Civil Action 8

http://rcxloan.com/Civil_Action_Motion_8.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?”

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United States District Court - District of Massachusetts
Pierre Richard Augustin, PRO SE )
Plaintiff, )
)
v. ) C.A. No. 06-10368 (NMG)
)
DANVERSBANK, ET AL., ) Memorandum of Law in support of Plaintiff’s
Defendants. ) Motion for Default Final Judgment

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF MOTION FOR DEFAULT FINAL JUDGMENT

CERTIFICATION OF PERSONAL CONSULTATION
Plaintiff hereby certifies that on August 4, 2006 he hand delivered this motion to the United States District Court of Massachusetts and has followed Rule 7.1(a)(2) prior filing his Memorandum of Law in support of Plaintiff’s Motion for Default Final Judgment.

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. However, first and foremost, Plaintiff meditates and relies on the divine guidance of the almighty to provide him with wisdom to dissect and to comprehend the meaning of the law of the land.

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 confronting powerful corporations with unlimited budget represented by the most savvy lawyers on just about equal term.

Intuitively, Plaintiff 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, technical maneuvers and equipped with various inside scoop of courtroom strategies that he lacks. Although not a lawyer or pretending to be one, Plaintiff actions are 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’s memorandum of law is based on defendant, Global Consultants Direct, failure to respond to the summons and complaint properly served by U.S. Marshall (Exhibit 1 and 2) on June 29, 2006 pursuant to Rule 4 of the Federal Rules of Civil Procedure and within the time set forth in Rule 12(a) of the Federal Rules of Civil Procedures. Thus, Plaintiff hereby submits this Memorandum of Law in support of its Motion for Default Final Judgment.

Pursuant to the provisions of Rule 55 A (b)(2), Federal Rules of Civil Procedure, this Court is empowered to enter a default judgment against the defendant for relief sought by Plaintiff in its complaint. Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment. The first step is to obtain a default as filed on July 26, 2006. When Defendant against whom affirmative relief is sought has failed to plead or otherwise defend, Rule 55(a) empowers the clerk of the court to enter a default against the Defendant. (See Key Bank of Maine v. Tablecloth Textile Co., 74 F.3d 349, 353 (1st Cir. 1996)).

I. Factual Background
Plaintiff filed a Complaint against the defendant on February 28, 2006 in the United States Federal District Court for the District of Massachusetts. The Complaint alleges: “This complaint is in response of alleged act of negligence, bad faith and civil conspiracy that Plaintiff discovered and was not previously aware of them as cited on paragraph 33 of pages 17 and 18 entitled Claim III” which is analogous to the principle of equitable tolling (which is a principle of tort law stating that a statute of limitations shall not bar a claim in cases where the Plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period). Plaintiff is seeking relief based on defendant’s violations of Federal & Massachusetts laws on predatory lending and Acts as well as procedures which entitled Plaintiff for relief based on relevant facts, footnote and exhibits submitted by Plaintiff's complaint and outline in this memorandum.

On April 3, 2006, the Court issued a Summons which, in part, notified defendant that it must, within twenty days after service of the Summons, file with the Clerk of Court, an Answer to the Complaint. Defendant, Global Consultants Direct, received service of the Complaint and Summons on June 29, 2006 at 1 P.M.. The United States Marshals Service served the Complaint and Summons upon Global Consultants Direct ‘s place of business in Brockton, Massachusetts.

By the expiration of the twenty-day period on July 19, 2006 as specified on the Summons, the defendant had not filed an Answer to the Complaint with the Clerk of this Court. On July 26, 2006, Plaintiff notified Global Consultants Direct by mail that he has filed and asked the court to enter a judgment by default. Defendant, Global Consultants Direct, did not file for a motion to either extend the time to respond to the complaint or to the default judgment. Defendants neither offered an explanation for his failure to seek any extension of time to respond to the complaint nor provided any justification for his own failure to take action.

II. The Defendant Has Failed to Answer timely to the Complaint and Plaintiff is Entitled to a Judgment By Default
Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure provides that a defendant shall serve its answer to a complaint within twenty days of service. The Summons, issued by the Court on April 3, 2006 and served by a U.S. Marshall on June 29, 2006 upon the defendant, Global Consultants Direct together with the Complaint, notified the defendant of its obligation to file an answer with the Clerk of Court, within twenty days from the date of service.

Twenty days, (Fed.R.Civ.P. 6(a)), from the June 29, 2006 service date was July 19, 2006 excluding the legal holiday of independence Day and no response was filed by that deadline of July 19, 2006. See, e.g., E.F. Hutton & Co., Inc. v. Moffatt, 460 F.2d 284, 285 (5th Cir. 1972). The basic purpose of default judgment is to protect parties from undue delay-harassment.' " Am. Alliance, 92 F.3d at 60 (quoting Baez v. S.S. Kresge Co., 518 F.2d 349, 350 (5th Cir. 1975) (per curiam)). Delay "may thwart Plaintiff's recovery or remedy. It also may result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." 10A Charles A. Wright, et al., Fed. Practice & Procedure: Civil § 2699, at 169
(3d ed. 1998), cited in Davis, 713 F.2d at 916.

Notably, Defendants offered no explanation for his failure to seek any extension of time to respond to the complaint. See McNulty, 137 F.3d at 738 ("the court may find a default to have been willful where the conduct of counsel or the litigant was egregious and was not satisfactorily explained"). Nor did the Defendant provide any justification for his own failure to take action after receiving notice that the Plaintiff has filed with the clerk a notice for entry of default, thereby clearly signaling that Defendant did not take the requisite steps to defend their interests in the litigation.

Where, as here, based on the circumstances describe in this motion, the defendant did not respond to a properly served Complaint and did timely ignore a duly issued and properly served Summons from the United States Federal District Court of Massachusetts, a default judgment, is the appropriate and, indeed, just and only recourse for that matter. See In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987)(where party offers no good reason for late filing of answer, entry of default judgment appropriate); First City Nat'l Bank of Fort Worth v. Cook, 117 F.R.D. 390 (N.D. Tex. 1987)(default judgment appropriate where party served has failed to answer timely). Since the defendant does not appear disposed to follow and to abide by the rule of law of the Federal District Court of Massachusetts, this Court has as the only avenue available to conclude this matter, the entry of a default final judgment against defendant.

Plaintiff believes that Defendant will likely attempt to set aside the final default judgment based on rule 60(b). The existence of probable valid counterclaims does not necessarily constitute a meritorious defense or an establish excusable neglect. (Schwarz v. Thomas 222 F.2d 305, 308 (D.C. Cir. 1955); (De Saracho v. Custom Food Machinery,Inc., 2000 WL 235304, *5 (9th Gr. March 3, 2000), see also, Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir. 1987)). When considering a motion pursuant to Rule 60(b), the court must "strike a balance between serving the ends of justice and preserving the finality of judgments." Baker v. Nemaizer, 793 F.2d 58, 61 (2d Cir. 1986). A motion for relief from judgment is properly granted only upon a showing of exceptional circumstances. United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). "Generally courts require that the evidence in support of the motion to vacate a final judgement [under Rule 60(b)] be 'highly convincing' . . . " Gwynn v. Deleo, WL 125185, at 4 (S.D.N.Y. July 3, 1991) (quoting Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987).

In order to grant a Rule 60(b) motion the district court must make two distinct findings: “a justification for relief [under one of the clauses of the rule] and a meritorious defense.” Olson v. Stone (In re Stone), 588 F.2d 1316, 1319 (10th Cir. 1978), Pioneer Inv. Servs., Inc. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 381, 113 S.Ct. 1489 (1993). In order to make a sufficient showing of a meritorious defense . . . the defendant need not establish his defense conclusively, but he must present evidence of facts that, if proven at trial, would constitute a complete defense." McNulty, 137 F.3d at 740, Pecarsky v.Galaxiworld.com, Ltd., 249 F.3d 167, 173 (2d Cir. 2001).

As such, the defendant will probably claim mistake or omission based on ignorance of the law, failure to follow rules and deadlines which are not bases for relieving the Defendant from a final judgment. See Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997); Dominguez v. United States, 583 F.2d 615, 616 (2d Cir. 1978) (per curiam); Nemaizer, 793 F.2d at 62; United States v. Cirami, 535 F.2d 736, 741 (2d Cir. 1976) ("Cirami I"); Cobos v. Adelphi University, 179 F.R.D. 381 (E.D.N.Y. 1998).

The reason behind the default final judgment is that generally, "the willful conduct by the Defendant of evading the consequences of the acts or omissions is wholly inconsistent with the system of litigation, in which each party is deemed bound by his acts. Aalmuhammed v. Kesten, 2003 WL 118512 (S.D.N.Y. Jan. 14, 2003) (citing cases). See also SEC v. McNulty, 137 F.3d at 739, citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).

Although Rule 60(b)(6) "represents a grand reservoir of equitable power that should be liberally applied," United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977), in order for a court to grant relief from a final judgment under this provision, the Defendant must show that there are extraordinary circumstances justifying relief, the judgment works an extreme hardship. Even if the Defendant shows that his motion to reopen is encompassed by the grounds enumerated in Rule 60(b), he must still show that he possesses a meritorious claim before he can prevail." Cobos, 179 F.R.D. at 389, citing Cirami II, 563 F.2d at 29; Babigian v. Association of the Bar of the Cit of New York, 144 F.R.D. 30, 33 (S.D.N.Y 1992) (citing Lepowski v. United States Dep't of Treasury, 804 F.2d 1310, 1314 (D.C.Cir. 1986)).

There is no doubt that the failure to respond was not only grossly dilatory but willful. The failure to act was simply a total disregard of the most obviously Defendant’s own fundamental obligation to this court. The Second Circuit, which applies a stricter standard, will not "relieve a party of the burdens of a final judgment entered against him due to the mistakes or omission of his attorney by reason of the latter's ignorance of the law or his inability to efficiently manage his case load." United States v. Cirami, 563 F.2d 26, 30 (2d Cir. 1976) (relief denied where counsel allowed default to enter for unknown reasons); see also Schwarz v. United States, 384 F.2d 833 (2d Cir. 1967); Bortugno v. Metro-North Commuter RR, 905 F.2d 674, 676 (2d Cir. 1990)
Even applying the Fourth Circuit's more lenient standard, defendants are not entitled to relief. Unlike the defendant in Augusta, who moved for relief within two weeks of entry of judgment, defendants here are not completely blameless. See also Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 897 (4th Cir. 1987) (affirming denial of relief where party, who never contacted counsel, received process in its mailroom and inexplicably lost papers)

III. The Relief Sought by Plaintiff Should Be Awarded by this Court
When the Court determines that a defendant is in default, the factual allegations of the complaint are taken as true, and Plaintiff respectfully ask this Court to enforce the rule of law for compensatory damages based on the law, punitive damages, rescission of the loan, restitution of ill-gotten gains and statutory damages. Plaintiff is submitting to the Court, together with this Motion, a Default Final Judgment. For the benefit of this Court in determining the remedy to apply in this case, Plaintiff offers the following summary of what it expects its allegations would have shown at a trial of this matter.

1. This Court has jurisdiction of the subject matter of this case (28 U.S.C § 1331, 28 U.S.C § 1332 and 28 U.S.C § 1391)

2. Venues lies properly with this Court.

3. Plaintiff stated a Claim upon which relief can be granted
By not responding timely, Plaintiff’s factual allegations must be taken as true for the purpose of the court ruling on the motion. Also, 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 (¶, 32 & 33 of pages 17 and 18) 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)).

4. Plaintiff has stated a Cause of Action against Defendant based on civil conspiracy
Civil conspiracy of defendant (Global Consultants Direct)('The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to Plaintiff from an act or acts done in furtherance of the common design. . . . In such an action, the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'' (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.)). Defendant’s civil conspiracy and fraud (adding Plaintiff’s wife to the New Century Mortgage loan now owned by Chase in providing false/fraudulent information on a federal mortgage application while she only ‘hold an on call & part-time contracted’ position and benefited from the high fees by charging a higher interest rate to Plaintiff and his wife) caused damages which inflicted emotional harm to Plaintiff, caused separation from children/wife and resulted in loss of consortium

5. Civil Conspiracy and Fraud
Defendants Commonwealth, Allied, New Century Mortgage and Global Consultants Direct added Plaintiff’s wife on the New Century mortgage now Chase by making:
1) a false representation,
2) the person who made that false statement made it knowingly to conceal it
3) the receiver of that statement meaning all parties involved in the refinancing of his property believed that the title was indeed ‘clear’ especially Plaintiff since he was later affected by the civil conspiracy to defrauded him, and the New Century Mortgage’s underwriter and lawyer, Global Consultants Direct covered up as well by withholding Plaintiff’s wife true temporary and on call part-time work status.
4) based on that false and fraudulent statement, the underwriter or whomever at New Century Mortgage either was part of the civil conspiracy or acted upon it which stripped away all the equity in Plaintiff’s property and caused/resulted in predatory lending damages by over financing Plaintiff’s property and all the parties benefited financially from the fraud which left Plaintiff financially at risk with no power to borrow money in the near future,
5) Plaintiff trusted and believed that all the parties involved in the refinancing of his property had a fiduciary responsibility not to deceive him by assuring that the transaction would not be to Plaintiff’s detrimental as it turned out to be (In re Rockefeller Ctr. Props., Inc. Secs. Litig., 311 F. 3d 198, 216 (3d Cir. 2002)).

6. Standing
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 . . .”

C. Explanation of the Default Final Judgment
Plaintiff believes that the Default Final Judgment provides an adequate remedy for the alleged violations and Plaintiff is entitled to judgment by default against defendant.

IV. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court enter a final judgment by default against defendant

PRAYER
WHEREFORE, Plaintiff prays that this Court enter a judgment of default against defendant as provided in the proposed Final Judgment filed with this Motion.

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was delivered in person August 4, 2006 to US District Court, District of Massachusetts, Boston and served by United States Postal Mail, postage upon counsel for the defendant (‘Global Consultants Direct’) mailed on August 4, 2006.

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it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA

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