Equal Justice News Release | News Release |  Predatory Lending News Release | Letter to Congress

United States Bankruptcy Court District of Massachusetts
Pierre Richard Augustin, PRO SE )
Debtor, )
) 05-46957
v. )
)
DANVERSBANK, ET AL., )
Creditors. )

Motion to Amend Schedules (11 USC 521)

CERTIFICATION OF PERSONAL CONSULTATION
Plaintiff hereby certifies that on July 3, 2006 he hand delivered to the United States Bankruptcy Court of Massachusetts.

1. Amendment of Schedules

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]).

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. 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.

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 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 creditors’ powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.

Intuitively, debtor 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 and equipped with various courtroom strategies that he lacks. Although not a lawyer or pretending to be one, debtor actions are 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 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 plaintiff, 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.

Debtor argument 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 - Debtor property was exempted from the estate. A request for relief from the stay was granted. “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. The Seventh and Fifth Circuits have held that in non-core proceedings, 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).

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 that cannot be litigated at the Bankruptcy court. In his filing at the Federal Court, Debtor alleged that DanversBank violated his due process in obtaining default judgment of seizure of property and debtor never has 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”).

Thus, 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 in mid-April 2006 after the Federal District court has screen 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.

Conclusion - From the analysis, debtor 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)).

Also, in 2005, the Supreme Court revisited the doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corporation, 544 U.S. 280 (2005). The Court affirmed that the Rooker-Feldman doctrine was statutory (based on the certiorari jurisdiction statute, 28 U.S.C. § 1257), and not jurisdictional, holding that it applies only in cases "brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Debtor was not a party (or losers in a state court proceedings) with any secured creditors in any previous state court. Hence, debtor respectfully asked the court to allow the amendment of his schedules.

CERTIFICATE OF SERVICE -- This is to certify that a true and accurate copy of the foregoing motion for amending the schedules will be mailed to all creditors on July 5, 2006.


X ____________________________________ Pierre R. Augustin, 28 Cedar Street,
Lowell, MA 01852, 617-202-8069
VERIFICATION

I, Pierre Richard Augustin, hereby depose and state as follows:

1. I am Pierre-Richard Augustin, represented by self.
2. I have read the foregoing Motion filed herein and knowing the contents thereof have found that the allegations of fact set forth therein are true of my own personal knowledge, except as to those allegations based on information and belief which I believe to be true.

Signed under the penalties of perjury this ________day of ____________2006.
X __________________________________
STATE OF _______________________________COUNTY OF _____________________________
On this _____ day of __________, 2006, before me, the undersigned notary public, personally appeared ___________________________, proved to me through satisfactory evidence of identification, which was _________________________________________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose.

______________________________
Notary Public
My Commission Expires:
(SEAL)