“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
UNITED STATES BANKRUPTCY COURT OF DELAWARE
Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. (NCM) )
I. Motion to STRIKE and to Object of Trustee’s substitution for Non-Parties Witnesses
II. Motion To OBJECT Liquidating Trustee’s Motion to Squash Deposition of 10/01/08
III. Motion to COMPEL Deposition, To Produce Document & Assume Cost of Discoveries
IV. Motion to REVISE Scheduling Order to Reflect undue Delays
V. REQUEST FOR JUDICIAL NOTICE
"...to remain silent and indifferent is the greatest sin of all..."
- Elie Wiesel, a Holocaust victim and writer
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.”
- Statement by a Presidential Candidate
“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named New Century-Chase Home Finance, a rich man whose land is worth $400 billion in today‘s money; the other, Augustin, a farmer who land is worth $300 billion. One day, New Century-Chase Home Finance asked Augustin to give him his land, that he may have it for a vegetable garden. But, Augustin said to Century-Chase, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of New Century-Chase Home Finance, heard what Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Augustin‘s land. So, Jezebel wrote letters in New Century-Chase Home Finance’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Augustin. Then, issued a decree that Augustin’s land is now New Century-Chase Home Finance.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. New Century-Chase Home Finance take possession of Augustin’s land which he had refused to give. The sad part is that Augustin was forced off his land illegally and fraudulently. Augustin left with nothing and forced to flee from Jerusalem to a land called Virginia to start from scratch. Whereas, New Century-Chase Home Finance became more wealthy with the unwarranted possesion of Augustin’s land and hold $700 billion of assets as a result.
Questions? Why was Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
FUNDAMENTAL BASIS OF ARGUMENT
1. Rule 11 - Useful tool of the Court to restraint frivolous & abusive litigation such as delay, and obstruction of Judicial, administrative and consumer investigations and discovery.
Under the guise of a Motion to Squash, the Lawyers for the Liquidating Trust are presenting, to this court an ‘improper purpose’. At best, this motion to Squash can be strictly classified an improper purpose to cause delay or other improper objective that Consumer Creditor cannot decipher.
“The civil justice system in the United States depends on the willingness of both litigants and lawyers to try in good faith to comply with the rules established for the fair and efficient administration of justice. When those rules are manipulated or violated for purposes of delay, harassment or unfair advantage, the system breaks down…. My experience as a participant in and observer of civil litigation has convinced me that abuse of the judicial process… is widespread. Abuse of the judicial process occurs most often in connection with discovery. Unjustified demands for and refusals to provide discovery prolong litigation and drive up its costs. Fabrication and suppression of material facts are regrettably common occurrences, although lawyers and judges are often reluctant to admit it.” (Charles B. Renfrew, Discovery Sanctions: A Judicial Perspective, 67, CAL. L. REV. 264, 264-65 (1979)(citations omitted).”
2. Judge’s Order of June 24, 2008 was in effect prior his August 1, 2008 Order
a. Rebuttal of ¶ # 3,4 & 5 from Trustee’s motion
b. Extracted from August 20, 2008 Transcript, page 59 to 62
THE COURT: All right. Mr. Augustin, as the debtor has indicated in its pleadings, I must first address a threshold issue, and that is whether I should even get to the merits of any claim that you might have, because it was later field. And the standard I look to is the one that the debtor has described in its papers, and that is, I must consider the following factors. One, the danger of prejudice to the debtor, two, the length of the delay and its potential impact on judicial proceedings, three, the reason for the delay, including whether it was within the reasonable control of the movant, and four, whether the movant acted in good faith. There is no one factor that’s dispositive. Not necessarily all are to be considered. I look at those factors and I find, as you might have gleaned from my discussions with debtor’s counsel at the outset of this hearing that I don’t see much prejudice to the debtor in allowing the late claim. The reason for the delay and whether you acted in good faith, I would say against another backdrop might not carry a lot of weight with me, but it’s obvious that you have been aggressively pursuing this dispute whether it has merit or not. And it seems to me your positions and your multiple filings support the view that you certainly didn’t intend to pass up on an opportunity to make a claim knowing that you had one. So for those reasons on balance I will allow it. Now, the next question in my mind is whether, and we won’t reach the merits today, but the first question in my mind, Mr. Samis, I’ll direct to you, and that is, is this a matter that needs to proceed by adversary or is it a contested
matter?
MR. SAMIS: Well, Your Honor, I would say that given the rules that would govern an adversary proceeding and the rules that would govern a contested matter, I think this would be better, we would better be able to pursue the matters I think as a contested matter in the court case. I think that we can probably -- now that the issue of whether or not the claim was late filed is resolved, I think that the debtors can better and formally communicate with Mr. Augustin to reach a resolution at this point.
THE COURT: Well, let’s do this. Let’s put it on for statue in the August Omnibus hearing and, Mr. Augustin, if the matter’s not resolved by agreement before that time, you may participate by telephone, you will not need to appear personally for the hearing in August, which is which date?
MR. SAMIS: Your Honor, I would have to go back and check, but I can circulate it. August 20th, I believe, Your Honor, is that correct, at 2:30 p.m.
THE COURT: August 20th at 2:30. But if it’s not resolved at that point, my intention would be to enter a scheduling order not unlike what I would schedule in an adversary proceeding. I would also likely order mediation. Now, Mr. Augustin, what I want you to be aware of is, if the matter’s not resolved, you’re perfectly free to press your claim. Don’t take any remark of mine to be considered my advice to you that you settle. But if you decide to press forward and bring to me the merits of your claim against New Century, you will be required to comply with the requirements of the Bankruptcy Code, the bankruptcy rules, our local rules and any order that I enter governing the conduct of this litigation. And the fact that you choose to represent yourself will not excuse you from compliance with any of those requirements, and you need to understand this. So I’ll give Mr. Samis a chance to discuss with you whether you can resolve this matter after this hearing. If not, we’ll hear from you in August, we’ll set up a schedule for the taking of discovery and other things that are necessary to govern the resolution of this dispute.
3. Full Discoveries Rights Granted By Judge on August 20, 2008
Rebuttal for ¶ #9, #10, #12, #14, #15, #16, #17, #18, #19. Incidentally, Consumer Creditor did follow local rules in giving Trustee ‘reasonable time’ to produce witnesses and documents and that Consumer Creditor “will have all the rights that you would have had had this been commenced as an adversary proceeding“ quoted statement of Judge Kevin J. Carey.
Extracted from August 20, 2008 Transcript, page 69
“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --
THE COURT: Yeah. Well, the --
MR. AUGUSTIAN: -- let the Court know.
THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?
MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record. Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.
THE COURT: Well, you know where to find me.
MR. AUGUSTIAN: Okay.”
3. Assignee Liability rules render the holder of an assigned mortgage loan liable for the legal violations made in the origination of the loan. Liquidating Trustee is now in the shoe of New Century Mortgage.
4. Securitization of Mortgage Loan
Your Honor, five decades ago, Consumer Creditor could have asked only to depose just one party since one company was in charge for the full servicing of the loan. However, with the complexity of securitize instrument and the fact that servicing rights have changed hands, Consumer Creditor must served both old and new businesses or anyone/entity that came into contact with his mortgage loan (see figure a below) such as Brokers, originator, MERS, master servicer, sub-servicer, special servicer, trustee, seller, underwriter, underwriter’s due diligence contractor & others to bring forth information that will tend to lead to admissible evidence and have some bearing on this case. For a list of parties to be deposed, please see the parties that are listed on the certificate of service.

I. MOTION TO STRIKE & TO OBJECT To Trustee’s Motion to Squash
A motion to strike is defined as a request for a judge's order to eliminate all or a portion of the written Liquidating Trustee’s Motion on any one of several grounds. A motion to strike is applicable when a motion contains “redundant, immaterial, impertinent or scandalous” materials or legally insufficient defenses. Thus, Consumer Creditor object and move to strike those [p]ortions of his motion on paragraphs #11, #13, #21 to # 24 and any testimony on the part of the Trustee in reference to the Emergency Motion cannot be allowed since Counsel for the Liquidating Trust cannot substitute himself into the shoes of Non-Parties Ordinary Witness or speak in their names.
Trustee can’t testify. Trustee must produce witnesses. Trustee can’t testify for witnesses. Also, Consumer Creditor object to Trustee’s various objection classified as (“Objection”) to the Emergency Motion since Consumer Creditor is entitled as a matter of right to file motion to the Court for an Order or Permission to do something. Trustee cannot be allowed to give any testimony or speak on behalf of non-party witness. Trustee is not a witness, Trustee cannot testify”. Therefore, Consumer Creditor moves this Court to refrain Trustee to step into the shoe of non-party witnesses or speaking on their behalf.
II. MOTION TO OBJECT Liquidating Trustee’s Motion to Squash Deposition of 10/01/08
1. Prime Ordinary Witnesses
Robert K. Cole, Brad A. Morrice, Edward F. Gotschall and Patti M. Dodge are ordinary non-parties witnesses that served as officers and directors of a publicly-held company whose shares were registered with the SEC pursuant to the Exchange Act, traded on the New York Stock Exchange, and governed by the Federal securities laws. They each had a duty to disseminate information with respect to the Company’s business, operations, financial statements and internal controls. They also control the content of the press releases, SEC filings and other public statements issued by New Century.
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. Thus, the New Century Officers had the power to influence and control and did influence and control, directly or indirectly, the decision making of New Century, including the content of its financial statements and public statements. These Executives were each involved in drafting, producing, reviewing and/or disseminating the statements and set the company policy to its employees, business partners and its agents regarding underwriting and credit practices. Therefore, they are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.
III. Motion to COMPEL Deposition, To Produce Document & Assume Cost of Discoveries
At the hearing on August 20, 2008, The Honorable Judge Kevin J. Carey said that Consumer Creditor “will have all the rights that you would have had had this been commenced as an adversary proceeding”. Pursuant to Fed.R.Civ.P., Rule 37(a), Consumer Creditor requests an order compelling Trustee to produce witnesses for deposition questioning at the expense of New Century Mortgage and/or Liquidating Trust. Consumer Creditor requests an award of costs to cover all future deposition questioning due to undue delayed since he is not requesting objectionable, private, privileged or otherwise confidential information.
The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Thus, the Court must compel Counsel to produce requested documents and assumed full cost of present and future discoveries.
Since Trustee is opposing the deposition of ‘designated deponents & Debtors’ former officers’ and is in control of facts peculiarly within Debtor's knowledge (Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them), as is the case in the instant proceedings, and it is not asserting a privilege or immunity from the discovery request, the burden of proof must necessarily shift from the proponent of depostion to the opponent of deposition.
If Trustee is claiming the seeking of deposition as privilege, he must supply the court with sufficient information to enable the court to determine that each element of the privilege is satisfied. Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994); F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980). A failure of proof as to any element of the privilege causes the claim of privilege to fail. Kelling, 157 F.R.D. at 497; Bulk Lift Intern., Inc. v. Flexcon & Systems, Inc., 122 F.R.D. 482, 492 (W.D.La. 1988).
IV. MOTION TO REVISE Scheduling Order to Reflect undue Delays
Due to the unforeseen circumstances and realization that Consumer Creditor will need documents and deposition from many individuals and third party witnesses, the schedule of discovery should reflect that reality.
V. REQUEST FOR JUDICIAL NOTICE
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof. A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
“Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. (1) Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. (2) The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. (3) Allen claimed he saw Norris and then Armstrong strike Metzker in the head. (4) The prosecution used Allen's eyewitness testimony to convict Norris. (5)
During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. (6) Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. (7) At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. (8) Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. (9) Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client. (10)
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”
Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice of the underlying causes of mortgage fraud and loose underwritings led partly for 1) the 451-page (too many pages to include as exhibits, but it is online at congress website & common knowledge to all americans) Emergency Economic Stabilization Act that grants the Treasury secretary unprecedented authority to buy up to $700 billion of troubled assets from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up.
2) “President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits.”
Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis.
3) Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates from New Century Mortgage, in reality, it was a predatory loan, similar to what Countrywide had issued and Bank of America offered to settle with many states’ Attorneys General. Here is a copy of the Wall Street Journal article:
“OCTOBER 6, 2008, 4:05 P.M. ET Bank of America in Settlement Worth Over $8 Billion , Nearly 400,000 Borrowers Covered in Deal With State Attorneys General Over Risky Loans Originated by Countrywide Financial By RUTH SIMON.
In a sweeping deal that could be worth more than $8.4 billion, Bank of America Corp. has agreed to settle claims brought by state attorneys general regarding certain risky loans originated by Countrywide Financial Corp. The bank agreed to settle claims over risky loans originated by Countrywide Financial.
The deal will cover nearly 400,000 borrowers, Bank of America announced on Monday. It will apply to borrowers who took out subprime loans with adjustable or fixed interest rates as well as those with option adjustable-rate mortgages that are serviced by Countrywide, which was acquired by Bank of America on July 1. Option adjustable-rate mortgages allow borrowers to make a minimum payment that may not even cover the interest due and can lead to a rising loan balance. The cost of the program will be shared by Bank of America and investors who own securities composed of mortgages originated by Countrywide or by third parties who sold those loans to Countrywide. The eligible mortgages were originated prior to Dec. 31, 2007.
"With this settlement, we have the first-of-its-kind mandatory loan modification program," said Illinois Attorney General Lisa Madigan, who had filed a civil lawsuit alleging that Countrywide engaged in unfair and deceptive practices. "This program is going to help homeowners stay in their homes, which ultimately helps investors," she added. "It will shore up communities and therefore it will help with the economy." Under the terms of the deal, Bank of America has agreed to, where possible, modify the terms of these loans where borrowers are seriously delinquent or likely to become so after their interest rate or monthly payment resets. Bank of America will first try to refinance borrowers into government-backed loans under the federal Hope for Homeowners program, which will generally require a reduction in the principal of the borrower's loan.
Another option is to reduce the borrower's interest rate to make the loan more affordable. In some cases, borrowers' interest rates may be reduced to as low as 2.5%, then rise in a stepwise fashion over time, a Bank of America spokesman said. "We are seeking to put customers into loan modifications that are affordable and sustainable," the spokesman said. Under the program, borrowers' mortgage-related payments shouldn't exceed 34% of their monthly income. The modifications will be offered to borrowers who live in their homes and not to investors.
For borrowers with option adjustable-rate mortgages, Bank of America will reduce loan amounts so that borrowers have as much equity, if not more, than when they took out the option ARM, a Bank of America spokesman said. Bank of America won't charge borrowers for modifying the loans and will waive any prepayment penalties for those with option ARMs. The value of the modification program is as much as $8.4 billion, according to the Bank of America spokesman. The costs of the program "have already been estimated and accounted for" by Bank of America as part of its acquisition of Countrywide, the spokesman added.
The Countrywide settlement is likely to become the largest "predatory lending" settlement in history, said California Attorney General Edmund G. Brown Jr. in a statement. The agreement would dwarf the nationwide $484 million settlement with Household Finance Corp. in 2002, he added. Countrywide has faced civil lawsuits from a number of states, including California, Florida and Illinois. Those three states played a key role in negotiating the settlement, a Bank of America spokesman said. The Countrywide settlement "will be a good framework" for negotiations with other mortgage companies, said Florida Attorney General Bill McCollum. Mr. McCollum added that the precise details of the program are still being finalized.
In some cases, changing the terms of the loan will require the approval of investors who hold securities made up of loans that are serviced by Countrywide. Bank of America "will continue to work with investors" to get approval for the modifications, the Bank of America spokesman said. "We believe this creates a win-win for investors and for customers." Bank of America has also set aside $150 million to provide relief for borrowers in foreclosure by, in many cases, refunding portions of closing costs and fees associated with the loan. Another $70 million has been put aside to provide financial assistance to borrowers who will lose their homes to "help them get on their feet and leave the mortgage premises in good condition," a Bank of America spokesman said. While loan modifications will be offered nationally, the additional $220 million will be made available to residents of states that ultimately sign an agreement with Bank of America.
In addition to California, Florida and Illinois, attorneys general in a number of other states, including Arizona, Connecticut, Iowa, Michigan, North Carolina, Texas and Washington, are also expected to sign the agreement, the Bank of America spokesman said. Bank of America will begin sending offers to borrowers who qualify for a modification by Dec. 1. Bank of America won't initiate or advance foreclosure sales for borrowers who are likely to qualify for a program until a decision has been made regarding borrowers' eligibility.”
CONCLUSION
Counsel for New Century Mortgage, the Liquidating Trust and others in this case are not without legal objections and legal technicalities so as to avoid the litigation on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities in accordance to their Attorney’s Oath to support the Constitution of the United States:
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”
Relief Requested
As eloquently stated by one of the presidential candidate:
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.”
Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of Debtor, Liquidating Trust and potential ordinary parties or non-parties witnesses. Consumer Creditor is seeking an Order from this Court to do what the law of discovery empower him to accomplish in gathering information that will tend to lead to admissible evidence by using the tool of deposition beyond the 100 miles.
Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection). Although not a lawyer or pretending to be one, Consumer Creditor is seeking an Order from this Court to allow him to do what the [law of discovery empower him to accomplish in gathering information that will tend to lead to admissible evidence] by:
1. Granting the Motion to Strike and to Object to the Self-Substitution of Liquating Trustee for Non-Parties Witness In “OBJECTING to the Emergency Motion”
2. Granting the Motion To Object to Liquidating Trustee’s Motion to Squash Deposition
3. Granting the Motion to Compel Witnesses to Deposition & To Assume Full Cost of all future discoveries
4. Granting the Motion to Revise Scheduling Order to Reflect undue Delays
Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:
''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617)202-8069
Date: October 10, 2008
Attorneys and Parties Served
Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400
Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy
United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900
U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491
Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423
Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered
Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.
Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered
Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.
Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered
Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered
Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.
Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.
R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.
Ameriquest Mortgage Company
John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered
Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered
Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.
DanversBank
Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered
Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered
Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.
Samuel P. Reef
Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494.
Alen H. Segal
Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166 Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197
Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274.
Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173
Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.
Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.
Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180
Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.
Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.
Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.
Samuel P. Reef
(Closing Attorney 2nd Refi)
4 Main Street
Brockton, MA 02301
508-559-0300
Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this Emergency Motion was mailed to the parties and attorneys above.

Pierre R. Augustin, Pro Se, 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 Motion filed herein and knowing the contents thereof have found that the allegations of fact set forth therein are true of my own personal knowledge, except as to those allegations based on information and belief which I believe to be true.
Signed under the penalties of perjury this ________day of ____________2008.
X ________________________________
STATE OF ________________________COUNTY OF _____________________________
On this _____ day of __________, 2008, 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)
UNITED STATES BANKRUPTCY COURT OF DELAWARE
Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. )
AFFIDAVIT / AFFIRMATION
I, Pierre-Richard Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the Consumer Creditor and a Party In Interest in this action, and I respectfully submit this affidavit/affirmation.
2) I have personal knowledge of facts which bear on this Motion.
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:_______________________________________________________
Pierre-Richard Augustin, Pro Se, Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617) 202-8069
STATE OF _______________________________COUNTY OF_________________________
On this _____ day of __________, 2008, 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)
--------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Sunday, November 9, 2008
Saturday, November 8, 2008
Request for Judicial Notice
“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
REQUEST FOR JUDICIAL NOTICE In Support of Request
for Emergency Motion to Issue Subpoenas Duces Tecum
FUNDAMENTAL BASIS OF ARGUMENT
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Honorable and Distinguish CHIEF JUDGE, May The Lord Almighty Bless You For Being A Dedicated Public Servant And Grant You More Wisdom, Knowledge And Understanding To Make Wiser Decisions On Behalf Of The Citizen Of The Greatest Nation On Earth, The United States Of America.
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof.
Your Honor, Extraordinary and Swift measures by our Political and Public Policy makers with the enacted $700 billion bill bailout for Wall Street on Friday, October 3, 2008 demands an ‘Equal Extraordinary, Unprecedented and
Exceptional’ ruling for [E]quality and [F]airness. Equally alarming are the consumer protection laws that evolved prior the widespread securitization of subprime mortgages are antiquated and not reflective of the current commercial transactions and [Present Tsunami of Financial Crisis].
“I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” - Elie Wiesel, a Holocaust victim and writer
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.” - Statement by a Presidential Candidate
“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)
A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court (common knowledge throughout the world of a $700 billion bailout law to financial institutions in the United States) or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Expert testimonies, public speeches by the President of the United States & member of both Houses of Congress regarding the root causes of bailout or see the ‘Statement by the Presidential Candidate Above‘)."
1. STANDING
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, “the Consumer Creditor must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.” Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm’n, 926 F. 2d 573, 576 (6th Cir. 1991)).
To satisfy the requirements of Article III of the United States Constitution, the Consumer Creditor must show he has personally suffered some actual injury as a result of the illegal conduct of the parties in his case by depriving him of his property rights. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
A person has standing if the Court order “diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights.” Williams v. Marlar (In re Marlar), 267 F.3d 749, 753 n.1 (8th Cir. 2001). The mere loss of a statutory right to disclosure is an injury that gives Consumer Creditor standing for Article III purposes (DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000).
2. JURISDICTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Personal jurisdiction is lawfully exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a jurisdiction and has had notice and opportunity (is in receipt of service and has a copy of the petition, claim, or complaint). If these elements are complete, personal jurisdiction CANNOT BE DENIED.
Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events other than sufficient pleadings. Also, the Federal Reserve Act that allows banking is not a state issue as well as, but a Federal issue which falls within the jurisdiction of the District Court.
3. REFLECTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Three years ago, unable to afford and to obtain legal representation to prevent the lost of his primary residence in Lowell, Massachusetts, Consumer Creditor ventured in the Federal Court system in search of [R]edress and [F]airness. Consumer Creditor has relied on the help of the Almighty to grant him wisdom, knowledge, understanding to quickly grasp legal concepts in order to articulate his written legal argument to the best of his given abilities.
In Picking, the Consumer Creditors civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a Consumer Creditor pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe Consumer Creditors pleading without regard to technicalities. Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals.
In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965), it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." From this vantage point, courts are reluctant to dismiss complaints unless it appears the Consumer Creditor can prove no set of facts in support of his claim which would entitle him to relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint requires a less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said Justice Black in Conley v. Gibson . 355 U.S. 41 at 48(1957)
The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice."
Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates (2/28) from New Century Mortgage. In reality, it was a predatory loan. It is similar to what Countrywide had issued to borrowers nationwide and prompted Bank of America to settle with many states’ Attorneys General. (See Exhibit for the full story)
Based on the cited cases above, NEW Relevant Evidences from the root causes of the current Financial Crisis, recent settlement by Bank Of America with at least 10 Attorney Generals on risky mortgage loans similar to that given to Consumer Creditor and the law review article on ‘Predatory Structured Finance‘ provided in the exhibits, May the Court grant the request for issuing Subpoena Duces Tecum to depose the non-parties witnesses within the Court jurisdiction.
“Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.” - Christopher A. Boyko, U. S. District Judge
4. PRECENDENT CASE OF JUDICIAL NOTICE
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“Abraham Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. Allen claimed he saw Norris and then Armstrong strike Metzker in the head. The prosecution used Allen's eyewitness testimony to convict Norris.
During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client.
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”
Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice that the underlying causes of mortgage fraud and loose underwritings were the root causes of massive foreclosures today that ultimately led to the historical and unprecedented Emergency Economic Stabilization Act of 2008 that grants the Treasury Secretary unprecedented authority to buy up to $700 billion of Toxic Assets (bad & risky otherwise predatory mortgage loans made to borrowers in the U.S. (see article entitled ‘Predatory Structured Finance in Exhibits‘) from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up both in the U.S. and abroad.
5. EMERGENCY ECONOMIC RECOVERY BILL OF 2008
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits” from $100,000 to $250,000.
Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis. According to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that:
"Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Consumer Creditor has been arguing in his pleadings and motions before the Federal Courts.
CONCLUSION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:
''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Counsels in this case are not without legal objections and legal technicalities so as to avoid the litigation based on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities and irrefutable common knowledge of providing predatory loans to borrowers such as Consumer Creditor in accordance to their Attorney’s Oath to support the Constitution of the United States:
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”
According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.’’ It could also be argued that to dismiss a civil rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violation of procedural due process as it would deprive a pro-se litigant of equal protection of the law vis-a-vis a party who is represented by counsel.
Consumer Creditor recognizes that he is facing a milestone and an uphill battle against lawyers that are well schooled with an in-depth knowledge of the law, influences, technical maneuvers and equipped with various inside scoop of courtroom strategies that he lacks. Although not a lawyer or pretending to be one, Consumer Creditor need not specify specific statutes or regulations that entitle him to relief; this court should examine this motion on any possible legal theory or as the court judge just to bring about a fair and equitable resolution (Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
In a fair system, victory should go to a party who has the better case, not the better representation. Mr. Augustin (Consumer Creditor) is a victim of predatory lending and civil conspiracy of mortgage fraud. The financial institutions ultimately deprived him of his property rights with an illegal and unwarranted foreclosure to name a few violations. To further support his argument, Consumer Creditor has submitted as ‘Documented Evidences’ a law review article entitled “Predatory Structured Finance” by Christopher L. Peterson published in the Cardozo Law Review (see Exhibit).
1. Request To Obtain Subpoena Duces Tecum Based On The Merits
Likewise, “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 this motion based on its merits even if procedural errors are made. Thus, the Court must give this Consumer Creditor, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).
Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of the Non-Parties Witnesses. Consumer Creditor is seeking the Subpoenas from this Court to operate within the confinement of the law in litigating his claims fully based on the merits by seeking information likely to lead to admissible evidences (See Exhibits).
Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection).
[“In federal diversity actions, state law governs substantive issues and federal law governs procedural issues.” Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d 286, 289 (6 Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6 Cir. 1993). Consumer Creditor’s, “Judge, you just don’t understand how things work,” argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property. There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution’s favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit — to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate” (Christopher A. Boyko, United States District Judge).
In retrospect, Martin Luther King could not have said it better:
“But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. For at the real heart of battle for equality is a deep seated belief in the democratic process.“
[E]quality and [F]airness cannot co-exist if Consumer Creditor is not allowed to FULLY litigate his claims based on the merit as a result of the NEW Relevant Evidences submitted as possible admissible evidences. Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Society is composed of individuals. In the name of society’s public interest and good, protection of Consumer Creditor’s rights arguably becomes part of the public interest and good which in turn benefits some members of the population who were given risky loans and harms no members of society in the process.
Lastly, Consumer Creditor stands before this court with a sense of sadness for the ongoing foreclosure and financial crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, public schools, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
Thank you for taking ‘Judicial Notice’ of these NEW relevant evidences submitted and May the Honorable Chief Judge grant the request for the Subpoenas Duces Tecum as the Court deems just and proper. May God Bless you, America and our leaders.
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor, 3941 Persimmon Drive, #102
Fairfax, VA 22031 (617)202-8069
----------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
REQUEST FOR JUDICIAL NOTICE In Support of Request
for Emergency Motion to Issue Subpoenas Duces Tecum
FUNDAMENTAL BASIS OF ARGUMENT
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Honorable and Distinguish CHIEF JUDGE, May The Lord Almighty Bless You For Being A Dedicated Public Servant And Grant You More Wisdom, Knowledge And Understanding To Make Wiser Decisions On Behalf Of The Citizen Of The Greatest Nation On Earth, The United States Of America.
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof.
Your Honor, Extraordinary and Swift measures by our Political and Public Policy makers with the enacted $700 billion bill bailout for Wall Street on Friday, October 3, 2008 demands an ‘Equal Extraordinary, Unprecedented and
Exceptional’ ruling for [E]quality and [F]airness. Equally alarming are the consumer protection laws that evolved prior the widespread securitization of subprime mortgages are antiquated and not reflective of the current commercial transactions and [Present Tsunami of Financial Crisis].
“I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” - Elie Wiesel, a Holocaust victim and writer
“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.” - Statement by a Presidential Candidate
“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)
A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court (common knowledge throughout the world of a $700 billion bailout law to financial institutions in the United States) or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Expert testimonies, public speeches by the President of the United States & member of both Houses of Congress regarding the root causes of bailout or see the ‘Statement by the Presidential Candidate Above‘)."
1. STANDING
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, “the Consumer Creditor must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.” Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm’n, 926 F. 2d 573, 576 (6th Cir. 1991)).
To satisfy the requirements of Article III of the United States Constitution, the Consumer Creditor must show he has personally suffered some actual injury as a result of the illegal conduct of the parties in his case by depriving him of his property rights. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
A person has standing if the Court order “diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights.” Williams v. Marlar (In re Marlar), 267 F.3d 749, 753 n.1 (8th Cir. 2001). The mere loss of a statutory right to disclosure is an injury that gives Consumer Creditor standing for Article III purposes (DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000).
2. JURISDICTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Personal jurisdiction is lawfully exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a jurisdiction and has had notice and opportunity (is in receipt of service and has a copy of the petition, claim, or complaint). If these elements are complete, personal jurisdiction CANNOT BE DENIED.
Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events other than sufficient pleadings. Also, the Federal Reserve Act that allows banking is not a state issue as well as, but a Federal issue which falls within the jurisdiction of the District Court.
3. REFLECTION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Three years ago, unable to afford and to obtain legal representation to prevent the lost of his primary residence in Lowell, Massachusetts, Consumer Creditor ventured in the Federal Court system in search of [R]edress and [F]airness. Consumer Creditor has relied on the help of the Almighty to grant him wisdom, knowledge, understanding to quickly grasp legal concepts in order to articulate his written legal argument to the best of his given abilities.
In Picking, the Consumer Creditors civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a Consumer Creditor pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe Consumer Creditors pleading without regard to technicalities. Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals.
In Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965), it was held that in a "motion to dismiss, the material allegations of the complaint are taken as admitted." From this vantage point, courts are reluctant to dismiss complaints unless it appears the Consumer Creditor can prove no set of facts in support of his claim which would entitle him to relief (see Conlev vs. Gibson , 355 U.S. 41(1957).
In Puckett v. Cox , it was held that a pro-se complaint requires a less stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth Circuit USCA) said Justice Black in Conley v. Gibson . 355 U.S. 41 at 48(1957)
The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice."
Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates (2/28) from New Century Mortgage. In reality, it was a predatory loan. It is similar to what Countrywide had issued to borrowers nationwide and prompted Bank of America to settle with many states’ Attorneys General. (See Exhibit for the full story)
Based on the cited cases above, NEW Relevant Evidences from the root causes of the current Financial Crisis, recent settlement by Bank Of America with at least 10 Attorney Generals on risky mortgage loans similar to that given to Consumer Creditor and the law review article on ‘Predatory Structured Finance‘ provided in the exhibits, May the Court grant the request for issuing Subpoena Duces Tecum to depose the non-parties witnesses within the Court jurisdiction.
“Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.” - Christopher A. Boyko, U. S. District Judge
4. PRECENDENT CASE OF JUDICIAL NOTICE
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“Abraham Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. Allen claimed he saw Norris and then Armstrong strike Metzker in the head. The prosecution used Allen's eyewitness testimony to convict Norris.
During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client.
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”
Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice that the underlying causes of mortgage fraud and loose underwritings were the root causes of massive foreclosures today that ultimately led to the historical and unprecedented Emergency Economic Stabilization Act of 2008 that grants the Treasury Secretary unprecedented authority to buy up to $700 billion of Toxic Assets (bad & risky otherwise predatory mortgage loans made to borrowers in the U.S. (see article entitled ‘Predatory Structured Finance in Exhibits‘) from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up both in the U.S. and abroad.
5. EMERGENCY ECONOMIC RECOVERY BILL OF 2008
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
“President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits” from $100,000 to $250,000.
Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis. According to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that:
"Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Consumer Creditor has been arguing in his pleadings and motions before the Federal Courts.
CONCLUSION
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:
''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Counsels in this case are not without legal objections and legal technicalities so as to avoid the litigation based on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities and irrefutable common knowledge of providing predatory loans to borrowers such as Consumer Creditor in accordance to their Attorney’s Oath to support the Constitution of the United States:
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”
According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice." The Court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.’’ It could also be argued that to dismiss a civil rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violation of procedural due process as it would deprive a pro-se litigant of equal protection of the law vis-a-vis a party who is represented by counsel.
Consumer Creditor recognizes that he is facing a milestone and an uphill battle against lawyers that are well schooled with an in-depth knowledge of the law, influences, technical maneuvers and equipped with various inside scoop of courtroom strategies that he lacks. Although not a lawyer or pretending to be one, Consumer Creditor need not specify specific statutes or regulations that entitle him to relief; this court should examine this motion on any possible legal theory or as the court judge just to bring about a fair and equitable resolution (Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
In a fair system, victory should go to a party who has the better case, not the better representation. Mr. Augustin (Consumer Creditor) is a victim of predatory lending and civil conspiracy of mortgage fraud. The financial institutions ultimately deprived him of his property rights with an illegal and unwarranted foreclosure to name a few violations. To further support his argument, Consumer Creditor has submitted as ‘Documented Evidences’ a law review article entitled “Predatory Structured Finance” by Christopher L. Peterson published in the Cardozo Law Review (see Exhibit).
1. Request To Obtain Subpoena Duces Tecum Based On The Merits
Likewise, “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 this motion based on its merits even if procedural errors are made. Thus, the Court must give this Consumer Creditor, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).
Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of the Non-Parties Witnesses. Consumer Creditor is seeking the Subpoenas from this Court to operate within the confinement of the law in litigating his claims fully based on the merits by seeking information likely to lead to admissible evidences (See Exhibits).
Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection).
[“In federal diversity actions, state law governs substantive issues and federal law governs procedural issues.” Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d 286, 289 (6 Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6 Cir. 1993). Consumer Creditor’s, “Judge, you just don’t understand how things work,” argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, “how do I save my home,” or “if I have to give it up, I’ll simply leave and find somewhere else to live.”
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property. There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution’s favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit — to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate” (Christopher A. Boyko, United States District Judge).
In retrospect, Martin Luther King could not have said it better:
“But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. For at the real heart of battle for equality is a deep seated belief in the democratic process.“
[E]quality and [F]airness cannot co-exist if Consumer Creditor is not allowed to FULLY litigate his claims based on the merit as a result of the NEW Relevant Evidences submitted as possible admissible evidences. Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Society is composed of individuals. In the name of society’s public interest and good, protection of Consumer Creditor’s rights arguably becomes part of the public interest and good which in turn benefits some members of the population who were given risky loans and harms no members of society in the process.
Lastly, Consumer Creditor stands before this court with a sense of sadness for the ongoing foreclosure and financial crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, public schools, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
Thank you for taking ‘Judicial Notice’ of these NEW relevant evidences submitted and May the Honorable Chief Judge grant the request for the Subpoenas Duces Tecum as the Court deems just and proper. May God Bless you, America and our leaders.
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor, 3941 Persimmon Drive, #102
Fairfax, VA 22031 (617)202-8069
----------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Letter To Preserve Information
“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
--------------------------------
Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 703-584-5998, Email: hdmhos@aol.com
October 23, 2008
Attorney David W. Carickhoff, Jr
Blank Rome LLP, Chase Manhattan Centre, 1201 Market Street, Suite 800, Wilmington, DE 19801 Records Custodian for New Century TRS Holding, Inc. & Attorney, Christopher M. Samis, Richards, Layton & Finger, P.A. , 920 N. King Street, Wilmington, DE 19801
CERTIFIED MAIL: 7007 3020 0002 3324 9198
Re: New Century TRS Holding, Inc., New Century Liquidating Trustee v. Pierre R. Augustin, Pro Se, Case #: 07-10416, Chapter 11
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Dear Attorney Carickhoff, Jr., Records Custodian for New Century, Attorneys for Non-Parties & Non-Parties Witnesses (see list of parties):
The purpose of this letter is to notify you that you may have in your possession, or under your control, certain documents and information, including electronically or digitally stored information relevant to the discovery process of the case above. In addition, you, agents, employees & Counsels for Non-Parties Witnesses and Non-Parties Witnesses themselves may have knowledge of facts relevant to matters likely to lead to admissible evidence.
The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Please keep in mind of the following:
Federal Rule 26(a)(1)(E), Federal Rule 26(a)(2), Federal Rule 26(a)(3)
Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
“When discovery rights are trampled, prejudice must be presumed”
Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003)
The filing of this letter with the Federal Courts Will Serve
As Proof of Notification to All Counsels for the Non-Parties Witnesses
and on Non-Parties Witness themselves.
1. BUSINESS RECORDS -- MISSING EVIDENCE -- SPOLIATION
“Spoliation” can be defined as the failure to preserve evidence that is relevant to pending or potential litigation (Jimenez-Sanchez v. Carribean Restaurants, L.L.C, 483 Fed.Supp.2d 140 (D. Puerto Rico 2007)). The actual keeper or custodian of the evidence is irrelevant for discovery purposes. Counsel for New Century TRS Holding, Inc., handing files and documents to New Century Liquidating Trustee’s Counsel as in this case does not shield otherwise discoverable ‘REAL’ evidence. Moreover, New Century Mortgage Corporation had a duty to preserve evidence. Thus, New Century Mortgage Corporation should have known that evidence may be relevant to future litigation as a result of Mr. Augustin’s civil suit (06-10368) and Bankruptcy matter (05-46957).
Because preservation of documents and availability for production are essential to the orderly and expeditious disposition of litigation, the inability to produce documents impedes the litigation process and merits sanctions (See in re Prudential Insurance Company of America Sales Practice Litig., 169 F.R.D. 598, 36 FED.R.Serv.3d 767 (D.N.J. 1997)). As far as electronic discovery, the producing party is obligated to search available electronic systems for the information demanded in discovery. The willful failure to comply with a discovery demand should be construed as an intentional failure as distinguished from involuntary noncompliance; no wrongful intent need be shown to impose discovery sanctions (See Smith v. City of New York, 388 Fed.Supp.2d 179 (S.D.N.Y., 2005)(Sanctions may be imposed for both intentional and negligent destruction of evidence)(Martinez v. Abbott Laboratories, 146 S.W.3d 260 (Tex. App. 2004).
The duty to preserve evidence arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim)(Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D., Tenn., 2005). Under the rule generally governing discovery, a party must not destroy unique, relevant evidence that might be useful to Consumer Creditor and this includes any document made by an individual likely to have discoverable information that the disclosing party may use to support its claim or defenses. The duty to preserve evidence, set forth in the rule that generally governs discovery, extends to all relevant documents from the time the trigger date passes, and continues thereafter.
If documents sought during discovery are destroyed or cannot be located, then that party must provide an explanation for the disappearance of the evidence. There are several factors that the court should utilize in determining whether or not to impose sanctions: [a] - A party destroys, [b] - discoverable matter, [c] - which that party knew or should have known and [d] - was relevant to pending, imminent or reasonably foreseeable litigation.
The following additional factors are considered: [1] - The degree of actual prejudice to the demanding party, [2]-The amount of interference with the judicial process, [3] - The culpability of the responding party, and [4] - Whether or not the responding party was forewarned about the sanctions for noncompliance.
A party has a duty to preserve evidence when that party is placed on notice that evidence is relevant to the subject litigation or when the party should have known that evidence may be relevant to future litigation. One remedy is the so-called “Missing Document Charge,” wherein the jury is specifically informed about the missing document and is told that it may infer that the missing evidence was most unfavorable to the spoliator. See Think Pink, Inc. v. Rim, Inc., 798 N.Y.S.2d 413 (N.Y.A.D., 1 Dept., 2005). Conclusively, if document are reported missing and cannot be located by the opposing counsels, parties and non-parties witnesses, Consumer Creditor will simply infer that the missing evidence was most unfavorable to them.
2. NOTICE TO PRESERVE DOCUMENTS
Pursuant to a duty imposed by law, This Notice and the applicable court rules require the preservation of all information from your Company’s computers and computer storage systems (including tapes, drives, CD’s and DVD’s), regardless of location, relating to this matter. This includes, but is not limited to, all computer files, e-mail and other electronic communications, databases, word processing documents, PDF’s, spreadsheets, calendars, telephone logs, contact information, Internet usage files, and network access information.
For purposes of this notice, the term “electronic information” includes, but is not limited to, all text files, word processing documents, presentation files such as PowerPoint, spreadsheets, e-mail files and information concerning e-mail files (including logs of e-mail, header information, and deleted files), Internet history files and preferences, graphical files in any format, databases, calendar and scheduling information, telephone logs, contact managers, computer activity logs, and all file fragments and backup files containing electronic data.
Upon receipt of this notice, you are prohibited from destroying, erasing, or over-writing any documents, emails, or other writings that relate to the lawsuit, regardless of their physical form, type or date. Extra care must be taken for electronic writings, which can be erased by the mere storage of new data. Your client should preserve and not destroy all passwords, decryption procedures, network access codes, ID names, tutorials, written instructions, decompression or reconstruction software, in addition to all other information necessary to access, view and, if necessary, reconstruct the electronic data that we will request through discovery.
You are under a legal obligation to preserve, maintain, and protect all potential relevant evidence, including electronic evidence. The failure to preserve and retain the electronic data as outlined in this notice constitutes a spoliation of evidence and may subject you to legal claims for damages in addition to evidentiary and monetary sanctions.
3. INITIAL “REQUIRED OR MANDATORY DISCLOSURES” REMINDER - [F.R.C.P. 26(a)]
According to the United States Supreme Court, the purpose behind Rule 37 of the Federal Rules of Civil Procedure was to protect the courts and opposing parties from “delaying or harassing tactics during the discovery process (Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999)). An attorney filing a responsive discovery pleading on behalf of a client must certify that he or she made a reasonable effort to see to it that the client has provided all of the information requested. See Poole v. Textron, 192 F.R.D. 494 (D.Md. 2000) and Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997).
Once a motion has been filed, the opposing party may not necessarily be able to avoid its consequences, even if he or she files a late response to your discovery requests. See Greenbriar Homes, Inc. v. Builders Insurance, 615 S.E.2d 191, 273 Ga. App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless, required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.
In accordance with Rule 26(a)(1) of the Federal Rules of Civil Procedure, Consumer Creditor is reminding Counsels for New Century TRS Holding, Inc. & New Century Liquidating Trustee to provide their mandatory disclosure as follows:
This Is A Reminder To Provide ‘Initial Mandatory Disclosures’ From Previous Notice To Produce
1. In Exhibit 1, New Century Mortgage denied the mortgage application on January 22, 2004.
Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
2. In Exhibit 2, New Century Mortgage denied the mortgage application on March 9, 2004. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
3. In Exhibit 3, Commonwealth Land Title Insurance Company (Non-Party) reported on March 29, 2004 that the title was clear for closing. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
4. In Exhibit 4, Consumer Creditor and a Party In Interest was issued a mortgage. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
In accordance to FRCP 26(a)(1)(A), you must voluntarily disclose additional names, addresses and telephone numbers of each individual & non-parties likely to have discoverable information. The disclosure must also clearly indicate “The subjects of the information” of each these individuals knows, their title, company affiliation, copy of their job description and to whom they report at their respective companies.
4. FULL DISCOVERIES RIGHTS GRANTED By Judge Kevin J. Carey on August 20, 2008, Extracted from August 20, 2008 Transcript, page 69
“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --
THE COURT: Yeah. Well, the --
MR. AUGUSTIAN: -- let the Court know.
THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?
MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record.
Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.
5. NON-PARTIES ORDINARY WITNESSES
Please review the certificate of service for the complete lists of non-parties ordinary witnesses and their attorneys in the above matter. Non Parties Witnesses (someone and companies) are not a party in this matter but the records they hold have some bearing on his claims and New Century Mortgage Corporation had transactions with the non-parties in relation to Consumer Creditor’s mortgage and business loan.
Rule 34 of the Federal Rules of Civil Procedure, which provides that “any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the request or’s behalf, to inspect and copy, any designated docu ments (including writings, drawings, graphs, charts, photographs, phono records, and other data compila tions from which information can be obtained, trans lated, if necessary, by the respondent through detec tion devices into reasonably usable form) ...” [Emphasis supplied]. Rule 1001(1) of the Federal Rules of Evidence provides: “Writings” and “recordings” consist of letters, words or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation [Emphasis supplied]. Therefore, Non-Parties Witnesses are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.
6. NOTICE TO REQUEST ‘RAW FACTS & REAL EVIDENCE’ from All Counsels of Non-Parties & Non-Parties Witnesses
Now the time has come, in view of the financial crisis, for the opposing Counsels to move behind the legal technicalities and abide by their oath for due diligences…
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God”
… because the $700 billion bailout to Financial Institutions on Wall Street by our Political Leaders and Public Officials resulted out from poor mortgage underwriting practices encouraged by the banks involved in this matter.
Reflectively, Consumer Creditor stands before the opposing Counsels with a sense of sadness for the ongoing foreclosure crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
The timing of these economical, financial and operative facts mentioned above are intertwined with Consumer Creditor’s matter and are always considered fair game for discoveries. So too are the legal theories and defenses of the action along with all real evidence that any party has obtain or discover (Myers v. City of Highland Village, 212 F.R.D. 324 (E.D. Tex. 2003). The scope of permissible discovery under the Federal Rules of Civil Procedure as with all of its state counterparts is very broad. Rule 26(b)(1) specifically permits discovery of “any matter, not privileged, which is relevant” with respect to any “claim” or “defense.”
The subsection then takes the trouble to list certain examples, such as “books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” If there is any point or purpose at all to the discovery process, it must enable Consumer Creditor’s access to those raw facts and pieces of “hard evidence” that form the underlying basis for the subject matter. These are the one-of-a-kind materials and information that the court have always make available through discovery.
(Extract from the August 20, 2008 Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them)
Experts who are to testify and who also provide analysis, guidance, reports and opinions are witnesses nonetheless. An expert may wear the hat of a “consultant,” but his status as a testifying witness trumps the consultant status. In particular, as a testifying expert, he is certainly subject to discovery. Rule 26(a)(2)(B) mandates both the preparation and disclosure of a written signed report. According to that rule, the report:
“... shall contain a com plete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”
The Counsels should not use the Work Product Doctrine as a device for hiding facts or evidence that are discoverable. Those hoping to erect a shield for such information often mix the hard evidence with work product materials, or try to mis-characterize such evidence as work product United States v. Dentsply Int’l, 187 F.R.D. 152 (D.Del. 1999); United States v. Frederick, 182 F.3d 496 (7th Cir. Wis. 1999); Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626 (D.Kan. 1999). Common sense dictates that all parties should be entitled to know the underlying predicates and defenses of all of the other parties.
CONCLUSION
The Advisory Committee Notes for the 2006 amendments to Rule 34(b) state as follows: Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. As provided in Rule 45, If requested documents are within the control of a party upon whom a valid request is made, that party must obtain and produce those documents (Pleasant v. Pleasant, 632 A.2d 202, 97 Md.App. 711 (1993)). If you have any questions whatsoever, my contact information is below. Thank you.
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se, Consumer Creditor
3941 Persimmon Drive, #102, Fairfax, VA 22031 Tel: (617) 202-8069
Cc: Counsels for Non-Parties Witnesses & Non-Parties Witnesses
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this letter was mailed to the parties and attorneys below.

Pierre R. Augustin, Pro Se, 3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069 Cert# = Confirmation of receiving Notice to Depose
Attorneys, non-parties and parties served
Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166
Status: Delivered
Your item was delivered at 9:04 AM on October 10, 2008 in MANCHESTER, NH 03101.
Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197
Status: Delivered
Your item was delivered at 7:03 AM on October 14, 2008 in WILMINGTON, DE 19801.
Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274. Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173
Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.
Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.
Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180
Status: Delivered
Your item was delivered at 10:58 AM on October 7, 2008 in SAN DIEGO, CA 92127.
Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.
Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.
Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.
Legal Department
Small Business Administration (SBA)
SBA Loan#: LDP5329494000
SBA Loan Name: Admerk Corp. Inc.
Note date: May 17, 2002
Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.
Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
Real Time Solution, Inc.
1750 Regal Row, Ste 120
Dallas, TX 75235
Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400
Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy
President
Tedd Chambler
Commonwealth Land Title Insurance Company Inc
5600 Cox Rd
Glen Allen, VA 23060-9266
United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900
U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491
President
Thomas Jacob
Chase Home Finance
194 Wood Ave S # 2
Iselin, NJ 08830
Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423
Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845
Deutsche Bank National Trust
300 S. Grand Ave, Ste 3950
Los Angeles, CA 90071
Chairman and CEO
Timothy P. (Tim) Flynn
KPMG LLP (“KPMG”)
757 Third Ave.
New York, NY 10017
President
Deven Sharma
Standard and Poor’s
55 Water Street
New York, New York 10041
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered
Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.
Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered
Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.
Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered
Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered
Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.
Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.
CEO, Aseem Mital
Ameriquest Mortgage Company
1100 Town & Country Rd., Suite 1200
Orange, California 92868
R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.
Ameriquest Mortgage Company
John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered
Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered
Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.
DanversBank
Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered
Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered
Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.
Samuel P. Reef
Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494. Alen H. Segal
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I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
--------------------------------
Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 703-584-5998, Email: hdmhos@aol.com
October 23, 2008
Attorney David W. Carickhoff, Jr
Blank Rome LLP, Chase Manhattan Centre, 1201 Market Street, Suite 800, Wilmington, DE 19801 Records Custodian for New Century TRS Holding, Inc. & Attorney, Christopher M. Samis, Richards, Layton & Finger, P.A. , 920 N. King Street, Wilmington, DE 19801
CERTIFIED MAIL: 7007 3020 0002 3324 9198
Re: New Century TRS Holding, Inc., New Century Liquidating Trustee v. Pierre R. Augustin, Pro Se, Case #: 07-10416, Chapter 11
[Our justice system is not perfect. Mistakes are inevitable. However, when
New evidences are presented, the will to do good must prevail over the status quo]
Dear Attorney Carickhoff, Jr., Records Custodian for New Century, Attorneys for Non-Parties & Non-Parties Witnesses (see list of parties):
The purpose of this letter is to notify you that you may have in your possession, or under your control, certain documents and information, including electronically or digitally stored information relevant to the discovery process of the case above. In addition, you, agents, employees & Counsels for Non-Parties Witnesses and Non-Parties Witnesses themselves may have knowledge of facts relevant to matters likely to lead to admissible evidence.
The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Please keep in mind of the following:
Federal Rule 26(a)(1)(E), Federal Rule 26(a)(2), Federal Rule 26(a)(3)
Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
“When discovery rights are trampled, prejudice must be presumed”
Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003)
The filing of this letter with the Federal Courts Will Serve
As Proof of Notification to All Counsels for the Non-Parties Witnesses
and on Non-Parties Witness themselves.
1. BUSINESS RECORDS -- MISSING EVIDENCE -- SPOLIATION
“Spoliation” can be defined as the failure to preserve evidence that is relevant to pending or potential litigation (Jimenez-Sanchez v. Carribean Restaurants, L.L.C, 483 Fed.Supp.2d 140 (D. Puerto Rico 2007)). The actual keeper or custodian of the evidence is irrelevant for discovery purposes. Counsel for New Century TRS Holding, Inc., handing files and documents to New Century Liquidating Trustee’s Counsel as in this case does not shield otherwise discoverable ‘REAL’ evidence. Moreover, New Century Mortgage Corporation had a duty to preserve evidence. Thus, New Century Mortgage Corporation should have known that evidence may be relevant to future litigation as a result of Mr. Augustin’s civil suit (06-10368) and Bankruptcy matter (05-46957).
Because preservation of documents and availability for production are essential to the orderly and expeditious disposition of litigation, the inability to produce documents impedes the litigation process and merits sanctions (See in re Prudential Insurance Company of America Sales Practice Litig., 169 F.R.D. 598, 36 FED.R.Serv.3d 767 (D.N.J. 1997)). As far as electronic discovery, the producing party is obligated to search available electronic systems for the information demanded in discovery. The willful failure to comply with a discovery demand should be construed as an intentional failure as distinguished from involuntary noncompliance; no wrongful intent need be shown to impose discovery sanctions (See Smith v. City of New York, 388 Fed.Supp.2d 179 (S.D.N.Y., 2005)(Sanctions may be imposed for both intentional and negligent destruction of evidence)(Martinez v. Abbott Laboratories, 146 S.W.3d 260 (Tex. App. 2004).
The duty to preserve evidence arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim)(Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D., Tenn., 2005). Under the rule generally governing discovery, a party must not destroy unique, relevant evidence that might be useful to Consumer Creditor and this includes any document made by an individual likely to have discoverable information that the disclosing party may use to support its claim or defenses. The duty to preserve evidence, set forth in the rule that generally governs discovery, extends to all relevant documents from the time the trigger date passes, and continues thereafter.
If documents sought during discovery are destroyed or cannot be located, then that party must provide an explanation for the disappearance of the evidence. There are several factors that the court should utilize in determining whether or not to impose sanctions: [a] - A party destroys, [b] - discoverable matter, [c] - which that party knew or should have known and [d] - was relevant to pending, imminent or reasonably foreseeable litigation.
The following additional factors are considered: [1] - The degree of actual prejudice to the demanding party, [2]-The amount of interference with the judicial process, [3] - The culpability of the responding party, and [4] - Whether or not the responding party was forewarned about the sanctions for noncompliance.
A party has a duty to preserve evidence when that party is placed on notice that evidence is relevant to the subject litigation or when the party should have known that evidence may be relevant to future litigation. One remedy is the so-called “Missing Document Charge,” wherein the jury is specifically informed about the missing document and is told that it may infer that the missing evidence was most unfavorable to the spoliator. See Think Pink, Inc. v. Rim, Inc., 798 N.Y.S.2d 413 (N.Y.A.D., 1 Dept., 2005). Conclusively, if document are reported missing and cannot be located by the opposing counsels, parties and non-parties witnesses, Consumer Creditor will simply infer that the missing evidence was most unfavorable to them.
2. NOTICE TO PRESERVE DOCUMENTS
Pursuant to a duty imposed by law, This Notice and the applicable court rules require the preservation of all information from your Company’s computers and computer storage systems (including tapes, drives, CD’s and DVD’s), regardless of location, relating to this matter. This includes, but is not limited to, all computer files, e-mail and other electronic communications, databases, word processing documents, PDF’s, spreadsheets, calendars, telephone logs, contact information, Internet usage files, and network access information.
For purposes of this notice, the term “electronic information” includes, but is not limited to, all text files, word processing documents, presentation files such as PowerPoint, spreadsheets, e-mail files and information concerning e-mail files (including logs of e-mail, header information, and deleted files), Internet history files and preferences, graphical files in any format, databases, calendar and scheduling information, telephone logs, contact managers, computer activity logs, and all file fragments and backup files containing electronic data.
Upon receipt of this notice, you are prohibited from destroying, erasing, or over-writing any documents, emails, or other writings that relate to the lawsuit, regardless of their physical form, type or date. Extra care must be taken for electronic writings, which can be erased by the mere storage of new data. Your client should preserve and not destroy all passwords, decryption procedures, network access codes, ID names, tutorials, written instructions, decompression or reconstruction software, in addition to all other information necessary to access, view and, if necessary, reconstruct the electronic data that we will request through discovery.
You are under a legal obligation to preserve, maintain, and protect all potential relevant evidence, including electronic evidence. The failure to preserve and retain the electronic data as outlined in this notice constitutes a spoliation of evidence and may subject you to legal claims for damages in addition to evidentiary and monetary sanctions.
3. INITIAL “REQUIRED OR MANDATORY DISCLOSURES” REMINDER - [F.R.C.P. 26(a)]
According to the United States Supreme Court, the purpose behind Rule 37 of the Federal Rules of Civil Procedure was to protect the courts and opposing parties from “delaying or harassing tactics during the discovery process (Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999)). An attorney filing a responsive discovery pleading on behalf of a client must certify that he or she made a reasonable effort to see to it that the client has provided all of the information requested. See Poole v. Textron, 192 F.R.D. 494 (D.Md. 2000) and Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997).
Once a motion has been filed, the opposing party may not necessarily be able to avoid its consequences, even if he or she files a late response to your discovery requests. See Greenbriar Homes, Inc. v. Builders Insurance, 615 S.E.2d 191, 273 Ga. App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless, required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.
In accordance with Rule 26(a)(1) of the Federal Rules of Civil Procedure, Consumer Creditor is reminding Counsels for New Century TRS Holding, Inc. & New Century Liquidating Trustee to provide their mandatory disclosure as follows:
This Is A Reminder To Provide ‘Initial Mandatory Disclosures’ From Previous Notice To Produce
1. In Exhibit 1, New Century Mortgage denied the mortgage application on January 22, 2004.
Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
2. In Exhibit 2, New Century Mortgage denied the mortgage application on March 9, 2004. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
3. In Exhibit 3, Commonwealth Land Title Insurance Company (Non-Party) reported on March 29, 2004 that the title was clear for closing. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
4. In Exhibit 4, Consumer Creditor and a Party In Interest was issued a mortgage. Please provide the name of the person who made that decision and have him or her present at the deposition. If that person is not available, please state why? Otherwise, please provide a ‘designated deponent’ [Name] & [address] that is likely to have discoverable information relevant to Consumer Creditor’s claims as per FRCP 30(b)(6) and indicate whether he or she has personal knowledge regarding the subject loan transaction prior the deposition date.
In accordance to FRCP 26(a)(1)(A), you must voluntarily disclose additional names, addresses and telephone numbers of each individual & non-parties likely to have discoverable information. The disclosure must also clearly indicate “The subjects of the information” of each these individuals knows, their title, company affiliation, copy of their job description and to whom they report at their respective companies.
4. FULL DISCOVERIES RIGHTS GRANTED By Judge Kevin J. Carey on August 20, 2008, Extracted from August 20, 2008 Transcript, page 69
“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --
THE COURT: Yeah. Well, the --
MR. AUGUSTIAN: -- let the Court know.
THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?
MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record.
Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.
5. NON-PARTIES ORDINARY WITNESSES
Please review the certificate of service for the complete lists of non-parties ordinary witnesses and their attorneys in the above matter. Non Parties Witnesses (someone and companies) are not a party in this matter but the records they hold have some bearing on his claims and New Century Mortgage Corporation had transactions with the non-parties in relation to Consumer Creditor’s mortgage and business loan.
Rule 34 of the Federal Rules of Civil Procedure, which provides that “any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the request or’s behalf, to inspect and copy, any designated docu ments (including writings, drawings, graphs, charts, photographs, phono records, and other data compila tions from which information can be obtained, trans lated, if necessary, by the respondent through detec tion devices into reasonably usable form) ...” [Emphasis supplied]. Rule 1001(1) of the Federal Rules of Evidence provides: “Writings” and “recordings” consist of letters, words or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation [Emphasis supplied]. Therefore, Non-Parties Witnesses are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.
6. NOTICE TO REQUEST ‘RAW FACTS & REAL EVIDENCE’ from All Counsels of Non-Parties & Non-Parties Witnesses
Now the time has come, in view of the financial crisis, for the opposing Counsels to move behind the legal technicalities and abide by their oath for due diligences…
“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God”
… because the $700 billion bailout to Financial Institutions on Wall Street by our Political Leaders and Public Officials resulted out from poor mortgage underwriting practices encouraged by the banks involved in this matter.
Reflectively, Consumer Creditor stands before the opposing Counsels with a sense of sadness for the ongoing foreclosure crisis has resulted in the largest currency devaluation in modern U.S. History and affects every American and every foreign person, government, agency, village or city that put money into pooled funds of the collateralized debt obligations CDO’s.” Let us all hope and pray that the bailout stabilized local, national and global financial market and economical activities.
The timing of these economical, financial and operative facts mentioned above are intertwined with Consumer Creditor’s matter and are always considered fair game for discoveries. So too are the legal theories and defenses of the action along with all real evidence that any party has obtain or discover (Myers v. City of Highland Village, 212 F.R.D. 324 (E.D. Tex. 2003). The scope of permissible discovery under the Federal Rules of Civil Procedure as with all of its state counterparts is very broad. Rule 26(b)(1) specifically permits discovery of “any matter, not privileged, which is relevant” with respect to any “claim” or “defense.”
The subsection then takes the trouble to list certain examples, such as “books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” If there is any point or purpose at all to the discovery process, it must enable Consumer Creditor’s access to those raw facts and pieces of “hard evidence” that form the underlying basis for the subject matter. These are the one-of-a-kind materials and information that the court have always make available through discovery.
(Extract from the August 20, 2008 Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them)
Experts who are to testify and who also provide analysis, guidance, reports and opinions are witnesses nonetheless. An expert may wear the hat of a “consultant,” but his status as a testifying witness trumps the consultant status. In particular, as a testifying expert, he is certainly subject to discovery. Rule 26(a)(2)(B) mandates both the preparation and disclosure of a written signed report. According to that rule, the report:
“... shall contain a com plete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”
The Counsels should not use the Work Product Doctrine as a device for hiding facts or evidence that are discoverable. Those hoping to erect a shield for such information often mix the hard evidence with work product materials, or try to mis-characterize such evidence as work product United States v. Dentsply Int’l, 187 F.R.D. 152 (D.Del. 1999); United States v. Frederick, 182 F.3d 496 (7th Cir. Wis. 1999); Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626 (D.Kan. 1999). Common sense dictates that all parties should be entitled to know the underlying predicates and defenses of all of the other parties.
CONCLUSION
The Advisory Committee Notes for the 2006 amendments to Rule 34(b) state as follows: Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. As provided in Rule 45, If requested documents are within the control of a party upon whom a valid request is made, that party must obtain and produce those documents (Pleasant v. Pleasant, 632 A.2d 202, 97 Md.App. 711 (1993)). If you have any questions whatsoever, my contact information is below. Thank you.
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se, Consumer Creditor
3941 Persimmon Drive, #102, Fairfax, VA 22031 Tel: (617) 202-8069
Cc: Counsels for Non-Parties Witnesses & Non-Parties Witnesses
CERTIFICATE OF SERVICE
I hereby certify that a true copy of this letter was mailed to the parties and attorneys below.

Pierre R. Augustin, Pro Se, 3941 Persimmon Drive, #102, Fairfax, VA 22031, Tel: 617-202-8069 Cert# = Confirmation of receiving Notice to Depose
Attorneys, non-parties and parties served
Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166
Status: Delivered
Your item was delivered at 9:04 AM on October 10, 2008 in MANCHESTER, NH 03101.
Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197
Status: Delivered
Your item was delivered at 7:03 AM on October 14, 2008 in WILMINGTON, DE 19801.
Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274. Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173
Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.
Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.
Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180
Status: Delivered
Your item was delivered at 10:58 AM on October 7, 2008 in SAN DIEGO, CA 92127.
Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.
Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.
Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.
Legal Department
Small Business Administration (SBA)
SBA Loan#: LDP5329494000
SBA Loan Name: Admerk Corp. Inc.
Note date: May 17, 2002
Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.
Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
Real Time Solution, Inc.
1750 Regal Row, Ste 120
Dallas, TX 75235
Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400
Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy
President
Tedd Chambler
Commonwealth Land Title Insurance Company Inc
5600 Cox Rd
Glen Allen, VA 23060-9266
United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900
U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491
President
Thomas Jacob
Chase Home Finance
194 Wood Ave S # 2
Iselin, NJ 08830
Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423
Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845
Deutsche Bank National Trust
300 S. Grand Ave, Ste 3950
Los Angeles, CA 90071
Chairman and CEO
Timothy P. (Tim) Flynn
KPMG LLP (“KPMG”)
757 Third Ave.
New York, NY 10017
President
Deven Sharma
Standard and Poor’s
55 Water Street
New York, New York 10041
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005
Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered
Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.
Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered
Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.
Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered
Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered
Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.
Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.
CEO, Aseem Mital
Ameriquest Mortgage Company
1100 Town & Country Rd., Suite 1200
Orange, California 92868
R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.
Ameriquest Mortgage Company
John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered
Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered
Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.
DanversBank
Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered
Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.
Old Republic National Insurance
Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered
Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.
Samuel P. Reef
Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494. Alen H. Segal
---------------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
Thursday, September 25, 2008
Motion To Show Cause
http://rcxloan.com/Motion_Show_Cause.htm
“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
Emergency Request for Help to Stop Chase Home Finance's Mortgage Fraud
United States Court of Appeals - District of Massachusetts
Pierre Richard Augustin, PRO SE )
Appellant, )
)
v. ) 07-1750
)
Chase Home Finance, LLC )
Appellee. )
MOTION TO ‘SHOW CAUSE’ PER THE ORDER OF MAY 15, 2007
On May 11, 2007, Appellant submitted an ‘Emergency Motion for a Stay of the foreclosure set for May 16, 2007 and requested an ‘Expedited Review’. In that request, Appellant was only seeking a review of that part of the Order that denied the Stay on May 9, 2007 (not the Order granting motion to dismiss by the District Court).
Appellant was unaware that final judgment has not been entered since his requested for a default order against those two defendants were denied or not acted upon yet and assumed that he was facing dismissal against all defendants. Given that Appellant had filed a timely notice of appeal on April 26, 2007 to the First Circuit of the Court of Appeals, he wrongly assumed that an other notice of appeal was not needed at all.
Essentially, Appellant is now looking for an Expedited Review of this Emergency Motion For A Stay with the provided ‘Show Cause’ written explanation since the foreclosure date has been moved now for May 23, 2007. Thus, on May 15, 2007, Appellant filed for an Interlocutory Notice of Appeal at the District Court based on the facts pointed out by the Court of Appeals and has submitted a revised Motion and Memorandum of Law.
STATEMENT OF ISSUE FOR THE ‘SHOW OF CAUSE’
Is This Written Show Of Cause As Requested by The First Circuit Court of Appeals Intertwined With The Appellant’s Right To Defend His Property Interest On The Merits of ‘Equal Justice Under Law?
FUNDAMENTAL BASIS OF ARGUMENT (Les Inusta Non Est Lex)
Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Therefore, let us consider the following two situation by Dworkin:
First Quotation by Dworkin
“An impatient beneficiary under a will murder the testator. Should he be
permitted to inherit?”
Appellant’s Contextual Analogy of First Quotation
Chase Home Finance as an impatient beneficiary strips away Appellant’s property rights despite his timely legal objections and defenses. Should Chase Home Finance be permitted to inherit the profit by selling Appellant’s property now set for May 23, 2007?
Second Quotation by Dworkin
“A chess grand master distracts his opponent by continually smiling at him.
The opponent objects. Is smiling in breach of the rule of chess?
Appellant’s Contextual Analogy of Second Quotation
Chase Home Finance blind folded their eyes and their two hands over their ears by not answering to Appellant’s timely legal objections and defenses by maintaining silence. Appellant objects but no one is looking or listening. Is the silence of Chase Home Finance in breach of the rules of law?
ARGUMENT
Are The Wordings of “Equal Justice Under Law” At The Façade of The U.S. Supreme Court An Abstract Theory Or A Fundamental Right?
The first quotation mentioned above by Dworkin is “drawn from the New York Decision of Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer’s favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York Court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Hence, a murderer could not inherit from his victim.”
According to Dworkin, in the second quotation, “the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best ‘fits’ and explains the practice of chess.”
Appellant is a victim of Predatory Lending (See Motion on ‘Relevant Evidences’) and Mortgage Fraud initiated by New Century Mortgage Company. Appellant’s mortgage was assigned to Chase Home Finance or Deuthsche National Trust Company (Appellee).
As illustrated above in Appellant’s contextual analogy, he has been injured as a result of Appelle’s silence and other creditors wrongdoings. On February 2006, Appellant’s desperately sought to stop the sale of his house by another creditor unsuccessfully. However, ‘relevant new evidences’ have surfaced in the Washington Post (See Motion on Relevant Evidences) that confirm the fact that Appellant is a victim of predatory lending and mortgage fraud.
Also, according to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that, "Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Appellant’s has been arguing in his pleadings and motions.
The whole purpose of the law is that New Century Mortgage, Chase Home Finance or Deuthsche National Trust Company are responsible for the harm that arise out of their act. It should not fall on the Appellant, the innocent victim of that act who have acted timely to protect his property interests.
Collateral Order Doctrine
Appellant is seeking a review at the First Circuit, Court of Appeals, according to 28 U.S.C. 1291 and 28 U.S.C. 1292, because of the irrefutable facts that Appellee and other creditors failed to respond to his timely TILA notice of rescission and the Mortgage Fraud issue as a defense to foreclosure.
The Supreme Court of the United States delineated the test for the availability of interlocutory appeals, called the collateral order doctrine, for United States federal courts in the case of (Lauro Lines s.r.l. v. Chasser et al., 490 U.S. 495 (1989), (Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949)), holding that under the relevant statute (28 U.S.C. § 1292) such an appeal would be permitted only if:
1. The outcome of the case would be conclusively determined by the issue
The Order of the District Court of May 9, 2007 conclusively states that it lacks jurisdiction to even consider the requested stay.
2. The matter appealed was collateral to the merits
As Massachusetts is a non-judicial foreclosure jurisdiction, Appellant will lose his rights of due process, if an entry for a stay by this Court is not granted because the sale of his home will be irreversible and render any subsequent and pending legal actions moot.
3. The matter was effectively unreviewable if immediate appeal was not allowed
The right of Appeal will be 'irretrievably lost' if immediate review is not available and granted.
CONCLUSION
Appellant cannot undo the damages that preceded. But, however harsh it may seems, the law provides Appellant with the right of rescission if he catches any technical violation within 3 years of the signing of the loan documents. Thus, Appellant’s TILA rescission notice was timely sent to Appellee and other creditors on September 21, 2006.
In the marble façade of the Supreme Court, the words one sees are “Equal Justice Under Law”.
Therefore, Appellant’s right of rescission has precedence, negated any foreclosure actions and voided the security interest in his property.
For that matter, Chase Home Finance [cannot be allowed]:
1. To profit from the Predatory Lending practices that it inherited from New Century Mortgage.
2. To remain ‘silent’ on the issues of mortgage fraud and TILA rescission.
3. To continuously defying, trampling and usurping Appellant’s rights and the rule of law.
Respectfully Submitted,
Pierre R. Augustin, Pro Se
28 Cedar Street, #2, Lowell, MA 01852,
Tel: 617-202-8069
# # # # # # #
Qualified Written Letter Sent to Chase Home Finance and Deutsche National Trust Company
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 limitations and 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, MPA, MBA
617-202-8069
# # #
WHAT IS AN ILLEGAL FORECLOSURE?
1. IF YOUR FORECLOSURE DOES NOT FOLLOW ALL OF THE STEPS REQUIRED BY LAW, THEN YOUR FORECLOSURE WILL NOT BE A VALID AND LEGAL FORECLOSURE.
2. IF YOUR FORECLOSURE IS STARTED BY THE WRONG LENDER, THEN YOUR FORECLOSURE IS ILLEGAL. (Make sure the lender on your deed of trust is the same lender foreclosing on your home. If not, then there must be a recorded assignment transferring the loan to the new lender before that lender can start the foreclosure)
3. IF YOUR FORECLOSURE IS STARTED EVEN THOUGH YOU ARE NOT BEHIND ON YOUR PAYMENTS (Yes, this happens!), THEN YOUR FORECLOSURE IS ILLEGAL.
4. IF YOUR FORECLOSURE IS STARTED BASED ON THE PROMISSORY NOTE ONLY, AND NOT THE DEED OF TRUST, THEN YOUR FORECLOSURE IS ILLEGAL (UNLESS THEY HAVE ALREADY SUED YOU ON THE NOTE, OBTAINED A JUDGMENT AND THEN STARTED A FORECLOSURE ACTION).
5. IF THE FORECLOSURE ON YOUR HOME IS THE RESULT OF A PREDATORY LOAN, YOUR FORECLOSURE MAY BE ILLEGAL.
6. IF YOU ARE NOT GIVEN AN OPPORTUNITY TO APPEAR AT YOUR FORECLOSURE HEARING AFTER FILING YOUR RESPONSE AND PAYING YOUR FEE, THEN YOUR FORECLOSURE IS ILLEGAL.
7. IF THE COURT DOES NOT ISSUE AN ORDER AUTHORIZING THE SALE OF YOUR HOME AT LEAST SEVEN DAYS BEFORE THE SALE DATE, THEN YOUR FORECLOSURE SALE IS ILLEGAL UNLESS IT IS RESCHEDULED TO A TIME AT LEAST SEVEN DAYS FROM THE ORDER.
# # #
Predatory Lending
These are some of the abusive practices you will experience from a predatory lender:
Terms, Interest Rate and Fees are Increased at Closing (bait and switch) Excessive Fees - Unnecessary Product - Excessive Kickbacks To Brokers Mandatory Arbitration - Abusive Prepayment Penalties - Loan Flipping Steering & Targeting
NOW FOR THE GOOD NEWS!
Federal Law provides protection against abusive and insensitive lending practices. Furthermore, the law provides for very stiff penalties for lenders who violate such laws.
IF YOU WANT TO KEEP YOUR HOME, ARM YOURSELF WITH AN UNDERSTANDING OF THE PROTECTIONS UNDER THE FOLLOWING:
The Truth in Lending Act (TILA)
The federal Truth In Lending Act was originally enacted by Congress in 1968 as a part of the Consumer Protection Act to protect you, the homeowner. Under TILA a homeowner has a right to rescind a loan secured by his or her primary residence. This includes home equity loans and home improvement loans and refinances, whether a first or second mortgage, so long as the money was not used to purchase the home. Under this Act, the homeowner must be provided with a notice of the right to cancel. The lender must have a notice signed by you notifying you of this right to cancel; otherwise the lender has not complied with this federal law.
THIS CAN BE FOUND ONLINE OR AT THE LIBRARY IN FEDERAL LAW: TITLE 15 U.S.C. SECTION 1601 et. seq READ IT!!!!!!!
You, the homeowner have a right to rescind your loan up to three business days after the transaction and an extended right to rescind the loan for up to three years (that’s right folks, you can cancel your loan up to three years later) if you’re not given a notice of the right to cancel the loan, OR if you did not receive notice with all of the required material disclosures. Oh it’s a stiff penalty, but it’s your right!! TILA also requires lenders to disclose the terms of loans in an understandable manner. The “National Consumer Law Center's Truth in Lending” manual provides detailed information on how TILA can be used to CHALLENGE predatory loans.
Sounds a little like poetic justice to me! Send your lender (by certified mail) your rescission notice pointing out the violations under TILA, HOEPA AND RESPA. This is federal law so take full advantage of it! Get the picture?
Home Ownership and Equity Protection Act (HOEPA)
The Home Ownership and Equity Protection Act, is an amendment to TILA. This section of law covers certain high rate home equity loans. In addition to notice of the right to cancel and other disclosures required by TILA, if a loan is covered under HOEPA, lenders must provide borrowers with additional disclosures of the “annual percentage rate” (APR) and monthly payment three days prior to closing. These disclosures must also include provisions telling the borrower that they are not required to sign the loan agreement simply because they received the disclosure statements, and they may lose their home if they do not meet their obligations under the terms of the loan. In addition to the disclosure requirements, HOEPA prohibits the inclusion of certain terms in the loan contract. A loan covered under HOEPA may not include the following:
1. Terms which increase the interest rate in the event of default. If you fall behind on your mortgage payment, they cannot increase the interest rate.
2. Balloon payments prior to ten years. The lender cannot put a stipulation in your loan that requires the total amount of your loan to be paid off in the first ten years or even a payment that is much larger than your regular monthly payment.
3. Negative amortization. If the amount of your monthly payment is not enough to cover the interest payment on your loan, the “shortage” is added to your loan balance. So with each monthly payment you make, your loan balance goes up instead of down. This type of loan violates federal law.
4. No prepaid payments. At closing, the lender cannot roll any payments into your loan. This would result in additional interest charged on interest itself, which is prohibited by state and federal usury laws.
5. Extending credit to individuals without regard to their ability to repay the loan. This is a big one folks! A lender cannot put you in a loan based on fictitious income information that was grossly exaggerated in order to make it appear that you qualified for the loan. This is an illegal practice prohibited by state and federal law and a very common abuse perpetrated on the elderly.
6. Disbursement of funds payable solely to a home improvement contractor. On a home improvement loan, the lender cannot pay the contractor directly. The check must be made solely to the homeowner or made to the homeowner and the contractor together.
7. Most prepayment penalties are also prohibited.
If you are facing foreclosure and your loan is less than three years old, you are still protected under federal law! Violations of HOEPA's disclosure provisions and inclusion of prohibited contract terms will make your lender liable to you for actual damages, statutory damages and attorney fees and costs. In addition, there are special enhanced damages, of finance charges and fees paid by the consumer, for material violations. HOEPA violations are also subject to TILA's extended right to rescind. Assignees (if your loan is sold to another lender) of loans covered under HOEPA are liable for all claims and defenses with respect to the assigned mortgage that the consumer could assert against the original lender on the loan, except to the extent of certain limitations on damages. These laws are for your protection and can save your home, use them!!!
Real Estate Settlement and Procedures Act (RESPA)
Among other provisions, the Real Estate Settlement and Procedures Act prohibits the payments of unearned fees and kickbacks. A lender kickback to a mortgage broker for making a referral is forbidden. The remedy for violation of this provision is treble (three times the amount) damages and attorney fees.
State Unfair and Deceptive Acts and Practices Laws (UDAP)
Many of the abusive practices and loan terms found in predatory mortgage loans can be challenged under state unfair and deceptive acts and practices (UDAP) laws. If a state's UDAP statute covers the type of transaction or the creditor involved, advocates may bring claims for practices such as repeated and unnecessary refinancing ("flipping") of loans, making unaffordable loans to consumers to acquire the equity in the property, or misrepresenting the loan terms. Excessive fees and costs, and other terms that are disadvantageous to the borrower may be challenged as well.
Other Laws
In addition, warranty law, usury, unconscionability, breach of fiduciary duty, fraud, and contract law have remedies which may prove helpful in challenging abusive loans. Other laws, including the Equal Credit Opportunity Act and the Fair Housing Act, have also been used to challenge these practices.
Introduction to the Mortgage Servicing Scam
• These are not "predatory lenders." These companies do not loan money. They operate in the lending
industry after-the-fact. They take on a function that a lender doesn’t want - the backroom functions of
handling payments, escrow accounts, annual statements, dealing with borrowers, collections, etc. The
perpetrators of the loan servicing scam acquire the servicing rights to loans that other companies have
already made. (Loans that were deliberately constructed by predatory lenders are ideal for processing
through servicers that specialize in aggressive collections or rapid foreclosure processing, but the loan
servicing scam can be operated against any mortgage loan if the servicer acquires the rights from the lender.)
• These scams are designed and deliberately operated. These situations are not errors, mistakes or
situations where a servicer’s managers or employees failed to do their job. Their systems are well-designed
and state-of-the-art in terms of analytical technology that helps them choose and process their victims.
These scams generate enormous profits from a business that is difficult to run, people and litigation
intensive and normally only marginally profitable. Many have failed and been acquired (Fairbanks bought
several).
• You, the borrower are not their customer. Lending companies and investors are their customers. As a borrower being "serviced" in the scam, you are simply one of millions in an ever-growing pool of what the financial services industry deliberately labels as "sub-prime" borrowers waiting to be taken advantage of.
• They have almost unlimited legal resources. If you had the financial resources to have effective legal
representation and the documentation to challenge them, they would turn their attention to easier targets. Of course, because most sub-prime borrowers are not well off and don’t have an attorney, you’re a likely target.
• They have leverage and information and will prey on your fears. The fear of possibly losing your
home is the key that unlocks your bank account for them. They know almost everything about you
financially and even from an employment and income basis. They are made aware of your inquiries into other lenders about refinancing even without a request for a payoff and that shopping may lead them to target you before you can get out of the loan you’re in.
• They are experts with millions of successful cases behind them. The loan servicing industry, including those who founded and are running the servicing scam companies, helped craft the "standard" loan documents in widespread use. They are written entirely for the protection of the lending industry, not the consumer. That situation allows them to manipulate their processes and procedures to push you into a position where they can take funds from you or ultimately take your home, often within the terms and conditions of the loan. Some do go beyond the terms or even break the law and aren’t stopped because the borrower does not actually understand the agreement they signed or the laws and regulations.
- When the servicer decides to manipulate the date the payment is received in order to artificially
create a late payment.
- When the servicer applies part of the payment to something other than principal and interest and
creates a partial late payment or deficiency.
- When the servicer decides to "force place" an insurance policy on the property by claiming the
homeowner has not provided proof of insurance.
- When the servicer pays your property taxes late, then adds their late penalty to your account
without your knowledge.
- Any or all of those processes result in at least one month of the account being past due and a negative note is made in the credit report (which effectively prevents the borrower from refinancing). It also helps the Private Mortgage Insurance carrier keep the policy in effect on the loan, which is why these insurance companies have investments in servicing companies in the first place – a late payment or two allows the lender to keep the insurance in force.
- IF the borrower has anything more than about 10-15% equity in the property, it is to the servicer’s
advantage at this point to not aggressively attempt to collect. In fact, if the borrower makes contact, the servicer will engage in delay tactics to avoid resolving the problem in time to prevent default. If the equity position is considerably less than 10%, the servicer does not have as much leverage, nor is the opportunity as great and they will typically be more aggressive in collection efforts and more willing to keep the loan in force.
- In the case of force-placed insurance, it is to the servicer’s advantage to ignore the borrower and any proofof insurance as long as possible, again to keep the borrower’s credit status in a negative light and to maintain their relationship with the insurer they contract with. These policies are extremely profitable because they provide absolutely no coverage for the homeowner. They protect ONLY the value of the loanif the property is destroyed.
- If the servicer has analyzed the opportunity and marked the property for default and recovery, the next payment received will be rejected as being insufficient. If it is accepted, the application of the funds leaves the loan sixty days past due. Typically, the scam now moves toward formal legal notice of acceleration in order to coerce the borrower into signing a highly-profitable forbearance agreement to somehow "save the home." The servicer rolls thousands of dollars in penalties and an incomprehensible combination of legitimate and illegitimate fees into the agreement and the homeowner is left with no choice but to sign it or lose their home. The amount demanded will be calculated to take as much of the homeowner’s equity as possible.
- If the homeowner decides to sell the property to get out of the situation and take their equity, they will find the payoff amount (which in the last month of the scam will take longer to get than the amount of time left before foreclosure) strips them of their equity. That combined with their artificially-damaged credit rating helps keep the victim trapped.
- If the borrower cannot pay the amounts demanded in the forbearance agreement, the servicer will have one of their network of specialized attorney firms foreclose and the property will be sold, typically at a county auction or through their real-estate network.
- If the borrower signs the agreement, they will soon be recycled through the process with yet more late payments and fees. But in the terms of the forbearance agreement, they may find they have signed away any legal protections they may have already had, including the right to sue the servicer for fraud or misrepresentation.
- In the end, if the homeowner cannot afford competent legal representation to stop this fraud, they lose their equity and in many cases, their home.
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1
Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:
Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.
A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.
When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.
So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.
Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
Emergency Request for Help to Stop Chase Home Finance's Mortgage Fraud
United States Court of Appeals - District of Massachusetts
Pierre Richard Augustin, PRO SE )
Appellant, )
)
v. ) 07-1750
)
Chase Home Finance, LLC )
Appellee. )
MOTION TO ‘SHOW CAUSE’ PER THE ORDER OF MAY 15, 2007
On May 11, 2007, Appellant submitted an ‘Emergency Motion for a Stay of the foreclosure set for May 16, 2007 and requested an ‘Expedited Review’. In that request, Appellant was only seeking a review of that part of the Order that denied the Stay on May 9, 2007 (not the Order granting motion to dismiss by the District Court).
Appellant was unaware that final judgment has not been entered since his requested for a default order against those two defendants were denied or not acted upon yet and assumed that he was facing dismissal against all defendants. Given that Appellant had filed a timely notice of appeal on April 26, 2007 to the First Circuit of the Court of Appeals, he wrongly assumed that an other notice of appeal was not needed at all.
Essentially, Appellant is now looking for an Expedited Review of this Emergency Motion For A Stay with the provided ‘Show Cause’ written explanation since the foreclosure date has been moved now for May 23, 2007. Thus, on May 15, 2007, Appellant filed for an Interlocutory Notice of Appeal at the District Court based on the facts pointed out by the Court of Appeals and has submitted a revised Motion and Memorandum of Law.
STATEMENT OF ISSUE FOR THE ‘SHOW OF CAUSE’
Is This Written Show Of Cause As Requested by The First Circuit Court of Appeals Intertwined With The Appellant’s Right To Defend His Property Interest On The Merits of ‘Equal Justice Under Law?
FUNDAMENTAL BASIS OF ARGUMENT (Les Inusta Non Est Lex)
Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Therefore, let us consider the following two situation by Dworkin:
First Quotation by Dworkin
“An impatient beneficiary under a will murder the testator. Should he be
permitted to inherit?”
Appellant’s Contextual Analogy of First Quotation
Chase Home Finance as an impatient beneficiary strips away Appellant’s property rights despite his timely legal objections and defenses. Should Chase Home Finance be permitted to inherit the profit by selling Appellant’s property now set for May 23, 2007?
Second Quotation by Dworkin
“A chess grand master distracts his opponent by continually smiling at him.
The opponent objects. Is smiling in breach of the rule of chess?
Appellant’s Contextual Analogy of Second Quotation
Chase Home Finance blind folded their eyes and their two hands over their ears by not answering to Appellant’s timely legal objections and defenses by maintaining silence. Appellant objects but no one is looking or listening. Is the silence of Chase Home Finance in breach of the rules of law?
ARGUMENT
Are The Wordings of “Equal Justice Under Law” At The Façade of The U.S. Supreme Court An Abstract Theory Or A Fundamental Right?
The first quotation mentioned above by Dworkin is “drawn from the New York Decision of Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer’s favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York Court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Hence, a murderer could not inherit from his victim.”
According to Dworkin, in the second quotation, “the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best ‘fits’ and explains the practice of chess.”
Appellant is a victim of Predatory Lending (See Motion on ‘Relevant Evidences’) and Mortgage Fraud initiated by New Century Mortgage Company. Appellant’s mortgage was assigned to Chase Home Finance or Deuthsche National Trust Company (Appellee).
As illustrated above in Appellant’s contextual analogy, he has been injured as a result of Appelle’s silence and other creditors wrongdoings. On February 2006, Appellant’s desperately sought to stop the sale of his house by another creditor unsuccessfully. However, ‘relevant new evidences’ have surfaced in the Washington Post (See Motion on Relevant Evidences) that confirm the fact that Appellant is a victim of predatory lending and mortgage fraud.
Also, according to an article entitled Mortgage fraud seen as prolonging U.S. housing slump, by Bob Ivry of Bloomberg News published on April 26, 2007 states that, "Misstatements about employment and income are being made every day," said Robert Russell, counsel to the director of the Office of Thrift Supervision, which oversees savings and loans. "The brokers are just putting down on paper what the underwriters would require.” The above mentioned article substantiate what Appellant’s has been arguing in his pleadings and motions.
The whole purpose of the law is that New Century Mortgage, Chase Home Finance or Deuthsche National Trust Company are responsible for the harm that arise out of their act. It should not fall on the Appellant, the innocent victim of that act who have acted timely to protect his property interests.
Collateral Order Doctrine
Appellant is seeking a review at the First Circuit, Court of Appeals, according to 28 U.S.C. 1291 and 28 U.S.C. 1292, because of the irrefutable facts that Appellee and other creditors failed to respond to his timely TILA notice of rescission and the Mortgage Fraud issue as a defense to foreclosure.
The Supreme Court of the United States delineated the test for the availability of interlocutory appeals, called the collateral order doctrine, for United States federal courts in the case of (Lauro Lines s.r.l. v. Chasser et al., 490 U.S. 495 (1989), (Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949)), holding that under the relevant statute (28 U.S.C. § 1292) such an appeal would be permitted only if:
1. The outcome of the case would be conclusively determined by the issue
The Order of the District Court of May 9, 2007 conclusively states that it lacks jurisdiction to even consider the requested stay.
2. The matter appealed was collateral to the merits
As Massachusetts is a non-judicial foreclosure jurisdiction, Appellant will lose his rights of due process, if an entry for a stay by this Court is not granted because the sale of his home will be irreversible and render any subsequent and pending legal actions moot.
3. The matter was effectively unreviewable if immediate appeal was not allowed
The right of Appeal will be 'irretrievably lost' if immediate review is not available and granted.
CONCLUSION
Appellant cannot undo the damages that preceded. But, however harsh it may seems, the law provides Appellant with the right of rescission if he catches any technical violation within 3 years of the signing of the loan documents. Thus, Appellant’s TILA rescission notice was timely sent to Appellee and other creditors on September 21, 2006.
In the marble façade of the Supreme Court, the words one sees are “Equal Justice Under Law”.
Therefore, Appellant’s right of rescission has precedence, negated any foreclosure actions and voided the security interest in his property.
For that matter, Chase Home Finance [cannot be allowed]:
1. To profit from the Predatory Lending practices that it inherited from New Century Mortgage.
2. To remain ‘silent’ on the issues of mortgage fraud and TILA rescission.
3. To continuously defying, trampling and usurping Appellant’s rights and the rule of law.
Respectfully Submitted,
Pierre R. Augustin, Pro Se
28 Cedar Street, #2, Lowell, MA 01852,
Tel: 617-202-8069
# # # # # # #
Qualified Written Letter Sent to Chase Home Finance and Deutsche National Trust Company
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 limitations and 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, MPA, MBA
617-202-8069
# # #
WHAT IS AN ILLEGAL FORECLOSURE?
1. IF YOUR FORECLOSURE DOES NOT FOLLOW ALL OF THE STEPS REQUIRED BY LAW, THEN YOUR FORECLOSURE WILL NOT BE A VALID AND LEGAL FORECLOSURE.
2. IF YOUR FORECLOSURE IS STARTED BY THE WRONG LENDER, THEN YOUR FORECLOSURE IS ILLEGAL. (Make sure the lender on your deed of trust is the same lender foreclosing on your home. If not, then there must be a recorded assignment transferring the loan to the new lender before that lender can start the foreclosure)
3. IF YOUR FORECLOSURE IS STARTED EVEN THOUGH YOU ARE NOT BEHIND ON YOUR PAYMENTS (Yes, this happens!), THEN YOUR FORECLOSURE IS ILLEGAL.
4. IF YOUR FORECLOSURE IS STARTED BASED ON THE PROMISSORY NOTE ONLY, AND NOT THE DEED OF TRUST, THEN YOUR FORECLOSURE IS ILLEGAL (UNLESS THEY HAVE ALREADY SUED YOU ON THE NOTE, OBTAINED A JUDGMENT AND THEN STARTED A FORECLOSURE ACTION).
5. IF THE FORECLOSURE ON YOUR HOME IS THE RESULT OF A PREDATORY LOAN, YOUR FORECLOSURE MAY BE ILLEGAL.
6. IF YOU ARE NOT GIVEN AN OPPORTUNITY TO APPEAR AT YOUR FORECLOSURE HEARING AFTER FILING YOUR RESPONSE AND PAYING YOUR FEE, THEN YOUR FORECLOSURE IS ILLEGAL.
7. IF THE COURT DOES NOT ISSUE AN ORDER AUTHORIZING THE SALE OF YOUR HOME AT LEAST SEVEN DAYS BEFORE THE SALE DATE, THEN YOUR FORECLOSURE SALE IS ILLEGAL UNLESS IT IS RESCHEDULED TO A TIME AT LEAST SEVEN DAYS FROM THE ORDER.
# # #
Predatory Lending
These are some of the abusive practices you will experience from a predatory lender:
Terms, Interest Rate and Fees are Increased at Closing (bait and switch) Excessive Fees - Unnecessary Product - Excessive Kickbacks To Brokers Mandatory Arbitration - Abusive Prepayment Penalties - Loan Flipping Steering & Targeting
NOW FOR THE GOOD NEWS!
Federal Law provides protection against abusive and insensitive lending practices. Furthermore, the law provides for very stiff penalties for lenders who violate such laws.
IF YOU WANT TO KEEP YOUR HOME, ARM YOURSELF WITH AN UNDERSTANDING OF THE PROTECTIONS UNDER THE FOLLOWING:
The Truth in Lending Act (TILA)
The federal Truth In Lending Act was originally enacted by Congress in 1968 as a part of the Consumer Protection Act to protect you, the homeowner. Under TILA a homeowner has a right to rescind a loan secured by his or her primary residence. This includes home equity loans and home improvement loans and refinances, whether a first or second mortgage, so long as the money was not used to purchase the home. Under this Act, the homeowner must be provided with a notice of the right to cancel. The lender must have a notice signed by you notifying you of this right to cancel; otherwise the lender has not complied with this federal law.
THIS CAN BE FOUND ONLINE OR AT THE LIBRARY IN FEDERAL LAW: TITLE 15 U.S.C. SECTION 1601 et. seq READ IT!!!!!!!
You, the homeowner have a right to rescind your loan up to three business days after the transaction and an extended right to rescind the loan for up to three years (that’s right folks, you can cancel your loan up to three years later) if you’re not given a notice of the right to cancel the loan, OR if you did not receive notice with all of the required material disclosures. Oh it’s a stiff penalty, but it’s your right!! TILA also requires lenders to disclose the terms of loans in an understandable manner. The “National Consumer Law Center's Truth in Lending” manual provides detailed information on how TILA can be used to CHALLENGE predatory loans.
Sounds a little like poetic justice to me! Send your lender (by certified mail) your rescission notice pointing out the violations under TILA, HOEPA AND RESPA. This is federal law so take full advantage of it! Get the picture?
Home Ownership and Equity Protection Act (HOEPA)
The Home Ownership and Equity Protection Act, is an amendment to TILA. This section of law covers certain high rate home equity loans. In addition to notice of the right to cancel and other disclosures required by TILA, if a loan is covered under HOEPA, lenders must provide borrowers with additional disclosures of the “annual percentage rate” (APR) and monthly payment three days prior to closing. These disclosures must also include provisions telling the borrower that they are not required to sign the loan agreement simply because they received the disclosure statements, and they may lose their home if they do not meet their obligations under the terms of the loan. In addition to the disclosure requirements, HOEPA prohibits the inclusion of certain terms in the loan contract. A loan covered under HOEPA may not include the following:
1. Terms which increase the interest rate in the event of default. If you fall behind on your mortgage payment, they cannot increase the interest rate.
2. Balloon payments prior to ten years. The lender cannot put a stipulation in your loan that requires the total amount of your loan to be paid off in the first ten years or even a payment that is much larger than your regular monthly payment.
3. Negative amortization. If the amount of your monthly payment is not enough to cover the interest payment on your loan, the “shortage” is added to your loan balance. So with each monthly payment you make, your loan balance goes up instead of down. This type of loan violates federal law.
4. No prepaid payments. At closing, the lender cannot roll any payments into your loan. This would result in additional interest charged on interest itself, which is prohibited by state and federal usury laws.
5. Extending credit to individuals without regard to their ability to repay the loan. This is a big one folks! A lender cannot put you in a loan based on fictitious income information that was grossly exaggerated in order to make it appear that you qualified for the loan. This is an illegal practice prohibited by state and federal law and a very common abuse perpetrated on the elderly.
6. Disbursement of funds payable solely to a home improvement contractor. On a home improvement loan, the lender cannot pay the contractor directly. The check must be made solely to the homeowner or made to the homeowner and the contractor together.
7. Most prepayment penalties are also prohibited.
If you are facing foreclosure and your loan is less than three years old, you are still protected under federal law! Violations of HOEPA's disclosure provisions and inclusion of prohibited contract terms will make your lender liable to you for actual damages, statutory damages and attorney fees and costs. In addition, there are special enhanced damages, of finance charges and fees paid by the consumer, for material violations. HOEPA violations are also subject to TILA's extended right to rescind. Assignees (if your loan is sold to another lender) of loans covered under HOEPA are liable for all claims and defenses with respect to the assigned mortgage that the consumer could assert against the original lender on the loan, except to the extent of certain limitations on damages. These laws are for your protection and can save your home, use them!!!
Real Estate Settlement and Procedures Act (RESPA)
Among other provisions, the Real Estate Settlement and Procedures Act prohibits the payments of unearned fees and kickbacks. A lender kickback to a mortgage broker for making a referral is forbidden. The remedy for violation of this provision is treble (three times the amount) damages and attorney fees.
State Unfair and Deceptive Acts and Practices Laws (UDAP)
Many of the abusive practices and loan terms found in predatory mortgage loans can be challenged under state unfair and deceptive acts and practices (UDAP) laws. If a state's UDAP statute covers the type of transaction or the creditor involved, advocates may bring claims for practices such as repeated and unnecessary refinancing ("flipping") of loans, making unaffordable loans to consumers to acquire the equity in the property, or misrepresenting the loan terms. Excessive fees and costs, and other terms that are disadvantageous to the borrower may be challenged as well.
Other Laws
In addition, warranty law, usury, unconscionability, breach of fiduciary duty, fraud, and contract law have remedies which may prove helpful in challenging abusive loans. Other laws, including the Equal Credit Opportunity Act and the Fair Housing Act, have also been used to challenge these practices.
Introduction to the Mortgage Servicing Scam
• These are not "predatory lenders." These companies do not loan money. They operate in the lending
industry after-the-fact. They take on a function that a lender doesn’t want - the backroom functions of
handling payments, escrow accounts, annual statements, dealing with borrowers, collections, etc. The
perpetrators of the loan servicing scam acquire the servicing rights to loans that other companies have
already made. (Loans that were deliberately constructed by predatory lenders are ideal for processing
through servicers that specialize in aggressive collections or rapid foreclosure processing, but the loan
servicing scam can be operated against any mortgage loan if the servicer acquires the rights from the lender.)
• These scams are designed and deliberately operated. These situations are not errors, mistakes or
situations where a servicer’s managers or employees failed to do their job. Their systems are well-designed
and state-of-the-art in terms of analytical technology that helps them choose and process their victims.
These scams generate enormous profits from a business that is difficult to run, people and litigation
intensive and normally only marginally profitable. Many have failed and been acquired (Fairbanks bought
several).
• You, the borrower are not their customer. Lending companies and investors are their customers. As a borrower being "serviced" in the scam, you are simply one of millions in an ever-growing pool of what the financial services industry deliberately labels as "sub-prime" borrowers waiting to be taken advantage of.
• They have almost unlimited legal resources. If you had the financial resources to have effective legal
representation and the documentation to challenge them, they would turn their attention to easier targets. Of course, because most sub-prime borrowers are not well off and don’t have an attorney, you’re a likely target.
• They have leverage and information and will prey on your fears. The fear of possibly losing your
home is the key that unlocks your bank account for them. They know almost everything about you
financially and even from an employment and income basis. They are made aware of your inquiries into other lenders about refinancing even without a request for a payoff and that shopping may lead them to target you before you can get out of the loan you’re in.
• They are experts with millions of successful cases behind them. The loan servicing industry, including those who founded and are running the servicing scam companies, helped craft the "standard" loan documents in widespread use. They are written entirely for the protection of the lending industry, not the consumer. That situation allows them to manipulate their processes and procedures to push you into a position where they can take funds from you or ultimately take your home, often within the terms and conditions of the loan. Some do go beyond the terms or even break the law and aren’t stopped because the borrower does not actually understand the agreement they signed or the laws and regulations.
- When the servicer decides to manipulate the date the payment is received in order to artificially
create a late payment.
- When the servicer applies part of the payment to something other than principal and interest and
creates a partial late payment or deficiency.
- When the servicer decides to "force place" an insurance policy on the property by claiming the
homeowner has not provided proof of insurance.
- When the servicer pays your property taxes late, then adds their late penalty to your account
without your knowledge.
- Any or all of those processes result in at least one month of the account being past due and a negative note is made in the credit report (which effectively prevents the borrower from refinancing). It also helps the Private Mortgage Insurance carrier keep the policy in effect on the loan, which is why these insurance companies have investments in servicing companies in the first place – a late payment or two allows the lender to keep the insurance in force.
- IF the borrower has anything more than about 10-15% equity in the property, it is to the servicer’s
advantage at this point to not aggressively attempt to collect. In fact, if the borrower makes contact, the servicer will engage in delay tactics to avoid resolving the problem in time to prevent default. If the equity position is considerably less than 10%, the servicer does not have as much leverage, nor is the opportunity as great and they will typically be more aggressive in collection efforts and more willing to keep the loan in force.
- In the case of force-placed insurance, it is to the servicer’s advantage to ignore the borrower and any proofof insurance as long as possible, again to keep the borrower’s credit status in a negative light and to maintain their relationship with the insurer they contract with. These policies are extremely profitable because they provide absolutely no coverage for the homeowner. They protect ONLY the value of the loanif the property is destroyed.
- If the servicer has analyzed the opportunity and marked the property for default and recovery, the next payment received will be rejected as being insufficient. If it is accepted, the application of the funds leaves the loan sixty days past due. Typically, the scam now moves toward formal legal notice of acceleration in order to coerce the borrower into signing a highly-profitable forbearance agreement to somehow "save the home." The servicer rolls thousands of dollars in penalties and an incomprehensible combination of legitimate and illegitimate fees into the agreement and the homeowner is left with no choice but to sign it or lose their home. The amount demanded will be calculated to take as much of the homeowner’s equity as possible.
- If the homeowner decides to sell the property to get out of the situation and take their equity, they will find the payoff amount (which in the last month of the scam will take longer to get than the amount of time left before foreclosure) strips them of their equity. That combined with their artificially-damaged credit rating helps keep the victim trapped.
- If the borrower cannot pay the amounts demanded in the forbearance agreement, the servicer will have one of their network of specialized attorney firms foreclose and the property will be sold, typically at a county auction or through their real-estate network.
- If the borrower signs the agreement, they will soon be recycled through the process with yet more late payments and fees. But in the terms of the forbearance agreement, they may find they have signed away any legal protections they may have already had, including the right to sue the servicer for fraud or misrepresentation.
- In the end, if the homeowner cannot afford competent legal representation to stop this fraud, they lose their equity and in many cases, their home.
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,
it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA
P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!
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