Civil Action 13 Plus

http://rcxloan.com/Civil_Action_Motion_13_Plus.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 only find out of the defendant, Alen H. Segal, late response of more than 2 months later, beyond the 20 days timeframe, when Plaintiff visited the clerk office on November 9, 2006 to obtain a copy of the Federal Rules of Appeal Procedures (FRAP) for an upcoming Appeal on a ruling by the Bankruptcy court that the plaintiff is preparing to file with this court.]

Plaintiff hereby certifies that on November 10, 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, debtor meditates and relies on the divine guidance of the almighty (Exhibit A (1st Amend. Right)) 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 and his TILA Rescission right filed on September 21, 2006 (or see Exhibit A-19, A-20 & A-21) as self-defense to foreclosure 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, Alen H. Segal, failure to respond within the 20 days timeframe prescribe by the rule of law, which is not 2 months later, to the summons and complaint served by U.S. Marshall. Thus, Plaintiff hereby submits this Memorandum of Law in support of its Motion for Notice of Default 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, and written notice of this action has been given to defendant as set forth in the attached affidavit. Plaintiff moves this Court for entry of a default final judgment as to defendant, Alen H. Segal, upon the complaint heretofore filed and served upon the defendant, in accordance with the provisions of Rule 55(b)(2), Federal Rules of Civil Procedure, and in support thereof shows the Court the following.

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 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 in a Civil Action, which, in part, notified defendant that it must, within 20 days after service of the Summons, (not 2 months as exercised by Defendant) to file with the Clerk of Court, an Answer to the Complaint. Defendant, Alen H. Segal, received service of the Complaint and Summons on August 28, 2006. The United States Marshals Service served the Complaint and Summons upon Alen H. Segal‘s place of business.

By the expiration of the twenty-day period on September 17, 2006 specified on the Summons, the defendant had not filed an Answer to the Complaint with the Clerk of this Court. Defendant, Alen H. Segal, did not file for a motion to extend the time to respond to the complaint.

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 (20 days) twenty days of service of the latter. As noted above, the Complaint in this case was filed on February 28, 2006. The Summons, issued by the Court on April 3, 2006 and served by a U.S. Marshall on August 28, 2006 upon the defendant, Alen H. Segal 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 August 28, 2006 service date was September 17, 2006 excluding the legal holiday of Labor Day and no response was filed by that deadline of September 17, 2006.

Plaintiff recognizes that entry of a default judgment against a defendant is a severe remedy. See, e.g., E.F. Hutton & Co., Inc. v. Moffatt, 460 F.2d 284, 285 (5th Cir. 1972). Where, as here, a defendant does not respond to a properly served Complaint and ignores a duly issued and properly served Summons of the United States District Court of Massachusetts, a default judgment, is the appropriate and, indeed, just and only recourse. 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). 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 judgment against defendant.

Plaintiff believes that Defendant will likely attempt to remove the final judgment based on rule 60(b). The existence of probable valid counterclaims does not necessarily constitute a meritorious defense. (Schwarz v. Thomas 222 F.2d 305, 308 (D.C. Cir. 1955); 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 generally not favored and 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 fnal 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 for a court to grant relief from a final judgment under Rule 60(b)(1), the court must first determine whether the order from which relief is sought resulted from "excusable neglect." Fed.R.Civ.P. 60(b)(1); Pioneer Inv. Servs., Inc. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 381, 113 S.Ct. 1489 (1993).

As such, the defendant, Alen H. Segal, 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 this seemingly harsh rule is that generally, "the conduct by the Defendant, Alen H. Segal, 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, Alen H. Segal, 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 and to the court. The Second Circuit, which applies a stricter standard, will not "relieve a party of the burdens of a default 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, both a Motion for Notice of Default and a Memorandum for 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.


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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)).

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 their part in the civil conspiracy, fraud and trampling on the rights of plaintiff’s by violating Federal and State Law.

4. Plaintiff has stated a Cause of Action against Defendant(s) based on civil conspiracy
Civil conspiracy of defendant (Alen H. Segal)('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.)).

5. 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 . . .” 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).

C. Explanation of the Default Final Judgment
Plaintiff believes that the Default Final Judgment provides an adequate remedy for the alleged violations. Defendant has failed to plead or otherwise defend this action for more than 2 months, and Plaintiff is entitled to judgment by default against defendant.

IV. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court enter a 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
[Plaintiff only find out of the defendant, Alen H. Segal, late response of more than 2 months later, beyond the 20 days timeframe, when Plaintiff visited the clerk office on November 9, 2006 to obtain a copy of the Federal Rules of Appeal Procedures (FRAP) for an upcoming Appeal on a ruling by the Bankruptcy court that the plaintiff is preparing to file with this court.]

I hereby certify that a true copy of the above document was delivered in person August 8, 2006 to US District Court, District of Massachusetts, Boston and served by United States Postal Mail, postage upon counsel for the defendant (‘Alen H. Segal) mailed on November 10, 2006.

X ____________________________________ Pierre R. Augustin

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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

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