mortgage and Chase Home Finance as well as having certified receipt return of proof of delivery to the Defendants/Lawyers including Ameriquest Mortgage are proof of notification according to the Official Staff Commentary, 226.2(a)(22)-2 as authorizing service on attorney.

The issue is covered by a Rule of law of the Truth-in-Lending which empower Plaintiff to exercise his right in writing by notifying creditors of his cancellation by mail 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). This action is also based on Massachusetts TILA law, which has a statute of limitations of 4 years.

The filing of Bankruptcy tolls or extends the rescission time as Plaintiff 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, Plaintiff 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.

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. 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.

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). 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.).

Also, the security interest is void and of no legal effect irrespective of whether the creditor makes any affirmative response to the notice. Also, strict construction of Regulation Z would dictate that the voiding be considered absolute and not subject to judicial modification. 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, allowing rescission of 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.

Conclusion - From the analysis, Plaintiff comes to the Conclusion that both the statute and Regulation Z make it clear that, if the Plaintiff 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). 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”. 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. 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. Since the rescission process was intended to be self-enforcing, failure to comply with the rescission obligations subjects Ameriquest Mortgage and other defendants 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. TIL rescission does not only cancel a security interest in the property but it also cancels any liability for the Plaintiff to pay finance and other charges, including accrued interest, points, broker fees, closing costs and that the lender must refund to Plaintiff all finance charges and fees paid. Thus, Plaintiff has the option of enforcing the rescission right in the federal district 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”). Hence, defendant motion to dismiss should be denied.

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5. Plaintiff timely submitted Summons to U.S. Marshal
The facts and circumstances as outlined in the table above, prove that Plaintiff submitted the summons and complaints to the U.S. Marshall office for process timely. Plaintiff received the summons issued on April 3, 2006 by the Court that he submitted timely on April 6 & 7, 2006 to the U.S. Marshall’s office. Once Plaintiff turned over the summons and complaint to U.S. Marshal, he does not has any authority to demand that his summons be delivered right away. Based on the fact mentioned above, Plaintiff believes that the summons were issued timely since the 120 days period, as confirmed by the Massachusetts District Court Clerk’s office, run from April 3, 2006 to July 31, 2006. Also, on July 26, 2006, Plaintiff timely submitted a Motion for Enlargement of Time so that the US Marshal would have appropriate time to serve the remaining summons in their possession.

The issue is covered by a Rule of law that in an action in which the Plaintiff petitions to proceed in forma pauperis, the Fed. R. Civ. P. 4(m) 120-day period for service on the defendant does not begin to run on the date that the Plaintiff files the complaint with the clerk of court without the required filing fee. Courts must allow considerable leeway when assessing whether a pro se litigant’s failure to comply strictly with the time limits should be excused for good cause which is to be determined by the court itself.

Analysis – The time limit rule for service states that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the Plaintiff, could either dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time. Fed.R. Civ. P. 4(m) grants discretion to the district court to extend the time period for service of process, even in the absence of a showing good cause for failure to effect timely service (Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 30 Fed.R. Serv. 3d 823 (3r Cir. 1995) and (Horenkamp v. Van Winkle And Col., Inc., 402 F.3d 1129, 60 Fed. R. Serv. 3d 1260 (11th Cir. 2005)).

In Plaintiff’s case, he filed a timely motion to enlarge time for serving the summons prior to the running of the 120 days. In deciding whether to grant permissive relief, the district court should also take care to protect pro se Plaintiffs from the consequences of confusion or delay as illustrated above by U.S. Marshall or attending the resoluting of an in forma pauperis petition.

Good causes are determined by the following factors:
1) whether the Plaintiff exhibited reasonable diligence or made reasonable effort to effect service:
(Plaintiff submitted promptly all summons to be served within days of obtaining them from the clerk’s office. Also, Plaintiff timeframe to ask for enlargement of time was relied upon the Massachusetts District Court Clerk’s office, which explicitly said that he 120 days from April 3, 2006 or July 31, 2006 to serve all the Defendants. That is why on July 26, 2006, Plaintiff filed a motion asking the court for enlargement of time since there were still 3 summons in the process of being served beyond the July 31, 2006 deadline)

2) whether the party to be served received actual notice of the lawsuit:
(which Alan H. Segal must have received notice of the complaint since Plaintiff has filed a complaint at the Massachusetts Bar Association) (in Re Sheehan, 253 F.3d 507 (9th Cir. 2001)), 3) the degree of prejudice suffered by the party to be served, 4) the degree of prejudice to the serving party if his complaint is dismissed and 5) whether the serving party has moved for an extension of the time to serve.

Conclusion - From the analysis, Plaintiff comes to the Conclusion that when a pro se litigant is proceeding in forma pauperis, he is relying on service by the U.S. Marshals, and as long as he provided the information as illustrated in the table above, to identify the defendant, courts have uniformly held that the Marshals’ failure to effect service automatically constitutes good cause under Fed. R. Civ. P. 4(m). A Plaintiff proceeding in forma pauperis is entitled to rely upon court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service of process, where such failure is through no fault of the litigant. Hence, defendant’s motion to dismiss should be denied.

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person November 15, 2006 to US District Court, District of Massachusetts, Boston and served by United States Postal Mail, postage upon counsel for the defendants (‘Alan H. Segal) mailed on November 15, 2006.

X ____________________________________ Pierre R. Augustin

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it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA

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