Civil Action 5

http://rcxloan.com/Civil_Action_Motion_5.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?”

----------------------------------------------------

United States District Court District of Massachusetts

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

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S (DanversBank) MOTION TO DISMISS WITH SUPPORTING AUTHORITY

CERTIFICATION OF PERSONAL CONSULTATION
Plaintiff hereby certifies that on July 7, 2006 he hand delivered to the United States District Court of Massachusetts and has followed Rule 7.1(a)(2) prior filing his Memorandum of point and authorities in opposition to defendant’s motion to dismiss.

1. Emancipation Redress

"And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robberies or enemies, any and every method of protecting ourselves is morally right.”
Quoted on page 17 in Stephen P. Halbrook -- That Every Man Be Armed: The Evolution of a
Constitutional Right, published in 1984 by The University of New Mexico Press and The Independent Institute.

Your Honor, in America, no one is considered to be above the law. The United States Constitution is considered the supreme law of the land both because of its content and because its authority is derived from the people.

Plaintiff strongly believes in the transparency of the judicial system in the United States of America to uphold the law in the search of Justice. For, it is the only forum whereby an average ‘Joe’ citizen like myself who never had any infraction with the law, was left with the only viable option of bankruptcy (as self-defense) to protect his property rights without money, status and political connection in seeking the emancipation and the redress from the violation of the law by defendants’ powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.

Intuitively, plaintiff recognizes that he is facing lawyers that are well schooled with an in-depth knowledge of the law and various courtroom strategies that he lacks. Although not a lawyer or pretending to be one, plaintiff action is symmetrical to many pro se individual from the early settlers in the state of Massachusetts who could not afford expensive legal representation in the search of fairness, equal protection and justice under the law.

Unequivocally, the paramount reason for plaintiff complaint against the defendants rest on the principle of Emancipation and Redress which are intertwined with his property rights as "the guardian of every other right". Thus, plaintiff arguments are based on the following Rule of Law and others as deemed appropriate:

1) 1st Amendment, "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances."

2) 5th Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law”

3) 7th Amendment, “…The right of trial by jury shall be preserved.”

4) 14th Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5) Natural Rights, “Weakness allures the ruffian, but arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding citizens deprived of the use of them, and the weak will become a prey to the strong.” — Thomas Paine

6) Common Law, In Beard v. U.S.(158 U.S. 550, 1895), the Court approved the common law rule that a person "may repel force by force" in self-defense, and concluded that when attacked a person "was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force" as needed to prevent "great bodily injury or death."

7) Pro Se Litigants, “Courts are particularly cautious while inspecting pleading prepared by plaintiffs who lack counsel and are proceeding pro se. Often inartful, and rarely compose to the standards expected of practicing attorneys, pro se pleadings are viewed with considerable liberality and are held to less stringent standards than those expected of pleadings drafted by lawyers”. (Antonelli v. Shehan, 81 F. 3d 1422, 1427 (7th Cir. 1996)). Also, “parties appearing pro se are allowed greater latitude with respect to reasonableness of their legal theories (Patterson V. Aiker, 111 F.R.D. 354, 358 [N.D. GA 1986]) and according to section D of Rule 11 of the Federal Rule of Civil Procedure.

2. F.R.Civ.P. 12(b)(6) – Plaintiff’s did state a Claim upon which relief can be granted
The facts and circumstances that brought the plaintiff to court against “defendant (DanversBank)” are cited on (¶ 17-27) of Verified Complaint. By invoking F.R.Civ.P. 12(b)(6), defendant is suggesting that plaintiff’s factual allegations must be taken as true for the purpose of the court ruling on the motion. Since defendant’s motion does not replace the trial, real and factual issues based on circumstantial evidence and prior conclusion should be drawn favorably for the plaintiff. Since there are matters outside the complaint allegations, then this motion could be viewed as a “Summary Judgment”. Also, DanversBank counsels and DanversBank violated 18 U.S.C. § 241.

The issue is covered by a Rule of law of F.R.Civ.P. 12(b)(6) which states, if, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Analysis - The fact helps to prove that when considering defendant’s motion, the court must construe the factual allegations in the light most favorable to plaintiff with all doubts resolved in the pleaders favor and the allegations taken as true. The purpose of (¶,17-27) of Plaintiff’s verified complaint were to give defendant fair notice of plaintiff’s claimed and the rule of law for basing the argument. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). With regard to Fed. Rule Civ. P 12(b)(6), court should dismiss a suit under FRCP 12(b)(6) only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that entitled him to relief. Conley v. Gibson, 355 U.S. 41, 45-48 (1957). The 18 U.S.C. § 241 statute specifically prohibits individuals from conspiring to violate (14th Amendment) federally protected rights and privileges guaranteed by the Constitution and laws of the United States.

The purpose of a motion to dismiss under FRCP 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. It is not a procedure for resolving a contest about the facts or the merits of the case. 5A Wright & Miller, Federal Practice and Procedure § 1356 (West 1990). A Rule 12(b)(6) motion allows a defendant to challenge the legal sufficiency of a complaint without subjecting itself to discovery. Rutman Wine Co. v. Ernest and Julio Gallo Winery, 829 F.2d 729 (9th Cir. 1987). In reviewing the sufficiency of the complaint, the issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims asserted. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Such a motion is viewed with disfavor and is rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986), cert. denied, 485 U.S. 940 (1988). Only where the pleading under attack fails to meet the liberal requirement of Rule 8(a) for a short and plain statement of the claim showing that the pleader is entitled to relief would the pleading be subject to dismissal under Rule 12(b)(6). 5A Wright & Miller, Federal Practice and Procedure § 1356 (West 1990). The rule also state that a dismissal under failure to state a claim upon which relief can be granted would have to be "treated as one for summary judgment", and "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56" as stipulated in Fed Rule Civ. P, Rule 12(b). Then, in the absence of given plaintiff the opportunity to present sworn affidavits as well as the opportunity to conduct some kind of discovery against defendants and to request admissions and conduct interrogatories, plaintiff reaches the conclusion that justice will not be served based on the notion that the Fourteenth Amendment to the Constitution requires that plaintiff be allowed his Due Process rights to prove these claims by a preponderance of the evidence. Plaintiff has the legal right, and a moral duty, according to the constitution and the 7th amendment to present his evidence to a jury and let them decide the outcome based on the finding of fact and the principle of equality and fundamental fairness.

Conclusion - From the analysis, plaintiff comes to the Conclusion that based on the rule of law, he has satisfied the burden of stating a claim against defendant. Plaintiff’s complaint need not alleged any specific wrong per se; rather it must merely notify the defendant of the nature of the claim and state the ‘Relief Sought’. Plaintiff also alleges that all defendants are liable for damages by virtue of the violation of Federal and State Law. Also, the interest only payment option was extended by DanversBank for 1 year which was not over when the service of the loan was transferred into their collection department and plaintiff had not missed 3 payments before the foreclosing proceeding had begun. Hence, defendant’s motion to dismiss should be denied.

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3. Plaintiff’s property was exempted according to 11 U.S.C. §541(1), 11 U.S.C. §522(b)
The facts and circumstances that brought the plaintiff to court were the result of DanversBank ‘deceitful acts and declarations’ and total disregard and illegality uses of the rule of law forced plaintiff in bankruptcy to protect his property rights. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) (requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home)). In the bankruptcy filing, plaintiff did list his house as exempt according to 11 U.S.C. §522(b). Plaintiff’s property listed as exempt has not been administered by the Trustee. Also, upon a phone conversation held with the office of the trustee on March 14, 2006, plaintiff was told that the Trustee has nothing to do with his property and to consult an attorney.

The issue is covered by a Rule of law 11 U.S.C. §541(1), 11 U.S.C. §522(b) and based on the Federal Rule of Bankruptcy Procedure of Rule 5009. Closing Chapter 7 Liquidation, which states, If in a chapter 7, chapter 12, or chapter 13 case the trustee has filed a final report and final account and has certified that the estate has been fully administered, and if within 30 days no objection has been filed by the United States trustee or a party in interest, there shall be a presumption that the estate has been fully administered.

Analysis – The fact helps to prove the rule since on April 17, 2006, the Trustee filed a Trustee’s Report of No Distribution states as follows: “…has received no property nor paid any money on account of the estate except exempt property, and diligent inquiry having been made, trustee states that there is no nonexempt property available for distribution to creditors. Pursuant to FRB 5009, trustee certifies that the estate is fully administered and requests that the report be approved and the trustee discharged from any further duties. (Entered: 04/17/2006 at the United States Bankruptcy Court, District of Massachusetts)”. Also, the usual ground for abandonment is that the property is of no value to the estate. No actual hearing is required as long as the trustee gives proper notice, provided no party in interest makes a timely request for a hearing. Also, the bankruptcy court may order the trustee to abandon property upon the motion of a party in interest. 11 U.S.C. §554 (b). Once the property is abandoned, title reverts to the debtor.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rules of law mentioned above are in order and the rules do apply to the facts and circumstances. Hence, defendant’s motion to dismiss should be denied.

4. Plaintiff has stated a Cause of Action against Defendant
The facts and circumstances that the defendant (Commonwealth) is now the holder of the DanversBank Mortgage by assignment [which is in violation of Section 363(n) collusive, and bankruptcy rule 9019 and code § 549(a) since the assignment of the note was not authorized by theBankruptcy Code or by court action; Defendant (Commonwealth) had actual knowledge of the voidability of the assignment and was fully aware of plaintiff’s bankruptcy status (plaintiff is unaware of the details of the assignment) and defendants’ actions are in contempt of court and a willfull violation of the stay by recording the mortgage note assignment] dated on March 9, 2006 and recorded in Book 19994, Page 290. DanversBank’s default judgment was obtained in violation of 14th Amendment (without prior notification and hearing, due process and court order to collect the rent from the management company that the plaintiff had a contract with. Defendant forced plaintiff to seek default remedy against his will and carrying out foreclosure procedure that violated the rule of law of the United States of America, led to the invasion of plaintiff right to privacy, bullying the plaintiff wife which caused her to move out-of-stated by invading plaintiff privacy in discussing plaintiff’s confidential business matters with his wife, inflicted emotional harm, separation from children and loss of consortium as well.(emphasis added)

The issue is covered by a Rule of law under the US CODE: Title 42, 1983; Civil action for deprivation of rights, U.S. Constitution’s 1st Amendment, 5th Amendment, 7th Amendment, 10th Amendment and the 14th Amendment (‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’) as well as Massachusetts Law on Predatory Lending.

Analysis - The fact helps to prove that the plaintiff alleged unequivocally that the defendant(s) has (have) deprived him of his rights and privileges under the constitution and Laws of the United States. The rule requires that plaintiff should have been notified or be given an opportunity to be heard in court and not be forced into bankruptcy by DanversBank as described in (¶ 12 to 27) of verified complaint. Defendant also violated of Massachusetts Law, Chapter 183C, Section 3 which requires that a creditor may not make a high-cost home mortgage loan (to plaintiff) without first receiving certification from a counselor with a third-party nonprofit organization approved by the United States Department of Housing and Urban Development, a housing financing agency of this state, or the regulatory agency which has jurisdiction over the creditor, that the borrower has received counseling on the advisability of the loan transaction. A high cost home mortgage loan originated by a lender in violation of this section ‘shall not be enforceable’. At or before closing a high cost home mortgage loan, the lender shall obtain evidence that the borrower has completed an approved counseling program. Also, according to Massachusetts Chapter 183C, Predatory Home Loan Practices, Section 5: A high-cost home mortgage loan shall not contain any provision for prepayment fees or penalties.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Plaintiff has sufficiently alleged facts necessary to prove each element of his causes of action. Also, according to Massachusetts Chapter, 183C, Section 15: (a) Any person who purchases or is otherwise assigned a high-cost home mortgage loan shall be subject to all affirmative claims and any defenses with respect to the loan that the borrower could assert against the original lender or broker of the loan; a borrower acting only in an individual capacity may assert claims that the borrower could assert against a lender of the home loan against any subsequent holder or assignee of the home loan as follows (borrower below is synonymous to plaintiff):
(1) [A borrower may bring an original action for a violation of this chapter in connection with the loan within 5 years of the closing of a high-cost home mortgage loan;]
(2) A borrower may, at any time during the term of a high-cost home mortgage loan, employ any defense, claim, counterclaim, including a claim for a violation of this chapter, after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the debt arising from the home loan has been accelerated or the home loan has become 60 days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan.
(c) This section shall be effective notwithstanding any other provision of law; provided, that nothing in this section shall be construed to limit the substantive rights, remedies or procedural rights available to a borrower against any lender, assignee or holder under any other law. The rights conferred on borrowers by subsections (a) and (b) are independent of each other and do not limit each other. Thus, defendant motion to dismiss should be denied.

5. Plaintiff’s Defense of Property Rights in Response to Defendant’s 2nd ¶ of page 2 of 7
The facts and circumstances that brought the plaintiff to court is that Defendant violates his right to be heard. Plaintiff had pursued remedies from Department of Urban and Housing Development, his Mortgage company in terms of Refinancing, Danversbank itself, the Attorney General Office, the Consumer Protection Division of Massachusetts, Senator Edward M. Kennedy, Congressman Marty Meehan, Community Team works, the Small Business Administration and so many other agencies in hope to find some kind a way to alleviate the situation. In all instances or for the most part, plaintiff was told to speak to the Bank in question, but DanversBank refused to meet with him but suggested that he filed for Bankruptcy as a default remedy. Plaintiff exhausted all avenues and was forced into bankruptcy in order to protect his property rights. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home)).

The issue is covered by a Rule of law the Common Law which is analogous to the plaintiff’s dilemma as follows:

In Beard v. U.S. (158 U.S. 550, 1895), the Court approved the common law rule that a person "may repel force by force" in self-defense, and concluded that when attacked a person "was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such a way and with such force" as needed to prevent "great bodily injury or death."

Analysis – The fact helps to prove the rule of natural right of self-defense which is part of human nature in protecting life, liberty or property. Plaintiff could not have said it better than Thomas Paine, “Weakness allures the ruffian, but arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding citizens deprived of the use of them, and the weak will become a prey to the strong.” Therefore, the only ‘arms’ the plaintiff had to repel the undeniable violations of plaintiff’s civil rights, individual rights, due process and natural rights was to file for bankruptcy protection. The transcript under oath of the meeting with the Trustee will ascertain and testify to the fact that plaintiff was forced into bankruptcy without his will. Then, in the absence of filing for bankruptcy, plaintiff would not be in a position today to seek emancipation and redress from the court as described in the first amendment of the United States Constitution.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the analogous rule of law does apply to the fact. Also, issue of fact regarding notice of the default judgment proceeding obtained by DanversBank remained in dispute and required further proof at trial. Hence, defendant motion to dismiss should be denied.

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6. Plaintiff’s never had the opportunity to fully litigate the matters cited in Count I and II on Defendant’s page 2 to 5
The facts and circumstances that the motions in DanversBank’s Exhibit 4 had no ‘LEGAL INFLUENCES’ or ever been litigated. At that hearing (the issue was relief from the stay), the judge instructed the counsel of DanversBank “to contact Chase Mortgage to see if resolution of their second priority status can be confirmed” as illustrated in DanversBank’s Exhibit 5. In the absence of a full adversarial proceeding, see Bankruptcy rule 7001 et seq., a res judicata determination of plaintiff’s motion are inappropriate. See In re Gellert, 55 B.R. 970, 975 (Bankr. D. N.H. 1985).

The additional fact and circumstances against DanversBank are based on ‘causation’ that led to DanversBank’s violation of plaintiff’s constitutional rights (4th, 5th & 14th Amendment) by acting illegally since default obtained and argued upon by the counsel of DanversBank prior the bankruptcy hearing for the seizure of plaintiff’s property was obtained without notice or with a prior hearing and no opportunity to be heard in opposition was given to plaintiff. DanversBank default judgment against plaintiff is clearly erroneous that not only would produce manifest injustice but also violated the rule of law of due process. Plaintiff’s issues or claims raised here or in any previous complaint or memorandum have never been litigated. (FUENTES v. SHEVIN, 407 US 67 (1972)) and Sniadach v. Family Finance Corp, 1969. (U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989) ( requiring notice and adversarial hearing for property forfeiture actions to comply with due process, when the property is a home).

The issue is covered by the Rule of law of the 14th Amendment in regards to DanversBank violations in obtaining an illegitimate judgments. It is also based on the principle of non-core proceedings and rule 9014, contested matters. Automatic Stay, § 362. Subsection 362(d) of the Bankruptcy Code provides as follows: "On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay . . . such as by terminating, annulling, modifying, or conditioning such stay . . . ." 11 U.S.C. § 362(d). A request for relief from the stay is a "contested matter" commenced by a motion and governed by Bankruptcy Rule 9014. Fed. R. Bankr. P. 4001. Contested matter proceedings are generally designed for the adjudication of simple issues, often on an expedited basis. (Matter of Transamerican Natural Gas Corp., 978 F.2d 1409, 1416 (5th Cir. 1992); see 9 Collier on Bankruptcy 9014.05 (15th ed. 1996)

Analysis - The facts helped to prove that the issue of constitutionality and that of relief from the automatic stay are two distinctly different types of issues or claimed. That the Danversbank's claim may be at issue does not mean that the stay relief proceeding is the proper forum to adjudicate the claim. "The validity of the claim or contract underlying the claim is not litigated during the hearing." Johnson v. Righetti (In re Johnson), 756 F.2d at 740; see also Ellis v. Parr (In re Ellis), 60 B.R. 432, 435 (B.A.P. 9th Cir. 1985). The claim against DanversBank for violating plaintiff’s due process in obtaining default judgment of seizure of property that could have been raised as non-core issues in bankruptcy proceedings are not neither barred by res judicata nor has plaintiff been given a full and fair opportunity to litigate the claim(s) or issue(s) in the complaint in any previous court. Bethlahmy, IRA v. Kuhlman (In re ACI-HDT Supply Co.), 205 B.R. 231 (B.A.P. 9th Cir. 1997). (in re Montgomery, 262 B.R. 772 (BAP 8th Cir. 2001)). As a matter of federal practice, a default judgment will not support the application of issue preclusion because none of the issues resolved in the judgment will have been actually litigated. (Simmons Masonry v. Barton (In re Barton), 272 B.R. 61 (N.D.N.Y. 2002) (Debtor’s prior confession of judgment did not preclude him from subsequently litigating issue bearing on breach of fiduciary duty and defalcation because there was no litigation that led to the confession, and, therefore, no identity of issues).

Non-core matters are related matters, which include the plaintiff’s causes of action that could have been brought in state or federal court had there been no bankruptcy case. Bankruptcy judge may hear the proceeding and must submit proposed findings of fact and conclusions of law to district court for final disposition and for de novo review if there is any objection 28 USC §157(c)(1) (any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters). Bankruptcy court can’t just enter a final order in these cases because that exceeds the power of the court as a non-Article 3 court.

Separation of core and non-core proceedings creates a distinction between those judicial acts deriving from the plenary Article I bankruptcy power and those subject to general Article III federal court jurisdiction. Lebovits v. Scheffel (In re Lehal Realty Assocs.), 101 F.3d. 272 (2d Cir. 1996) (distinction between core and non-core proceedings is intended to deal with problem of vesting Art. III judicial power in Art. I judges); Hudgins v. Shah (In re Sys. Eng'g & Energy Mgmt. Assocs., Inc.), 252 B.R. 635 (Bankr. E.D. Va. 2000) (discussing importance of "public rights" nature of bankruptcy proceedings to designation of "core" proceedings); Noonan v. Cellu Tissue Corp. (In re Palmer Trucking Co.), 201 B.R. 9 (Bankr. D. Mass. 1996). Action alleging damages from breach of contract and interference with ability of debtor contractor to timely perform under contract, where legitimate dispute existed as to whether debtor was entitled to recover funds claimed due under contract, and resolution of action involved state law determination of defendant's liability under contract, proceeding was not true "turnover" proceeding and therefore did not constitute "core proceeding." Acolyte Elec. Corp. v. City of New York, 69 B.R. 155 (Bankr. E.D.N.Y. 1986), aff'd, 1987 WL 47763 (E.D.N.Y. 1987).

The hearing on a motion for relief from the automatic stay is (1) "merely a summary proceeding of limited effect," (2) "not a proceeding for determining the merits of the underlying substantive claims, defenses, or counterclaims," and (3) "merely a grant of permission from the court allowing the creditor to litigate its substantive claims elsewhere without violating the automatic stay." Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 31-35 (1st Cir. 1994); accord In re Vitreous Steel Prods. Co., 911 F.2d 1223, 1232-34 (7th Cir. 1990); Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985). Although the bankruptcy court is not an Article III court, its jurisdiction is limited by the constitutional standing requirement. United States V. Amoskeag Bank Shares, Inc. (In re Amoskeag Bank Shares, Inc.), 239 B.R. 653, 657 n.3 (D.N.H. 1998). This hearing will not be the appropriate time at which to bring in other issues, such as counterclaims against the creditor on largely unrelated matters. Those counterclaims are not to be handled in the summary fashion that the preliminary hearing under this provision will be. In re Vitreous Steel Prods. Co., 911 F.2d 1231 (quoting H.R. Rep. No. 595, 95th Cong., 1st Sess. 344 (1977), U.S. Code Cong. & Admin. News, 1978, pp. 5787, 6300).

According to the Advisory committee note, relief from the automatic stay is classified as a ‘contested matter’ under rule 9014. An action to avoid lien under section 522(f) is a ‘contested matter’. In re William, 1666 B.R. 615 (Bankr. E.D. Va. 1994). The Supreme Court has also stated that authority given to the Bankruptcy courts under § 105 must be done within the limits of the bankruptcy code. (Gouveia v. Tazbir, 37 F.3d 295, 301 (7th Cir. 1994)) In regards to the hearing that led to the relief from the automatic stay, it is not the appropriate time to cite other issues. The claim validity or contract related to the claim is not litigated during the hearing (Johnson v. Righetti (In re Johnson), 756 F. 2d at 740. (“legislative history of § 362(e) makes clear that counterclaims against creditor seeking to lift stay on largely unrelated matters are not to be handled in the summary fashion required by the expedited nature of the ‘hearing’ proceeding”).

Plaintiff’s claims are NOT Res Judicata - Plaintiff’s property was exempted from the estate. A request for relief from the stay is a “A hearing on a request for relief from automatic stay is a ‘contested matter’ brought on by a motion not by adversary proceeding. (Grella v. Salem Five Cents Savings Bank, 42 F.3d26, 32 C.B.C. 2d 1303 (1st Cir. 1994). “In D-1 Enterprises, Inc. v. Commercial State Bank, 864 F.2d 36 (5th Cir. 1989), noting the two forms of adversary proceedings and contested matters, the court concluded that res judicata does not apply to ‘contested matters’ which employ a ‘quick motion-and-hearing’ style.” The Seventh and Fifth Circuits have held that non-core proceedings cannot be given res judicata effect because the bankruptcy court cannot enter a final judgment. (Barnett v. Stern, 909 F.2d 973, 978-79 (7th Cir. 1990); Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 189-90 (5th Cir. 1990), see also I.A. Durbin, Inc. v Jefferson Nat'l Bank, 793 F.2d 1541, 1548 n.8 (11th Cir. 1986). In the case of a judgment entered by confession, consent or default, none of the issues is actually litigated. Only a final judgment that is sufficiently firm can be issue preclusive. (Luben Indus. V. U.S., 707 F. 2d 1037, 40 (9th Cir. 83).

IRS v. Palmer (In re Palmer), 207 F.3d 566 (9th Cir. 2000) (taxpayer who failed to respond to IRS' allegations of fraud in Tax Court was not collaterally estopped from contesting the fraud in taxpayer's subsequent bankruptcy case; in essence, debtor defaulted in Tax Court, and issue of fraud was not "actually litigated"). In FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc), 200 F.3d 43, 54 (2d Cir. 1999), cert. denied, 531 U.S. 924 (2000), the Second Circuit reversed the bankruptcy court's holding that the FCC could not cancel certain licenses. On NextWave's further challenge to the cancellations, the D.C. Circuit held that claim preclusion was no bar because the Second Circuit's decision was based on the bankruptcy court's lack of jurisdiction rather than on the merits of the underlying dispute.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law as cited and outlined above does apply to the fact. Once again, when hearing non-core cases bankruptcy courts may not enter final judgments; they may only offer proposed findings of fact and recommendations of law to federal district court judges. Because bankruptcy courts’ non-core decisions lack finality, actions involving claims that could have been raised as non-core issues in bankruptcy proceedings are not barred by res judicata. (See Sarno, 239 Ill. App.3d at 1046, 608 N.E.2d at 19,; Barnett v. Stern, 909 F.2d 973, 979 (7th Cir. 1990)). Also, the collateral estoppel bar is inapplicable when the claimant did not have a “full and fair opportunity to litigate” the issue decided by the state court. Accordingly, plaintiff can file a federal suit to challenge the adequacy of state procedures. In re A.W. Lawrence & Co., Inc), 289 B.R. 20 (N.D.N.Y. 2003) (commenting that in no event can issue preclusion be invoked against one who was not a party, or otherwise represented, in the prior proceeding [plaintiff does not meet the just mentioned requirement]), citing Thomas v. General Motors Corp, 522 U.S. 238 n.11 (1998). Also, citing Martin v. Ring, 401 Mass. 59, 514 N.E. 2d 663 (1987)(“Preclusive effect should not be given to issues or claims that were not actually litigated in a prior action”).

In 2005, the Supreme Court revisited the doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corporation, 544 U.S. 280 (2005). In Exxon Mobil decision, it was stated that the lower courts have at times extended Rooker-Feldman “far beyond the contourss of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts and superseding the ordinary application of preclusion law pursuant to 28 U.S. § 1783. The Court affirmed that the Rooker-Feldman doctrine was statutory (based on the certiorari jurisdiction statute, 28 U.S.C. § 1257), and not jurisdictional, holding that it applies only in cases "brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."
Rooker-Feldman is inapplicable where the party against whom the doctrine is invoked was not a party to the underlying state-court proceeding. (Johnson v. De Grandy, 512 U.S. 997 (1994)). Plaintiff was not a party (or losers in any state court proceedings) with any secured creditors in any previous state court. Courts recognize exceptions to the bar of the Rooker-Feldman doctrine when a party had no reasonable opportunity to raise the federal claim in the state proceeding. The doctrine does not bar review of a state court judgment that was procured through fraud, deception, accident or mistake. A federal suit is not barred when brought by a party who was not a party in the state court suit which is plaintiff position. Federal jurisdiction over an action does not terminate automatically o the entry of judgment in the state court, nor does §1257 stop a district court from exercising subject-matter jurisdiction. “And today, the Court quite properly disapproves of the District Court’s resuscitation of a doctrine that has produced nothing but mischief for 23 years.” (Supreme Court, No. 05-555, decided February 21, 2006).

The Sixth Circuit recognizes an exception to Rooker-Feldman when the state court judgment was "procured through fraud, deception, accident, or mistake . . . " Sun Valley Foods Co. v. Detroit Marine Terminals, Inc. (In re Sun Valley Foods Co.), 801 F.2d 186, 189 (6th Cir. 1986). Moreover, it has been determined that the Rooker-Feldman rule does not bar a suit in federal court brought by an individual who was not a party to the state court action. See Snider v. City of Excelsior Springs, Mo., 154 F.3d 809, 812 (8th Cir. 1998) (citing Johnson v. De Grandy, 512 U.S. 997 (1994)); U.S. v. Owens, 54 F.3d 271, 274. Several circuits have also recognized an exception to Rooker-Feldman when a federal statute specifically authorizes federal review of a final state court decision. See Plyer v. Moore, 129 F.3d 728, 732 (4th Cir. 1997) (finding Rooker-Feldman does not touch the writ of habeas corpus); Young v. Murphy, 90 F.3d 1225, 1230 (7th Cir. 1993); Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993) ; Blake v. Papadakos, 953 F.2d 68, 71 n.2 (3d Cir. 1992); see also 28 U.S.C. § 2241 (2000) (authorizing federal district courts to review state court decisions in habeas corpus proceedings). Although the doctrine of Judicial estoppel is conceptually distinct from claim and issue preclusion, (affirmative defense), that doctrine does not apply since plaintiff allegations, issues and claims are not intended to make a mockery of justice by asserting inconsistent pleadings, convinced the court to adopt position that are inconsistent or deriving an unfair advantage. If anything, plaintiff is the party facing a milestone in a strange and unfamiliar environment. Hence, defendant motion to dismiss should be denied.

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7. Plaintiff’s has standing in response to Defendant’s last sentence of Count I
The facts and circumstances that Plaintiff is in court is based on the principle of equitable tolling which is a doctrine that allows plaintiff to sue after the statutory time limit has expired if they have been prevented from suing due to inequitable circumstances and plaintiff’s strong believes in the transparency of the judicial system in the United States of America to uphold the law in the search of Justice

The issue is covered by a Rule of law by the Constitution of the United States of America as follows: "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances." — From the 1st Amendment. It is also based on the Rule 6009. Prosecution and Defense of Proceedings by Trustee or Debtor in Possession. With or without court approval, the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal. (emphasis added) Also, it is based on the three constitutional standing requirements as stated above: (1) Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual, imminent, distinct, and palpable, not abstract; (2) Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court; (3) Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

Analysis – The Supreme Court of the United States has stated, “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). As stated there, “The Judicial Power shall extend to all Cases . . . [and] to Controversies . . .” The requirement that a plaintiff have standing to sue is a limit on the role of the judiciary and the law of Article III standing is built on the idea of separation of powers. Allen v. Wright, 468 U.S. 737, 752 (1984). Federal courts may exercise power only “in the last resort, and as a necessity.” Id. at 752. Plaintiff has additional capacity and standing as prescribed by rule 6009 of the Federal Rule of Bankruptcy Proceeding which states that ‘with or without court approval, debtor …may initiate any action …before any tribunal’.

Bankruptcy rules state that (a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. The exception to that rule reflects plaintiff’s situation as stated: (c) Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title. On April 17, 2006, the Trustee filed a Report of No Distribution. Also, if the Trustee does not timely object to a claim of exemption, the property will be deemed exempt, even if there is no basis for the exemption. (Taylor v. Freeland & Kronz, 503 U.S. 638, 643-45 (1992).

The rule 6009 as stated above does not requires plaintiff to have court approval necessarily to bring what plaintiff consider as a natural right as described in Paragraph 1 of Emancipation Redress section E. If motion to dismiss is granted, defendant will ultimately retaliate against plaintiff’s property rights since plaintiff equal protection under the law would be practically nonexistent and that justice will not prevail. Plaintiff needs to conduct discovery to fully trace and to expose all the facts and evidence to the jury. Moreover, plaintiff will suffer an imminent injury from defendant such as the continuing violation of Due Process on his property rights although the defendant’s default judgment is invalid since there was no notice or hearing for plaintiff’s opportunity to be heard prior obtaining the default judgment.

Plaintiff strongly believe that his action is based on merit, facts and circumstances that can be proven favorably in the court of law to obtain a decision to redress his violation of his 1st , 5th, 14th Amendments rights and other relevant Federal and State law upon complaint are based.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law does apply to the fact. Plaintiff alleges that Special damages are due, to be specifically stated at a future date although stated generally, due to the special circumstances of this case and the public policy issues involved. These damages can be pleaded with more particularity after the discovery process is completed. Then, in the absence of denying defendant’s motion to dismiss, plaintiff reaches the conclusion that his constitutional rights and rule 6009 of FRBP would be violated. Hence, defendant motion to dismiss should be denied.

8. Violation of Due Process of Plaintiff’s Property Rights
The facts and circumstances that brought the plaintiff to court in alleging ‘Bad Faith’ (Paragraph 17 of Verified Complaint) is that DanversBank (who has now assigned that 2nd mortgage to Defendant) refused to meet with him to discuss renegotiation of the terms of the contract since plaintiff realized due to the degradation of the social, political and economical situation in Haiti at that time, he would not be able to maintain his contractual agreement and the danger of kidnapping is still an imminent danger in Haiti as described by the Associated Press article of June 27, 2006 (see Exhibit 1) which had prompted plaintiff to dispute the DanversBank’s note terms. Also, while away on a business trip, DanversBank illegally (usurped their authority) by collecting the rent monies of plaintiff’s properties from the management company (plaintiff had a bilateral contract with the Management Company) without notice and hearing before a Judge.

The issue is covered by a Rule of law define by the Constitution of the United States in particular the 5th and 14th Amendments of the Bill of Rights.

Analysis - The fact helps to prove DanversBank did not give plaintiff notice or opportunity for a hearing or simply the opportunity to be heard. The rule requires that DanversBank obtained a Court Order in order for the rule to apply which is contrary to the fact. Then, in the absence of that circumstance, plaintiff reaches the conclusion that DanversBank violated his 5th and 14th Amendments rights.

Conclusion - From the analysis, plaintiff comes to the Conclusion that the rule of law defined by the 5th and 14th Amendment does apply to the fact. At a minimum due process requires that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for a hearing appropriate to the nature of the case Hence, defendant motion to dismiss should be denied.

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