Equal Justice News Release | News Release |  Predatory Lending News Release

United States District Court District of Massachusetts

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

MOTION OF PLAINTIFF FOR LEAVE TO FILE REPLY TO DEFENDANT’S COMMONWEALTH MEMORANDUM
IN OPPOSITION OF ITS MOTION TO DISMISS

Pursuant to Local Rule 7.1(b)(3), Plaintiff wishes to file the enclosed Memorandum in opposition of Land America Commonwealth Motion to dismiss dated on May 26, 2006.

 Respectfully submitted,
 _____________________________
 By Pierre R. Augustin, Pro Se
 28 Cedar Street, Suite 2
 Lowell, MA 01852
 617-202-8069

Dated: June 2, 2006

United States District Court District of Massachusetts
Pierre Richard Augustin, PRO SE  )
Plaintiff,     )
      )
  v.    )  C.A.  No. 06-10368 (NMG)
      )
DANVERSBANK, ET AL.,   )
Defendants.    )

PLAINTIFFS’ REPLY TO DEFENDANT’S MEMORANDUM FILED ON MAY 26, 2006 IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

 
1. Emancipation Redress
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 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. Defendant’s Dubious objectives in Memoranda to create confusions on false assumptions

The facts and circumstances were that Land America Commonwealth was never cited or mentioned as a creditor on plaintiff’s bankruptcy filing.  Defendant’s memorandum filed on May 26, 2006 implied and illustrated clear acts of the bad faith effort of Commonwealth and its 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 EXHIBIT 3” 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” (EXHIBIT 1).  

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.

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 fraud.

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 EXHIBIT 3 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)

The Supreme Court has 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 “contested matter”.  “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)).  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").

FRAUD – As pointed in EXHIBIT 3, defendant commonwealth made (at the preliminary/commitment of the title report on 3/29/2004):
1) a false representation,
2) the person who made that false statement made it knowingly to conceal since it is a routine verification readily available from public document filed at the registry of deed,
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,
4) based on that false 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)).

Conclusion - 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) EXHIBIT 3 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.

United States District Court District of Massachusetts

Pierre Richard Augustin, PRO SE  )
Plaintiff,     )  C.A.  No. 06-10368 (NMG)
      )
  v.    )  Plaintiff’s
      )  Affidavit/Affirmation
DANVERSBANK, ET AL.,   )  In Opposition To
Defendants.    )  Defendant’s Memorandum

I, __________________________________, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the plaintiff in this action, and I respectfully submit this affidavit/affirmation in opposition to the defendant’s motion dated May 26, 2006, made by Attorney Edward A. Gottlieb.
2) The Motion should be denied because of the facts and circumstances outlined in the were dubiously illustrated to create confusion on false assumptions. 
3) I have personal knowledge of facts which bear on this motion.  In view of the foregoing, it is respectfully submitted that the motion should be denied.
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:__________________________________________
    Signature, Pro Se Plaintiff, Pierre-Richard Augustin,
    28 Cedar Street, Lowell, MA 01852, (617) 202-8069

 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)

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person May 16th, 2006 to US District Court, District of Massachusetts, Boston and served by United States Postal Mail, postage upon counsel for the defendants (‘Commonwealth’) mailed on June 2, 2006.

X ____________________________________    Pierre R. Augustin, 28 Cedar Street,
      Lowell, MA 01852, 617-202-8069
 VERIFICATION
 
 I, __________________________________, hereby depose and state as follows:
 
 1. I am ____________________________________________, represented by self. 
 2. I have read the foregoing amended Complaint 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)