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United States Court of Appeals - District of Massachusetts

Pierre Richard Augustin, PRO SE           )

Plaintiff-Debtor,                                        )

                                                                   )       

                   v.                                             )                 

                                                                   )       

Chase Home Finance, LLC                       )       

Defendant-Creditors.                                 )

MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY

MOTION FOR EXPEDITED REVIEW &

EMERGENCY MOTION FOR STAY PENDING APPEAL

Your Honor, “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])”.  Also, the court is supposed to judge the case based on its merits even if procedural errors are made. Therefore, the court must give a Pro Se Plaintiff-Debtor, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).

I. Legal Argument

1. Relevant Evidence that Plaintiff-Debtor Could Not Have Known of a Cause of Action
Your Honor, laws reflect human values and the legal system reflects beliefs about human behavior. Psychology, as the science of human behavior, offers an avenue for studying the legal system, and the individuals involved in it, from a scientific point of view. Although not a psychologist, Plaintiff-Debtor find it absolutely necessary to set forth 'Relevant Evidence' that is intertwined with the 'Equitable Tolling Principle' on how Plaintiff-Debtor’s state of mind, behavior and thinking were affected by:

1. the psychological impact of his life-threatening situation of being kidnapped or killed in Haiti,

2. the threat of divorce from his wife,

3. the threat of being separated from his children in the United States,

4. the fear of starting over,

5. dealing with the chronic losses or theft of merchandises in Haiti (whenever away on business trip outside Haiti) despite implementing a rigid control of daily inventory control and audit, and

6. the threat of losing his principal residence which had forced him to file for Bankruptcy.

For that matter, Plaintiff-Debtor is presenting the court with historical facts and scientifically-based research from fields such as psychology, sociology and economics to assist in understanding and determining the facts and the reasons why he had no conceivable way of knowing that a probable cause of action existed at the time he filed for bankruptcy in September 25, 2005 and desperately initiated a civil action in February 28, 2006 to stop the foreclosure sale of his property with no prior knowledge and experiences with legal and litigation matters. Retrospectively, filing in Federal Bankruptcy & Civil Court is an extremely complex tasks that involves the mastery of unfamiliar concepts such as substantive law, procedures, forms, formats, terminology, service and legal research which at first create anxiety, confusion and panic for a pro se person like the Plaintiff-Debtor without years of special training. 

Furthermore, from 2002 to September 25, 2005, much of Plaintiff-Debtor's energies and dominant thought were vested on how to keep himself from financial ruined by experimenting with innovative ideas and strategies to turn around his ailing business in Haiti. At the same time frame, while fighting for the survival of his business in Haiti, Plaintiff-Debtor tried unsuccessfully to have his family moved back to Lowell, Massachusetts since his wife and children had moved out to Illinois closer to her family because DanversBank had scared away Plaintiff-Debtor's wife by threatening to seize his property and revealing his personal and business financial matters and issues to his wife without Plaintiff-Debtor's prior written authorizing or consent (violation of Plaintiff-Debtor's right of confidentiality and invasion of privacy).

Therefore, Plaintiff-Debtor's business dreams and family life the way he had conceived it in his mind or accustomed to were vanished, shattered, destroyed and dismantled as a result of DanversBank 'Bullying & Deceptive Tactics' and Haiti's chronic and chaotic political, economic, social upheaval and circumstances that were beyond the control of his sphere of influences. Thus, Plaintiff-Debtor offers those 'Relevant Evidence' as follows:

II. Psychological Theory of Needs
Abraham Maslow developed the Hierarchy of Needs model in 1940-50's (source; Maslow's hierarchy of needs, From Wikipedia, the free encyclopedia). That Hierarchy of Needs theory remains valid today for understanding human motivation, management training, and personal development. Although Plaintiff-Debtor described the five levels of needs, but he would like to point out that his physiological, safety and love/belonging needs were not being met. 

1. Physiological needs - The physiological needs of the organism, those enabling homeostasis, take first precedence. These consist mainly of the need to breathe, the need to drink water, the need to regulate homeostasis, the need to eat and the need to dispose of bodily wastes. Maslow also places sexual activity in this category as bodily comfort, activity, exercise, etc. While several of these activities are important, many are not essential to survive.

2. Safety needs - When physiological needs are met, the need for safety will emerge. Safety and security rank above all other desires. These include physical security — safety from violence, delinquency, aggressions; security of employment, security of revenues and resources; moral and physiological security; family security; security of health; security of personal property against crime.   Sometimes the desire for safety outweighs the requirement to satisfy physiological needs completely.

3. Love/Belonging/Social needs - After physiological and safety needs are fulfilled, the third layer of human needs is social. This involves emotionally-based relationships in general, such as friendship, sexual intimacy, having a supportive and communicative family.

4. Esteem needs - According to Maslow, all humans have a need to be respected, to have self-respect, and to respect others. People need to engage themselves in order to gain recognition and have an activity or activities that give the person a sense of contribution, to feel accepted and self-value, be it in a profession or hobby. Imbalances at this level can result in low self-esteem, inferiority complexes, and an inflated sense of self-importance or snobbishness.

5. Self-actualization - Self-actualization is the instinctual need of humans to make the most of their abilities and to strive to be the best they can. Self Actualization is the intrinsic growth of what is already in the organism, or more accurately, of what the organism is. Maslow writes the following of self-actualizing people: They embrace the facts and realities of the world (including themselves) rather than denying or avoiding them; They are spontaneous in their ideas and actions; They are creative; They are interested in solving problems; this often includes the problems of others; Solving these problems is often a key focus in their lives; They feel a closeness to other people, and generally appreciate life; They have a system of morality that is fully internalized and independent of external authority; They have discernment and are able to view all things in an objective manner. Prejudices are absent. In short, self-actualization is reaching one's fullest potential.

III. How The ‘Relevant Evidence of Hierarchy of Needs’ are Analogous to Plaintiff-Debtor’s Situation
In juxtaposition of Plaintiff-Debtor's Hierarchy of Needs, operating cash flow represents the bottom of his pyramid. Just as food, shelter and water are needed to meet our most basic needs for survival in Maslow's physiological level, cash is the ultimate survival tool for his business. If some needs are not fulfilled, a human's physiological needs take the highest priority. Physiological needs can control thoughts and behaviors, and can cause people to feel sickness, pain, and discomfort. 

Plaintiff-Debtor cash flow was non-existent or just enough to meet the business operating expenses in Haiti only. Despite having invested time, money, effort, prestige and energy to say the least, Plaintiff-Debtor chose to escape Haiti for the safety of his life and abandoned his business dreams. In a nutshell, a cause of action or finding out if any of the defendants had violated any law for that matter in the midst of his financial crisis in Haiti was not even on the radar screen of Plaintiff-Debtor's thinking. Upon returning to the United States in July 2005, Plaintiff-Debtor begged DanversBank to give him 3 months to find a professional job, but the bank says no, threatened to seize his property and demanded full payment immediately and Plaintiff-Debtor was forced to file for bankruptcy to protect his property rights. Thus, Plaintiff-Debtor’s thoughts and behaviors were impacted by his inability to generate positive cash flow to meet his own basic needs such as food, shelter & water in Haiti, providing for his wife and children in the United States and the feeling of helplessness for not being able to meet his business and personal financial obligations in the United States.

IV. Pscychological Theory of Trauma
Webster’s New Twentieth Century Dictionary defines trauma as “an injury or wound violently produced” and “as an emotional experience or shock which has a lasting psychic effect.” The psychiatric definition as described in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th Edition includes “the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (and) the person’s response involved intense fear, helplessness or horror.” We observe that although the trauma, the event itself has ended, the reaction has not. The memory of the precipitating incident leaves the individual with an imprint, a feeling of being stuck, frozen. (DEALING WITH TRAUMA (uploaded 4/12/2001) by Dr. Maurice Kouguell).

Recent research has revealed that emotional trauma can result from such common occurrences as an auto accident, the breakup of a significant relationship, a humiliating or deeply disappointing experience, the discovery of a life-threatening illness or disabling condition, or other similar situations such as Plaintiff-Debtor’s worries of being kidnapped or killed in Haiti. Traumatizing events can take a serious emotional toll on those involved, even if the event did not cause physical damage.

1. Emotional Responses during a traumatic event may include shock, in which the individual may present a highly anxious, active response or perhaps a seemingly stunned, emotionally-numb response. He may describe feeling as though he is “in a fog.” He may exhibit denial, in which there is an inability to acknowledge the impact of the situation or perhaps, that the situation has occurred. He may evidence dissociation, in which he may seem dazed and apathetic, and he may express feelings of unreality. Other frequently observed acute emotional responses may include panic, fear, intense feelings of aloneness, hopelessness, helplessness, emptiness, uncertainty, horror, terror, anger, hostility, irritability, depression, grief and feelings of guilt. (Source: Dr. Mark Lerner is a Clinical Psychologist and Traumatic Stress Consultant who focuses on helping people during and in the aftermath of traumatic events.)

Regardless of its source, an emotional trauma contains three common elements: 1) it was unexpected (Since 2002, Plaintiff-Debtor had been doing business in Haiti and the wave of kidnapping incidences were unknown to him until 2005); 2) the person was unprepared (Plaintiff-Debtor ended up depleting all his cash reserves including his pension funds for retirement to keep the business a float); and 3) there was nothing the person could do to prevent it from happening (the economical activities in Haiti came to a sudden stop or stagnation. Also, the critical question is how could Plaintiff-Debtor have prevented himself from being kidnapped and protected himself from physical violence or harm since business owners were prime target due to the volatile and unpredictable environment in Haiti since his business name was well known as a result of cleaver Television and Radio advertising campaign strategies. Thus, in Haiti, Plaintiff-Debtor was a prime target).

It is not the event that determines whether something is traumatic to someone, but the individual's experience of the event. In time, emotional exhaustion did set in, leading to distraction, and clear thinking was difficult. Emotional detachment, also known as dissociation or "numbing out", can frequently occur. Dissociating from the painful emotion includes numbing all emotion, and the person may seem emotionally flat, preoccupied or distant. The person can become confused in ordinary situations and have memory problems (partly the reasons why Plaintiff-Debtor had to amend his bankruptcy schedules). Some traumatized people may feel permanently damaged when trauma symptoms don't go away and they don't believe their situation will improve. This can lead to feelings of despair, loss of self-esteem, and frequently depression. 

2. Cognitive Responses to traumatic exposure are often reflected in impaired concentration, confusion, disorientation, difficulty in making a decision, a short attention span, suggestibility, vulnerability, forgetfulness, self-blame, blaming others, lowered self-efficacy, thoughts of losing control, hypervigilance, and perseverative thoughts of the traumatic event. For example, upon extrication of a survivor from an automobile accident, he may cognitively still “be in” the automobile “playing the tape” of the accident over and over in his mind.

3. Behavioral Responses in the face of a traumatic event may include withdrawal, “spacing-out,” non-communication, changes in speech patterns, regressive behaviors, erratic movements, impulsivity, a reluctance to abandon property, seemingly aimless walking, pacing, an inability to sit still, an exaggerated startle response and antisocial behaviors.

4. Physiological Responses may include rapid heart beat, elevated blood pressure, difficulty breathing*, shock symptoms*, chest pains*, cardiac palpitations*, muscle tension and pains, fatigue, fainting, flushed face, pale appearance, chills, cold clammy skin, increased sweating, thirst, dizziness, vertigo, hyperventilation, headaches, grinding of teeth, twitches and gastrointestinal upset.

5. Psychological trauma refers to the impact of an extreme stressor critical incident on an individual’s psychological and biological functioning. Traumatic events may arise when an individual is confronted with actual or threatened death or serious injury or some other threat to one’s physical integrity. It also may occur by witnessing these events occurring to others (American Psychiatric Association, 1994). 

6. How Trauma Impacted Plaintiff-Debtor’s Mental & Physical Health
A critical incident may be thought of as an event which serves as a perceived threat or challenge to one’s well-being. A crisis results when that critical incident then serves to overwhelm one’s usual coping mechanisms yielding manifest evidence of impaired functioning and/or evidence of a psychiatric syndrome or disorder. (Everly & Mitchell, 1999). 

Typically, these critical incidents are specific, often unexpected, sometimes potentially life-threatening, time-limited events which present the individual with loss or threats to personal goals or well- being. Examples might include divorce, financial ruin, and serious medical illness. While some individuals encounter critical incidents with minimal disruptions in their daily functioning (Flannery, 1994), more common in threatened individuals are experiences of psychological disorganization, anxiety, depression, and somatic pain. Frequently, these events result in psychological trauma (American Psychiatric Association, 1994; Everly & Lating, 1995; Flannery, 1994; van der Kolk, McFarlane, & Weisaeth, 1996) with its major and painful disruptions in psychological functioning. 

The following is an excerpt of DEALING WITH TRAUMA (uploaded 4/12/2001) by Dr. Maurice Kouguell. Emotional Responses during a traumatic event may include shock, in which the individual may present a highly anxious, active response or perhaps a seemingly stunned, emotionally-numb response. He may describe feeling as though he is “in a fog.” He may exhibit denial, in which there is an inability to acknowledge the impact of the situation or perhaps, that the situation has occurred. He may evidence dissociation, in which he may seem dazed and apathetic, and he may express feelings of unreality. Other frequently observed acute emotional responses may include panic, fear, intense feelings of aloneness, hopelessness, helplessness, emptiness, uncertainty, horror, terror, anger, hostility, irritability, depression, grief and feelings of guilt.

7. Cognitive Responses to traumatic exposure are often reflected in impaired concentration, confusion, disorientation, difficulty in making a decision, a short attention span, suggestibility, vulnerability, forgetfulness, self-blame, blaming others, lowered self-efficacy, thoughts of losing control, hypervigilance, and perseverative thoughts of the traumatic event. For example, upon extrication of a survivor from an automobile accident, he may cognitively still “be in” the automobile “playing the tape” of the accident over and over in his mind. Behavioral Responses in the face of a traumatic event may include withdrawal, “spacing-out,” non-communication changes in speech patterns, regressive behaviors, erratic movements, impulsivity, a reluctance to abandon property, seemingly aimless walking, pacing, an inability to sit still, an exaggerated startle response and antisocial behaviors.

8. Avoidance symptoms involve avoiding places and thoughts associated with the trauma, problems in recall of the event, a marked loss of interest in other significant aspects of the person’s life, restricted emotions, and the sense of a foreshortened future. Arousal symptoms include difficulties with sleep, hypervigilance, exaggerated startle response, difficulty concentrating, and irritability or angry outbursts. A meaningful purpose in life refers to a central event or value that motivates a person to actively participate in the world each day, and which provides direction in life’s darker moments.

9. Faulty Mastery. When traumatic events occur, by definition they are frequently beyond the victim’s control. In addition, certain inadequate coping responses are frequently present as victims attempt to take charge of their lives in the aftermath. Supercontrol is one manifestation of this process. Here the victim in a state of hypervigilance attempts to control every possible aspect of life to prevent a second, unexpected, life-threatening event.

10. Inadequate Caring Attachments to Others. Traumatic events may also disrupt the victim’s network of caring attachments. First, some traumatic events, such as natural disasters, disrupt caring attachments as families and whole communities are impacted and dispersed by the critical incident.

11. Loss of Meaningful Purpose. Sustaining an important commitment in life is enhanced by a sense of coherence of the world (Antonovsky, 1979). A helpful sense of coherence includes the beliefs that the world is safe and predictable, that it is worthy of our investing energy in it, and that individuals can exercise some reasonable mastery in daily life events. However, as Janoff-Bulman (1992) has documented, traumatic events shatter all of these assumptions. The world does not seem orderly and safe nor worthy of one’s investment. Victims are overwhelmed by the forces of nature in natural disasters or are unable to understand the deliberate evil acts freely chosen by twisted human minds in human-perpetrated violence. Traditional purposeful meanings in life seem inadequate and empty, and victims are left without direction. (source: Psychological Trauma and Posttraumatic Stress Disorder: A Review Raymond B. Flannery, Jr., Ph.D. )

V. How The ‘Relevant Evidence of Trauma’ are Analogous to Plaintiff-Debtor’s Situation
Despite many of the warning signs as described above, Plaintiff-Debtor’s was in denial and kept an utopian outlook that the surrounding chaos and lawlessness in Haiti would have not affected the growth or the survival of his business in the long run. Looking back, Plaintiff-Debtor felt as if he was pinned down at a bomb shelter underground, awaiting news that hostility has ceased in order for normalcy of economical activities to resume. In addition, in March 2005, Plaintiff-Debtor was diagnosed with ‘hypertension’ and given medical that made him very sleepy. Hypertension gives a higher risk of heart attack or stroke than any other disease.

Also, Plaintiff-Debtor's situation is analogous and comparable to "the military family studies on cyclical separations show that the wives' abilities to cope with enforced separations revealed a triphasic impact of the separation on the wife similar to Bowlby's (1960) separation anxiety stages seen in children. These comprise: protest, (feelings of "why does he have to go?"), despair, ("I'll never live through the period") and detachment, ("I don't care if he never comes back"). Reunions evoked a converse pattern, with punishment of the husband for having been away, transient disorganisation, and readjustment; again similar to Bowlby's (1960) observations (source: Busuttil, W. & Busuttil, A. M. C. (2001). 

Psychological effects on families subjected to enforced and prolonged separations generated under life threatening situations. Sexual and Relationship Therapy, (Special Psychological Trauma Edition) 16: 3; pp 207-228.) Since Plaintiff-Debtor's wife and 4 children have moved out of state to Illinois in 2004 and now to Virginia in 2007, this is the first time in 15 years that he was unable to spend Thanksgiving day (November 26, 2006) with his family, missed all of his children birthdays in 2006 and can attest to the ‘triphasic impact’ mentioned above. 

VI. How did Plaintiff-Debtor manage to Overcome the above mentioned experiences?
Defendants are likely to challenge Plaintiff-Debtor's premise since he is not a psychologist or received psychotherapy treatment. However, to better understand how Plaintiff-Debtor was able to overcome all the above mentioned experiences, he has no choice but to take a look back on the historical account (Source: HISTORY AND CULTURE: In God We Trust By Michael Novak) of the foundation of this great and blessed country, 'The United States of America'.

1. A God of Action
On the night before the battle of Long Island, the Americans received intelligence that the British were attacking the next morning and that Washington would be trapped with his whole army. Washington saw that there was only one way out—by boat. During the night, the Americans gathered as many boats as they could. There weren't enough. Morning came, and more than half the troops were still on shore. A huge fog rolled in and covered them until noon. They escaped, and when the British closed the trap, there was no one there.

The Americans interpreted that fog as an act of Providence.   In the preaching of the time, Americans learned as follows: Providence does not mean that God works magically. Rather, from all time every detail of the tapestry is known to the one who weaves it. To the Eternal God, there is neither time nor sequence, but every detail of the tapestry is visible to him as if in one simultaneous moment, each thing acting independently and freely but cohering as a whole. Thus, the rival general on the morning of the great battle comes down with dysentery and can't concentrate. Such events were construed as God's will—not circumstance or chance. In the Jewish and Christian understanding, Providence acts by contingent and indirect actions—events are not foreseen, because God doesn't "foresee" anything. He's not before and after, he's present to all things at one time. And like a great novelist, he sees the details of what he does and how they all hook together, without forcing anybody's liberty, without manipulating anything.

2. The crucial point is that all the Founding Fathers—Jefferson included—shared in common a belief that a people cannot maintain liberty without religion.
Mr. Jay of New York and Mr. Rutledge of South Carolina immediately spoke against this motion because (they said) Americans are so divided in religious sentiments—some Episcopalians, some Quakers, some Anabaptists, some Presbyterians, and some Congregationalists—that all could not join in the same act of prayer. Sam Adams rose to say that he could hear a prayer from any gentleman of piety and virtue, as long as he was a patriot. Adams moved that a Reverend Duché be asked to read prayers before Congress on the next morning. The motion carried.

Thus it happened that the first act of Congress on September 7, 1774, was an official prayer, pronounced by an Episcopalian clergyman dressed in his pontificals. And what did he read? He read a Jewish prayer, Psalm 35 in The Book of Common Prayer:

Plead my cause, O Lord, with them that strive with me. Fight against them that fight against me. Take hold of buckler and shield, and rise up for my help. Say to my soul, "I am your salvation." Let those be ashamed and dishonored who seek my life. Let those be turned back and humiliated who devise evil against me.

Before the Reverend Duché knelt Washington, Henry, Randolph, Rutledge, Lee, and Jay. By their side, heads bowed, were the Puritan patriots, who could imagine at that moment their own homes being bombarded by the fleet or overrun by the king's troops. Over these bowed heads the Reverend Duché uttered what all testified was an eloquent prayer for America, for Congress, for the province of Massachusetts Bay, and especially for the town of Boston. The emotion in the room was palpable, and John Adams wrote to Abigail that night that he had never heard a better prayer or one so well pronounced: "I never saw a greater effect upon an audience. It seemed as if heaven had ordained that that Psalm be read on that morning. It was enough to melt a stone. I saw tears gush into the eyes of the old, grave pacific Quakers of Philadelphia."   In this fashion, right at its beginning, this nation formed a covenant with God that is repeated in the Declaration: "with a firm reliance on the protection of Divine Providence." The founders pledged their fidelity to the will of God and asked God to protect their liberty. They would continue to enact this covenant in the years to come in many later acts of Congress.

3. Plaintiff-Debtor's Juxtaposition
George Washington said in his Farewell Address that most people are not going to have virtue or good habits in the long run without religion. And what he meant by that can be recited very simply. As Jews and Christians understand it, religion is not just a cold law; it is a relationship with a Person—a Person who knows even your secret thoughts. So religion adds a personal motive to the idea of virtue. In addition to that, this Judge sees you even when you're alone, even with the doors closed. This is a Judge who knows whether or not you paint the bottom of the chair.

In parallel to the thinking of George Washington, Plaintiff-Debtor give thanks to God for releasing him from his tribulation, torments and for protecting him and never letting him fall victim to abductions or physical harm from the insecurity in Haiti. Just like the founding fathers of the United States, Plaintiff-Debtor made a `Covenant with GOD' by saying:

"Lord my God, you gave me this house. I acquired it with the sweat of my face, and, God, you enabled me to save money to establish my business in the United States and in Haiti. If it is your will that I lose the house and am ruined financially, let it be done. But, if it is not your will, help me by increasing my intelligence and comprehension exponentially to understand the civil and bankruptcy law, not for my pride or personal gain, but, so that I can continued to glorify your mercy and goodness unto me and do your will. Help me by giving justice according to your compassion, and help me to avoid the loss of my house."

In fact, the word of the 'Divine Providence' is Plaintiff-Debtor's source of help to overcome the stress and trauma that he had experienced as outline above. Throughout this struggle, then, now and tomorrow, Plaintiff-Debtor relies primarily on the scripture for guidance, comfort and healing for his trauma, not on a clinical psychologist evaluation or recommended treatment. Plaintiff-Debtor attributed his safe and sound escaped from Haiti and returned to the United States to his family as an act of Providence. Thus, without a doubt, Plaintiff-Debtor’s past unfortunate circumstances and events leading to now reveals that he could not have known of any probable cause of action as defined by the ‘principle of equitable tolling’.