Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matters because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "In your suit your actions are that of a truly great American who still believes there is justice. My older son was a lifetime law enforcement officer and in the military. My younger son was a firefighter/paramedic his entire career. They both fervently believed in standing up for those who cannot defend or protect themselves. Were they here, they would be honored to know you. I am hopeful for the first time in almost two years." - Sincerely, Barbara
“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
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://www.rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law,Neil F. Garfield, M.B.A., J.D.
Comments: "I have now read your documents. You have got to be the most astute pro se person in America. The failure to give you a hearing is the most blatant denial of due process possible. Although I am not a lawyer, my experience says that this is high quality legal work and that you should win." - Chris, Massachusetts
Comments: "I must say after reading through your filings, I am absolutely amazed with your knowledge and writings. You missed your calling, you should have been a law professor. I was most impressed in the manner you pulled your thoughts and stressed you view point." - John, Georgia
-----------------------------------------
FOR IMMEDIATE RELEASE (Press Release)
U.S. Supreme Court Asked to Answer
Petitioner takes his relentless pursuit of justice to the next level
Fairfax, Virginia – Pierre-Richard Augustin, Private Attorney General, Ex Rel, has filed a petition (No.: 08-1408) asking the United States Supreme Court to hear his argument that Chase Home Finance and Deutsche Bank National Trust were not the Real Party of Interest (FRCP (17)(a)) and had no standing to appear in court.
The issue here is the interest of justice since the previous decisions from the lower Courts seriously impacted the fairness, integrity and/or public reputation of public proceedings. Mr. Augustin is hopeful that the Supreme Court will grant the petition in order to protect the fundamental right that “a party is not to suffer . . . without an opportunity of being heard.”
Brotherwood of Carpenters v. United States, 330 U.S. 395, 412 (1947)...................................................7
Connor v. Finch, 431 U.S. 407, 421 n.19 (1977) .....................................................................................1
Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-05 and 407 (6th Cir. 1992).......................9
In Deutsche Bank National Trust Co. v. Steele (6th Cir., Jan. 8, 2008).....................................................9
In Maxwell v. Fairbanks Capital Corp.,...................................................................................................12
In re Bratcher, 289 B.R. 205, 218 (Bankr. M.D. Fla. 2003).....................................................................12
In re Fisher, 320 B.R. 52, 65 (E.D. Pa. 2005)..........................................................................................15
In re Foreclosure Cases (S.D. Ohio 2007), 521 F. Supp.2d 650, (Rose, J.).............................................10
In re Foreclosure Cases, (N.D. Ohio 2007)................................................................................................9
In re Foreclosure Cases, 521 F. Supp. 2d 650, 654 (S.D. Ohio 2007).....................................................11
In re Gorshtein, 285 B.R. 118, 126 n.4 (Bankr. S.D.N.Y. 2002)..............................................................13
In re Marsh, 12 S.W.3d 449, 454 (Tenn. 2000) ......................................................................................15
In re Matus, 303 B.R. 660, 675 (Bankr. N.D. Ga. 2004).........................................................................12
In re Parsley, 384 B.R. 138, 180 (Bankr. S.D. Tex. 2008).......................................................................12
In re Schuessler, 386 B.R. 458, 492-93 (Bankr. S.D.N.Y. 2008)............................................................12
In Wells Fargo Bank, N.A. v. Byrd..........................................................................................................10
Johnson v. Waters, 111 U.S. 640, 667, 28 L. Ed.
547, 4 S. Ct. 619 (1884)...........................................................................................................................16
Marshall v. Holmes, 141 U.S. At 599......................................................................................................16
Northland Ins. Co. v. Illuminating Co., 11th Dist. Nos. 2002-A-0058 and 2002-A-0066, 2004-
Ohio-1529, at ¶17.....................................................................................................................................13
Painter v. Liverpool Oil Gas Light Co., 11 Eng. Rep. 478, 484, 3 Adm. & Eccl. 433, 448-49
State ex rel. Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515..............13
State ex rel. Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515)...............1
Silber v. United States, 370 U.S. 717, 718 (1962).....................................................................................1
Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647).................................................................................1
United States v. Atkinson, 297 U.S. 157, 160 (1936)................................................................................1
I. PLAIN ERROR EXCEPTION WITH RELEVANT EVIDENCES IN APPENDICES
"The interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules." - Justice Douglas, U.S. Supreme Court
The Petitioner, Pierre-Richard Augustin, hereby moves the U.S. Supreme Court for an order (1) vacating its denial of the petition for a writ of mandamus entered on October 6, 2009 and (2) granting the petition based on the 'plain error exception doctrine' and relevant/material evidences provided in the appendices. The ‘plain errors exception' as described in this petition and in the appendices seriously affect the [F]airness, [I]ntegrity and/or [P]ublic [R]eputation of this public proceedings (United States v. Atkinson, 297 U.S. 157, 160 (1936), Silber v. United States, 370 U.S. 717, 718 (1962) and Connor v. Finch, 431 U.S. 407, 421 n.19 (1977) since
(1) Chase and/or Deutsche "lacked the standing to invoke the jurisdiction of the bankruptcy court unless it had, in an individual or a representative capacity, some real interest in the subject matter of the action (State ex rel. Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515);
(2) Chase and/or Deutsche never presented any competent first hand witness (a body) or a real person with an INJURY making the complaint and bringing evidence before the bankruptcy court (Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647), substantial basis therefore, or even providing Petitioner with an opportunity to receive, review or reply to the motion of relief of stay;
(3) The real party in interest (i.e. investors have not "ratified the commencement of this action."). The real party in interest is the person who has the right to come to court and seek relief, as recognized by the law FRCP, 17(a) (see Charles E. Clark & Robert M. Hutchins, The Real Party in Interest, 34 Yale L.J.). The Third Circuit has indicated that a party is not the real party in interest in the jurisdictional sense unless it is seeking to protect its own interests rather than fulfilling obligations to another party (See Airlines Reporting, 58 F.3d at 862 (noting that the plaintiff was the real party in interest for procedural purposes but not for jurisdictional purposes because he was merely fulfilling contractual obligations).
(4) The original mortgage lender, New Century Mortgage or its assignees sold its rights to receive certain future monies (receivables) to an entity, the "pool". The pool sold their interests ("pool securities") to investors. The term "pool securities" are securities issued by a pool or "securitization securities" mean the interests acquired by investors in securitization transactions. The pool used the proceeds from the sale of pool securities to pay New Century Mortgage or its assignees for the receivables which means the note had already been paid and satisfied, however, no material disclosure was made to Petitioner;
(5) Charles A. Lovell Representing Chase and Deutsche of Partridge, Snow & Hahn LLP, aided and abetted by sending out the demand or default letter, posted a notice of sale, filed, carried out the foreclosure action by committing FRAUD in representing itself as the lender or as an authorized representative of Chase and/or Deutsche since none of them have any interest, ownership or control over the security instruments or the promissory note, thus resulted as a FRAUD upon the Courts (see appendix 2.4 on pages 34-35) and;
(6) The transaction resulted in the issuance of a negotiable security by the Petitioner and his wife under false pretenses, the addition of terms, conditions, provisions and parties without the knowledge of the Petitioner and his wife, culminating in the sale of unregulated securities under false pretenses. In fact, the loan obligation on the original promissory note executed at the real estate closing have been paid by the investors who acquired interests in the securitization transactions.
Furthermore, according to a telephone verification of employment (VOE) (see Appendix 1.1) that was conducted by Deborah Cali of New Century Mortgage (assigned later to Chase or Deutsche) in reference to Petitioner's wife, Briget Ngampa, in the telephone audit document that (Debbie) Deborah Jarvis, an Executive Secretary, employed by the City of Lowell Public schools, Lowell, Massachusetts verified over the telephone that Briget Ngampa was employed by Lowell High School for 2 years as a Teacher with a $45,000 yearly salary on April 14, 2004 (see Appendix 2.0). Let's look at this situation from a legal perspective. If a mortgage broker & underwriter know a borrower's true income and purposely misstate it, is it fraud? Simply put, the answer is yes. That telephone audit verification of employment was a fabricated, constructive, formulated fraud induce onto Petitioner and his wife (who made less than $2500 in 2003 as a W-2 wage earner) who were unsophisticated borrowers at the time of their refinancing, as well as on the personnel department of the City of Lowell Public School that were fabricated (forgery, federal mail fraud, wire fraud, bank fraud, fraud in the execution, mortgage fraud & perjury) in civil conspiracy with the Commonwealth Land Title Ins. Co., Allied Home Mortgage Capital Corp., Samuel P. Reef, Closing Attorney for New Century Mortgage and by Deborah Cali, Underwriting Auditor of New Century Mortgage which was [refuted and denied as untrue on October 23, 2009 (see Appendix 2.0)] by (Debbie) Deborah Jarvis, Executive Secretary named in the telephone audit document, employed by the City of Lowell Public schools personnel department in Lowell, Massachusetts.
According to Appendix 1.1 entiled underwriting telephone audit, Deborah Cali, Underwriting Auditor at New Century Mortgage did finagle, made materially false and misleading statements, acted negligently in disregarding of federal and state laws that governed underwriting procedures and with deliberate reckless disregard for the truth by falsifying documents constituted willful deceit and constructive fraud that led to the harm, damage and deprivation of Petitioner's property rights. Deborah Cali's wet ink signature on and participation in the preparation and dissemination of the telephone audit did have the power to influence and control, and did influence and control, directly or indirectly, the decision making to grant a finagle and fraudulent loan from the inception and set aside the proper evaluation process and credit scoring systems and methods.
Also, according to Page 54 of the final report of Michael J. Missal Bankruptcy Court Examiner of case#: 07-10416 (KJC), see Appendix 1.3 of Examiner Report:
"...New Century apparently used an outdated DOS-based loan underwriting and appraisal operating system, which, according to one Management interviewee, allowed users to "finagle anything."168"
According to the 10-k report, collectively, the New Century Officers provided false statement, Deception, Acted in Scienter, LIED and materially misstated information conveyed since, on or about March 16, 2006, the New Century Officers Cole, Morrice, Gotschall and Dodge filed the Company's Form 10-K for the quarter and year ended December 31, 2005, provided the following untrue statement to the Security and Exchanges (SEC):
"Our loan origination standards and procedures are designed to produce high quality loans. These standards and procedures encompass underwriter qualifications and authority levels, appraisal review requirements, fraud prevention, funds disbursement controls, training of our employees and ongoing review of our employees' work. We help to ensure that our origination standards are met by employing accomplished and season managers, underwriters and processors and through the extensive use of technology. We also have a comprehensive training program for the continuing development of both our existing staff and new hires. In addition, we employ proprietary underwriting systems in our loan origination process that improve the consistency of underwriting standards, assess collateral adequacy and help to prevent fraud, while at the same time increasing productivity."
The New Century Officers were controlling persons of the company due to their senior executive positions therewith; their direct involvement in its day-to-day operations including its financial reporting and accounting functions; and their signatures on and participation in the preparation and dissemination of New Century's public filings. They were each involved in drafting, producing, reviewing and/or disseminating the statements and set the stage and company policy that encourage and tolerated New Century and its agents to disregard of their underwriting fiduciary duties and credit practices. Thus, the New Century Officers' repeated public statements that the Company had improved its loan performance by implementing "stricter" or "improved" underwriting standards were materially untrue and misleading when made.
Contrary to the New Century officers repeated statements, underwriting standards were not increased, but actually loosened. Moreover, New Century's account executives and employees were highly motivated to close as many loans as possible given that sales and/or loan volume were key components of the variable part of their compensation. As officers and directors of a publicly-held company whose shares are registered with the SEC pursuant to the Exchange Act, traded on the New York Stock Exchange, and governed by the Federal securities laws, the New Century officers each had a duty to disseminate promptly, accurate information with respect to the Company's business, operations, financial statements and internal underwriting controls.
II. STATEMENT OF ISSUES
Whether Chase Home Finance and Deutsche Bank National Trust had standing to invoke the jurisdiction of the court in the first place (not sui juris) and the violation of the principle of due process are matters that encroached upon Petitioner's fundamental rights in accordance to the first, fourth, fifth and ninth Amendments of the Bill of Rights for the constitution of the United States of America?
III. FUNDAMENTAL BASIS OF ARGUMENT
Our civil justice system is there to enforce the Rulebook of Fair Play, to keep America and Americans safe, and to deter and punish wrongful behavior that injures others. The civil justice system follows roughly the same common-sense principles we all learned as kids (and try to teach our own kids): Everybody should play fair. When somebody doesn't play fair, they should take responsibility and not put the financial burden of their wrongdoing on the rest of society. When somebody doesn't play fair, they put all of us at risk and put the safety of American society, the U.S. economy and the global economy in jeopardy. Therefore, the public expects fairness and a sense of justice. For that reason, the U.S. Supreme Court must declared the illegal and fraudulent foreclosure on Petitioner's home void in the interest of justice to preserve his fundamental right since jurisdiction can be and is being challenged and must be proven.
IV. SUMMARY OF ARGUMENT
Federal law prohibits Chase and/or Deutsche to use "any false, deceptive, or misleading representation or means in connection with the collection of any debt..." including the "false representation of .... the character, amount, or legal status of any debt..." and the "threat to take any action that cannot legally be taken..." 15 U .S.C. 169 2e (see Appendix 2.2 - Qualified Written Request, certified response (appendix 2.0) from the City of Lowell Personnel Department, Lowell, Massachusetts). Upon examination of the relevant/material evidences in the appendices and the defense of lack of jurisdiction in this appeal, the ‘plain errors' are so serious and constitute a fundamental unfairness that will be automatically evident to the U.S. Supreme Court (See rotherwood of Carpenters v. United States, 330 U.S. 395, 412 (1947)).
Due to the fact that no public hearing took place and Petitioner was never given the opportunity to be heard (violation of due process) nor did Chase or Deutsche ever produce in court the original copy of the mortgage note for inspection, the chain of title or evidence that they were holder of due course, therefore, the United States Supreme Court should reflect a demarcation from the status quo with an Extraordinary and Exceptional ruling to not only protect the fundamental rights of Petitioner in accordance to the fourth, fifth and ninth amendments of the Bill of Rights but also to nullify the unwarranted foreclosure to maintain uniformity of the court's decisions because Chase and Deutsche did not have cleaned hands, acted willfully and maliciously to commit a fraud upon the Courts.
V. ARGUMENT - Violations of Petitioner's Fundamental Right
1. What Happen When Unreliable Witness Testimony Are Provided In Criminal Cases?
The problem of unreliable witness testimony has been illustrated in a number cases released
since 1976 from death rows in the USA on the grounds of innocence. For example:
・ Thomas Gladish, Richard Greer, Ronald Keine and Clarence Smith were exonerated in 1976 in New Mexico two years after being sentenced to death. A newspaper investigation
uncovered perjury by the prosecution's key witness, perjured identification given under police pressure, and the use of poorly administered lie detector tests.
・ Larry Hicks was acquitted at a retrial in 1980, two years after being sentenced to death in Indiana. At the retrial, evidence showed that eyewitness testimony that had been used against him at the original trial had been perjured.
・ Anthony Brown was acquitted at a retrial in Florida in 1986. Three years earlier he had been sentenced to death on the basis of evidence from a co-defendant who received a life sentence. At the retrial, the co-defendant admitted that his original testimony had been perjured.
・ Charles Smith was acquitted in 1991 in Indiana, eight years after being sentenced to death. At the retrial, the defense presented evidence that witnesses at his original trial had given perjured testimony.
・ Federico Macias was sentenced to death in Texas in 1984 on the basis of the testimony of a co-defendant and jailhouse informants. His conviction was overturned, a grand jury refused to indict him again because of lack of evidence. He was released in 1993.
・ Walter McMillian was released in Alabama in 1993, six years after being sentenced to death. His conviction was overturned after it was shown that three of the state's witnesses had given perjured testimony.
・ Charles Fain was released in August 2001 after charges against him were dropped. He had been sentenced to death in Idaho in 1983. The evidence against him included the word of two jailhouse informants, who said that Fain had confessed to the murder.
・ Joseph Amrine was released in Missouri in 2003, 17 years after being sentenced to death for murder on the basis of the testimony of fellow inmates, who later recanted their testimony.
・ Alan Gell was acquitted in North Carolina in 2004, six years after being sentenced to death. At his retrial, the defense presented evidence that the state's two key witnesses had lied at the original trial.
Life, liberty (as illustrated above) and property are all related, since the greatness of the United States of America is intertwined with property rights as "the guardian of every other right." Thus, in asking for a rehearing from the United States Supreme Court, Petitioner stands with a sense of deep humility and great assurance -- humility in the wake of those great American Jurists who have stood up for righteousness & assurance that the interest of justice and protection of Petitioner's fundamental rights (sui juris) are paramount and sine qua non.
2. Chase or Deutsche Withheld Relevant EvidencesIntentionally
The most fundamental piece of evidence to support a claim is a copy of the promissory note or instrument establishing the existence and terms of the debt. A note is necessary to establish the existence of a debt, its key terms, and Chase or Deutsche's standing to collect the debt. Without documentation of the debt presented in court, Petitioner has never verified the legitimacy of the claim.
In Deutsche Bank National Trust Co. v. Steele (6th Cir., Jan. 8, 2008), Case No. 2:07-CV-886, the court held: "While a court has no duty to search the record and may properly limit its review of an unopposed motion for summary judgment to the facts relied on by defendant, Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-05 and 407 (6th Cir. 1992), it cannot enter judgment if the moving party is not entitled to judgment as a matter of law. Rule 56(c),
Fed.R.Civ.P., Several judges have held that a complaint must be dismissed if the plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed. E.g., In re Foreclosure Cases, (N.D. Ohio 2007), Case Nos. 1:07CV2282, et seq., (Boyko, J.); In re Foreclosure Cases (S.D. Ohio 2007), 521 F. Supp.2d 650, (Rose, J.). Thus, since Chase and/or Deutsche has offered no evidence that it owned the note and mortgage at the lower Courts as requested in Petitioner's Qualified Written Request (see appendix 2.2), it should not have been entitled to judgment as a matter of law" or void ab initio. In Wells Fargo Bank, N.A. v. Byrd, supra, where Wells Fargo filed suit on its own behalf but acquired the mortgage from the original lender after filing, the court held that, "in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage."
Petitioner's facts are similar to the cases just mentioned. Any affidavits that were signed by any of Chase or Deutsche's employee who was never in court to be cross-examined, are inadmissible as hearsay and cannot be allowed against Petitioner. Only the party who actually has the note can filed an action in court (or has jurisdiction). The note is the promise to pay, not the mortgage. All the mortgage does is secure the note holder's right to foreclose IF Petitioner had failed to meet the terms of the note. If Chase or Deutsche did not possess the Note, then there should have been No Foreclosure. If Chase or Deutsche did not possess the Mortgage, then there should have been No Foreclosure. Therefore, No Note and/or Mortgage equals No Foreclosure.
The note is not a mortgage. The mortgage is not a promise to pay. Chase and Deutsche must have had both. Since Chase and Deutsche were not the original lender, then they must have not only the note and mortgage but all documents giving admissible evidence that they are entitled to bring the action and are the "holder in due course", i.e., lawfully holds all rights to both the note and mortgage. Thus, Chase and Deutsche did not have standing to bring a foreclosure action against Petitioner's primary residence. As such, the bankruptcy court erred in granting the stay and the foreclosure action since Chase and Deutsche lack jurisdiction, standing and was not entitled to judgment as a matter of law and have violated Petitioner's fundamental right.
3. Chase or Deutsche Provided No Proof-Of-Claim
FED. R. BANKR. P. 3001(c)-(d). The proof-of-claim form also contains the following instructions: "You must attach to this proof of claim form copies of documents that show the Petitioner owed the debt claimed. If the documents are not available, you must attach an explanation of why they are not available"; and "[y]ou must . . . attach copies of the documentation of your lien, and state the amount past due on the claim as of the date the bankruptcy case was filed." Unlike mortgages, notes are not recorded in public records.
If Petitioner does not have a copy of the note, and Chase or Deutsche does not provide one, the servicer has an informational advantage, which Rule 3001 was presumably designed to eliminate. Then, the promissory note or other debt instrument is absolutely necessary to enable the Petitioner, trustee, and other creditors to verify that the amount asserted as owed on the proof of claim is correct. The note contains the initial account balance, the applicable interest rate, and the terms that govern the mortgagee's ability to charge fees see also In re Foreclosure Cases, 521 F. Supp. 2d 650, 654 (S.D. Ohio 2007) (dismissing foreclosure cases for lack of standing when ownership of the note was not established)). Despite unambiguous federal rules designed to protect homeowners and ensure the integrity of the bankruptcy process, Chase or Deutsche failed to comply with the laws that govern bankruptcy claims and jurisdiction.
Chase or Deutsche's proofs of claim lack the documentation necessary to establish a valid debt (See, e.g., In re Matus, 303 B.R. 660, 675 (Bankr. N.D. Ga. 2004) ("The [bankruptcy] statutes are designed to insure complete, truthful and reliable information is put forward at the outset of the proceedings, so that decisions can be made by the parties in interest based on fact rather than fiction." (quoting In re Bratcher, 289 B.R. 205, 218 (Bankr. M.D. Fla. 2003))). In Maxwell v. Fairbanks Capital Corp., the court found that "Fairbanks, in a shocking display of corporate irresponsibility, repeatedly fabricated the amount of the Debtor's obligation to it out of thin air." The court held that this behavior violated both federal and state law. After the court's ruling on liability, the debtor settled the case for a full discharge of her mortgage and $125,000 in damages and attorneys fees. Thus, Chase and Deutsche have violated Petitioner's fundamental right by withholding the original note and lack standing to invoke the court jurisdiction.
4. Chase or Deutsche Provided Patently False Allegations
Several courts have complained about unsubstantiated or patently false allegations in mortgagees' motions for relief from the stay. 95 See, e.g., In re Schuessler, 386 B.R. 458, 492-93 (Bankr. S.D.N.Y. 2008) (imposing sanctions requiring the creditor to pay the debtors' attorneys fees and costs caused by the filing of an unsubstantiated motion for relief from the stay); In re Parsley, 384 B.R. 138, 180 (Bankr. S.D. Tex. 2008) (finding that an attorney's misrepresentation of the stay-relief motion was conducted in bad faith, but declining to impose sanctions)). Courts have lamented mortgage servicers' practice of filing motions to vacate the automatic stay based on nonexistent records or inaccurate information stemming from poor accounting practices, and have rejected what one court termed the mortgage servicers' "dog ate my homework" excuses for such problems In re Gorshtein, 285 B.R. 118, 126 n.4 (Bankr. S.D.N.Y. 2002)).
These courts have emphasized two main harms: (1) damage to the judicial process when a court is asked to rule on incorrect or baseless facts as occurred in Petitioner's case, and (2) the danger that a family will lose its home without just cause and in violation of the Bankruptcy Code, again as occurred to Petitioner. Creditors who file claims are required to use Official Form 10 or a similar document that substantially conforms to the form (FED. R. BANKR. P. 3001(a)). Form 10 directs creditors to attach an itemized statement if their claim "includes interest or other charges" in addition to the principal amount (See generally David Gray Carlson, Proofs of Claim in Bankruptcy: Their Relevance to Secured Creditors, 4 J. BANKR. L. & PRAC. 555 (1995) (describing the reasons why secured creditors file proofs of claim). Chase and Deutsche have faced no meaningful consequences when they intentionally disregarded the law in submitting unsubstantiated claims for judicial approval. Thus, Chase and Deutsche have violated Petitioner's fundamental right and lack standing to invoke the court jurisdiction.
5. No Standing To Invoke The Court Jurisdiction & No Evidentiary Hearing Was Held
Chase and/or Deutsche lacking any right or interest to protect should not have been permitted to invoke the jurisdiction of the lower Courts. Northland Ins. Co. v. Illuminating Co., 11th Dist. Nos. 2002-A-0058 and 2002-A-0066, 2004-Ohio-1529, at ¶17 (internal quotations and citations omitted). "A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of the action. State ex rel. Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515.
Few principles of law, applicable as well to the administrative process, are as fundamental or well established as "a party is not to suffer . . . without an opportunity of being heard." Painter v. Liverpool Oil Gas Light Co., 11 Eng. Rep. 478, 484, 3 Adm. & Eccl. 433, 448-49 (K.B. 1836). Federal Rule of Bankruptcy Procedure 3001 imposes two additional evidentiary requirements on proofs of claim (consumer home loans are typically intended for sale on the secondary market, separation of the note and the mortgage help ensure that the note is a negotiable instrument that will be subject to the holder-in-due-course defense upon transfer): (1) a copy of the writing if one evidences the claim (FED. R. BANKR. P. 3001(c) ("When a claim, or an interest in property of the debtor securing the claim, is based on a writing, the original or a duplicate shall be filed with the proof of claim."), and (2) evidence of perfection if the creditor asserts a security interest in the property of the debtor (Id. 3001(d) ("If a security interest in property of the debtor is claimed, the proof of claim shall be accompanied by evidence that the security interest has been perfected.")) and the standing to invoke the court jurisdiction.
Requiring the documentation of the itemization, note, and mortgage permits all parties in a bankruptcy case-debtor, trustee, and other creditors-to ensure the accuracy and legality of the claim. Without documentation, Petitioner was never able to verify (fundamental right) that the claim was correctly calculated and that it reflected only amounts due under the terms of the note and mortgage and permitted by other applicable law (For example, some states have specific laws that govern foreclosure costs and fees. See, e.g., MICH. COMP. LAWS § 600.2431 (2007) (capping attorneys fees in a non-judicial foreclosure at no more than $75 if the mortgage does not specifically contract for such attorneys fees)). Therefore, the documentation requirements for mortgage proofs of claim are unambiguous and longstanding See, e.g., FED. R. BANKR. P. 3001 advisory committee's notes (indicating that the requirements for mortgage proofs have remained largely identical since at least 1983)). Thus, Chase and Deutsche have violated Petitioner's fundamental right and the standing to invoke the court jurisdiction.
VI. REQUESTED RELIEF
The lack of standing of Chase and/or Deutsche has harmed the Petitioner and the integrity of the bankruptcy system. These laws evidence Congress's belief that bankruptcy is a serious and important process and that full disclosure is necessary to preserve the system's integrity (creditors who participate in cases also submit themselves to federal process and should be required to comport with the rules that govern their actions in bankruptcy cases). Under bankruptcy law, a mortgage that is not properly perfected can be avoided (161.11 U.S.C. § 544 (2006)). This provision is commonly called the "strong arm" power because it permits the trustee to "knock off" security interests that are not properly perfected under state law to defeat certain other types of creditors. Without a security interest, the mortgage of Petitioner was an unsecured obligation (See, e.g., In re Fisher, 320 B.R. 52, 65 (E.D. Pa. 2005) (holding that a bankruptcy trustee may avoid a mortgage under 11 U.S.C. § 544 on the basis that it was improperly proved and recorded); In re Marsh, 12 S.W.3d 449, 454 (Tenn. 2000) (ruling that, under Tennessee law, a deed of trust that lacks a notary seal acknowledging execution is invalid as a lien)).
Chase and Deutsche provided patently false documentation which resulted in the manipulation of the bankruptcy system, harmed to the Petitioner, committed a fraud upon the Courts and resulted in the violation of Petitioner's fundamental right. The Court has held that if a party (like Chase Home Finance or Deutsch Bank National Trust perpetuated on the courts) has used fraud to obtain a judgment, [an adverse party may, by bringing a new proceeding, invoke the power of the courts to scrutinize the conduct of the parties in the previous action. See Marshall v. Holmes, 141 U.S. at 599, quoting Johnson v. Waters, 111 U.S. 640, 667, 28 L. Ed. 547, 4 S. Ct. 619 (1884). (Where fraud is found, the party that used fraud should be deprived of the benefit of the judgment and any inequitable advantage gained and the courts should not forfeit truth for the sake of finality, nor let the technical intricacies of the law obscure their just administration and the expectation of justice OR LOWER THE BAR TO THE FINANCIAL INSTITUTIONS.)
On October 14, 2009, Judge Keith Long of the Massachusetts Land Court wrote:
"The blank mortgage assignments they possessed transferred nothing...in Massachusetts, a mortgage is a conveyance of land. Nothing is conveyed unless and until it is validly conveyed. The various agreements between the securitization entities stating that each had a right to an assignment of the mortgage are not themselves an assignment and they are certainly not in recordable form...The issues in this case are not merely problems with paperwork or a matter of dotting i's and crossing t's. Instead, they lie at the heart of the protections given to homeowners and borrowers by the Massachusetts legislature. To accept the plaintiffs' arguments is to allow them to take someone's home without any demonstrable right to do so, based upon the assumption that they ultimately will be able to show that they have that right and the further assumption that potential bidders will be undeterred by the lack of a demonstrable legal foundation for the sale and will nonetheless bid full value in the expectation that that foundation will ultimately be produced, even if it takes a year or more. The law recognizes the troubling nature of these assumptions, the harm caused if those assumptions prove erroneous, and commands otherwise." (U.S. Bank National Association v. Ibanez/Wells Fargo v. Larace)
In the interest of justice, Petitioner hereby moves the United States Supreme Court for the application of the rule of law for an extraordinary/exceptional order granting the petition for a writ of mandamus based on the ‘plain error exception' in line with the public sentiments and expectations of fairness and integrity in judicial proceedings to prevent a miscarriage of justice and a gross violation of Petitioner's fundamental rights. May The Lord Almighty Bless You.
"The interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules." - Justice Douglas, U.S. Supreme Court
Respectfully Submitted,
Pierre-Richard Augustin, MPA, MBA, Petitioner
Private Attorney General, Ex Rel
3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069
No.: 08-11070
IN THE
SUPREME COURT OF THE UNITED STATES
______________________
Pierre-Richard Augustin, Petitioner
VS.
Hon. Juan R. Torruella, Hon. Michael Boudin and Hon. Norman H. Stahl
of the First Circuit Court of Appeals
Hon. Nathaniel Gordon of the Federal District Court of Massachusetts
Hon. Joel Rosenthal of the U.S. Bankruptcy Court of Massachusetts
Deutsche Bank National Trust and/or Chase Home Finance ("Appellee")
Not Real Parties In Interest, Without Standing And Never Provided Proof Of Claim:
RESPONDENTS
PETITION OF REHEARING
PROOF OF SERVICE
I, Pierre-Richard Augustin, do swear or declare that on this date, November 17, 2009, as required by Supreme Court Rule 29, have served the enclosed Petition for Rehearing on each party to the above proceeding or that party's counsel and on every other person required to be served including the Solicitor General of the United States, Room 5614, Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530-0001 by deposing an envelope containing the above documents in the United States mail properly addressed to each of them and with first class postage prepaid for delivery with 3 calendar days.
The names and addresses of those serve are as follows:
Hon. Juan R. Torruella, Hon. Michael Boudin and Hon. Norman H. Stahl
First Circuit Court of Appeals, 1 Courthouse Way, Boston, MA 02210
Hon. Nathaniel Gordon
Federal District Court of Massachusetts, 1 Courthouse Way, Boston, MA 02210
Hon. Joel Rosenthal
U.S. Bankruptcy Court of Massachusetts
595 Main Street, Worcester, MA 01608
Elena Kagan
Solicitor General of the United States, Room 5614, Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530
Charles A. Lovell, Attorney
Representing Chase and Deutsche
Partridge,Snow & Hahn LLP 180 South Main Street, Providence, RI 02903-7120
United States Supreme Court Clerk's Office
United States Supreme Court, 1 First Street N.E., Washington, DC 20543
Eric H. Holder, Jr. Attorney General
U.S. Department of Justice, 950 Pennsylvania Ave, NW, Washington, DC 20530
Senator Patrick J. Leahy
Judiciary Committee, 224 Dirksen Senate Office, Washington, DC 20510
Rep. John Conyers Jr.
Judiciary Committee, 2138 Rayburn House Office, Washington, DC 20515
I declare under penalty of perjury that the foregoing is true and correct.
Executed on November 17, 2009
Respectfully,
Pierre-Richard Augustin, MPA, MBA, Petitioner
Private Attorney General, Ex Rel
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 617-202-8069
CERTIFICATION OF GOOD FAITH AND NOT FOR DELAY
I, Pierre-Richard Augustin, represented by self, executed, made, and signed this Certificate of Good Faith and Not For Delay. I certify, verify and state under penalty of perjury that the foregoing Certificate of Good Faith and Not For Delay is true and correct.
Respectfully,
Pierre-Richard Augustin, MPA, MBA, Petitioner, Private Attorney General, Ex Rel
3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069
VERIFICATION
I, Pierre R. Augustin, hereby depose and state as follows:
1. I am Pierre R. Augustin, represented by self.
2. I have read the foregoing 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.
AFFIDAVIT / AFFIRMATION
I, Pierre-Richard Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the Petitioner, and I respectfully submit this affidavit/affirmation.
2) I have personal knowledge of facts which bear on this brief.
I declare under penalty of perjury that the foregoing is true and correct, except as to those allegations based on information and belief which I believe to be true.
Dated: November 17, 2009_______________________________________
Pierre-Richard Augustin, Petitioner, Private Attorney General, Ex Rel
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617) 202-8069
STATE OF __________________COUNTY OF_________________________
On this November 17, 2009, 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)
APPENDIX 1
1.1- NEW CENTURE MORTGAGE UNDERWRITING TELEPHONE AUDIT
1.2 FINAL REPORT OF EXAMINER REPORT ON NEW CENTURY MORTGAGE's
1.3 OUTDATED DOS UNDERWRITING ALLOWED USERS TO FINAGLE ANYTHING
Deborah Platt Majoras, Chairman, The Federal Trade Commission
Washington, DC 20580
Re: 3rd Emergency Request for help to stop an Illegal and Fraudulent Foreclosure
Honorable Chairman:
I am writing to make a [3rd Emergency Request for help to stop an Illegal and Fraudulent Foreclosure] Proceedings by Chase Home Finance & Deuthsche Bank National Trust'. On September 26, 2006, I had timely and legally invoked my Truth-in-lending Act (TILA) right of rescission pursuant to 15 U.S.C. §1635 and M.G.L. c. 140D to protect my property rights. Thus, the mortgage is void and unenforceable. Therefore, this present foreclosure action is improper and immoral.
"Unequivocally, to allow these foreclosure proceedings to go any further will not only be a gross injustice but will violate all notions of public policy, the trampling of the spirit of the law and the violation of the equal protection principle as well as the philosophical disregard to the notion of the pledge of allegiance of the united states of America Pledge that states "one nation under God, indivisible, with liberty and justice for all."
TILA is a remedial statute designed to protect and to defend consumer's property rights such as myself, who is not on equal footing with lenders such as Chase Home Finance or Deuthsche Bank National Trust, who are powerful corporations with unlimited budget represented by the most savvy lawyers who are determined to violate and to usurp the law to achieve their aim of stripping away my property rights illegally and fraudulently despite my legal objections and defenses.
This is why I am bringing this 3rd Emergency Request for Help to your attention because all other remedies, reasonable and good faith efforts have failed. The auction sale scheduled on May 16, 2007 will be irreversible and moot any subsequent and all pending legal actions. Silence is consent. Would you please make every effort to help me resolve this matter? In the midst of this situation, I ponder on the word of the prophet Habakkuk's (1:2-4) complaint;
"O LORD, how long shall I cry for help, and you will not hear? Or cry to you "Violence!" and you will not save? Why do you make me see iniquity, and why do you idly look at wrong? Destruction and violence are before me; strife and contention arise. So the law is paralyzed, and justice never goes forth. For the wicked surround the righteous; so justice goes forth perverted." Thank you for considering this 3rd Emergency Request for Help.
Sincerely,
Pierre R. Augustin, MPA, MBA
Cc:
Banking, Housing and Urban Affairs Committee;Judiciary Committee; Financial Services Committee;
Judiciary Committee; US Attorney General and Massachusetts Attorney General
2.2
Pierre R. Augustin, Pro Se 28 Cedar Street
Lowell, MA 01852
Tel: 617-202-8069
April 12, 2007
Attorney Charles Lovell
Attorney for Chase Home Finance
and Deutsche Bank National Trust
Providence, RI 02903
Dear Attorney Charles:
In honoring your request to respond to your letter dated April 4, 2007, I am not waiving any rights under TILA, including the 20-day respond period that had expired since October 10, 2006.
I categorically reject all allegations made on that letter since my TILA rescission notice sent to you on September 21, 2006, has precedence, negate your foreclosure actions and voided the security interest in my property.
Please treat this letter as a "qualified written request" under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e). Mr. Pierre R. Augustin, Pro Se disputes this debt and notice of foreclosure since on September 21, 2006, you have received a TILA notice of rescission which voided the security interest and the note on his principal dwelling.
Therefore, I must point out that you are in:
Violation of the Truth-In-Lending Act (TILA) notice of rescission sent to defendants on September 21, 2006 which automatically void the security interest in my property. (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).
Violations of the Federal Fair Debt Collection Practices Act and Massachusetts Debt Collection Laws, Violation of the Fair Credit Reporting ACT and seeking punitive damages per 15 USC 1681 n(a)(2), 15 USC 1681o, 15 USC 1692e(8).
Violation of Statute of Limitation. If you or any of the defendants disputes the plaintiff's right to rescind, they should have filed a declaratory judgment action within twenty days after receiving the rescission notice, before the deadline of October 10, 2006 to return the plaintiff's money or property and record the termination of its security interest according to 15 USC 1635(b).
On November 15, 2006, you and all the other defendants were on notice that they were in default for TILA violations (see docket # 80, Case #: 06-10368).
Violation of the statute of limitationsand fraudulent assignment of the mortgage. Without a security interest in the plaintiff's property, New Century Mortgage, Chase Home Finance, Deuthsche Bank National Trust and any other parties do not have the authority to foreclose or to assign neither the mortgage nor the note.
Violation of the Federal Rule of Civil Procedure 17(a), (East Coast Properties v. Galang, 308 A.D.2d 431, 765 N.Y.S.2d 46 (N.Y. App. Div. 2003). Neither you nor any of the defendants are Real Party in Interest or Holder in Due Course, since the TILA notice of rescission automatically voids the security interest.
Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff's property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff's rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).
In summary, Mr. Augustin states that the mortgage is not valid and in violation of TILA (failure to respond to TILA rescission notice by October 10, 2006) by not complying with required procedures.
Without an interest in the debt, you do not have the authority to foreclose since you do not have an enforceable security in the property because the mortgage and note assignment were improper and ineffective.
If you are not the current holder of the note and mortgage relating to Mr. Pierre R. Augustin's mortgage account, please provide the name and address of said true owner of the obligation (15 USC, 1641(f)(2)) or holder and indicate your relationship to this entity.
Therefore, absent of transferring debt precludes action for foreclosures because the assignment of the mortgage alone is a nullity, the note cannot be enforced and in violation of U.C.C. requirement. This is a Fraudulent maneuver.
Mr. Augustin loan account should be zero due to TILA rescission notice. Thus, the Loan account is in error. In invoking the protection of the service act, Mr. Pierre R. Augustin is challenging this notice of foreclosure since the foreclosure proceeding is erroneous (12 USC 2602(1)(a).
Do take the necessary action to correct this error in responding to this qualified written request by complying with 12 USC 2605(d), 12 USC 2605(e) and 12 USC 2505(f).
Thank you for taking the time to acknowledge and answer this request as required by the Real Estate Settlement Procedures Act (sec. 2605(e)).
Sincerely,
Pierre R. Augustin, Pro Se
2.3
Statistical & Relevant Documentary Evidences of Lower Underwriting Standards
While the New Century Officers stated repeatedly that the credit quality of the Company's mortgages was "strong," "excellent," "very high" and "higher" or "better" than it had been in the Company's past as the result of purportedly "strict," "improved" and "strong" underwriting controls and guidelines and risk management discipline, the reality is that the percentage of New Century's Mortgage Loans Held for Investment which were 60+ days delinquent grew from the first quarter of 2005 through the third quarter of 2006 as illustrated:
As these data make clear, New Century, as compared to its peer lending companies, was far more likely to make a first lien loan to any given applicant. During 2005, New Century was 50% more likely to make such a loan, and in 2006, the Company was 62% more likely to make such a loan. The reported origination Data (compiled and reviewed data concerning New Century's residential mortgage loans for one-to-four-family homes that New Century reported pursuant to the Home Mortgage Disclosure Act of 1975, 12 U.S.C. §§ 2801-2810, ("HMDA")) are summarized as follows:
New Century also rejected first lien applicants much less often than did its peers. Graph 4 below reflects how often New Century and its peers rejected first lien applicants. Specifically, in 2005 New Century's first lien applicant rejection rate was 55% lower than that of its peer companies. The following year, the Company's first lien applicant rejection rate was 33% lower:
The same basic trends hold true for the Company's second lien lending practices. Although in 2005 New Century originated second lien loans at a rate only marginally higher than that of its peers, in 2006 the Company originated such loans at a rate 22% higher than that of its peers - evincing a substantial loosening of its underwriting for this type of loan.
Graph 5 below reflects those data:
Likewise, New Century denied second lien applicants much less often than did its peer subprime lending companies.
As Graph 6 below reflects, in both 2005 and 2006, New Century rejected such applicants 31% less often:
Not surprisingly as a result of these practices, on December 6, 2007, The New York Times reported that New Century's mortgage loans resulted in some of the highest default rates in the industry: "Loans made by New Century, which filed for bankruptcy protection in March, have some of the highest default rates in the industry - almost twice those of competitors like Wells Fargo and Ameriquest, according to data from Moody's Investor Services." The data further demonstrate that given its loosened underwriting, New Century was far more likely to issue a sub-prime borrower a mortgage loan than were its peers. The fact that delinquencies continued to increase thereafter at a dramatic rate further demonstrates that contrary to the public quoted statements by the officers of the company, New Century's underwriting was not "strict" and "comprehensive", but substantially loosened to produce growing origination volume.
2.4
2.5
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999
2.6
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999
2.7
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999
2.8
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 199
2.9
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999
2.91
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999.
2.92
Please note that Pierre R. Augustin was the primary bread winner in his household from 1997 to 2004.
(a $289,000 stated income loans which was originally used primarily with self-employed borrowers was given to my wife, a W-2 wage earners of only $2,786.99 and her name was not listed on the deed or the mortgage note of the property since I had bought it in 1999
------------------------------------------- I can be reached at (cell) 617-202-8069.
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...! Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
------------------------------------------
Fairfax (703) 584-5998 VA 22031voice 617-202-8069fax (877) 753-3152
