+------------------------------------------------------------+ |The issues I desire to present on appeal are the following: | | (as required on page 1. See #7 below) | +------------------------------------------------------------+ In summary: Judisdiction via Rooker-Feldman Refusal to permit filing of amended complaint Trialable issues of fact Due process / Equal protection *** PRELIMINARY STATEMENT *** 1. The initial action is grounded in fraud, theft of equity, and other actions which ultimately ended in a foreclosure against Plaintiffs ("PLAINTIFFS") in the state court. It also seeks damages for the actions taken regarding the methods and illegal actions taken outside the state court issues by the attorneys. The action did not seek review, modification, or vacating by this District Court of any of the state court decisions and/or Orders, as interpreted by this Court as being in violation of the Doctrine of Rooker-Feldman. 2. This appeal is from a Memorandum and Order dated 12/23/09 of the Court ("MEMORANDUM") that was the result of a vague Order to Show Cause by the Court directed against PLAINTIFFS to give reason why their Verified Amended Complaint should not be dismissed in its entirety. 3. Such Order to Show Cause was a motion to dismiss 3212 on behalf of all ten defendants, directed against PLAINTIFFS pro se, without benefit of the governing Rules of 3212 or the mandated Rule 56.1 and 56.2 as required for pro se parties. 4. The actions of the Court were not only highly biased against Plaintiffs but have the clear appearance that the Court had joined all the defendants seeking defences to the action (see #6 below) 5. The MEMORANDUM was essentially grounded in jurisdiction relying upon the Doctrine of Rooker-Feldman; and the overiding issues on appeal are the actions, "findings of facts", and bias of the Court that was used to support its final arrival of not having jurisdiction. 6. The appeal is also about the denial of protected rights PLAINTIFFS should have been accorded by way of the rules and constitutional guarantees of equal protection and due process such as trial by jury to determine what facts should be allowed in the final probate of the matters. +------------------------------------------------------------+ | --- GENERAL BACKGROUND OF ACTION --- | +------------------------------------------------------------+ a) The Amended Verified Complaint filed March 16, 2009, ("COMPLAINT") based upon diversity of citizenship and damages of $817,000.00 plus punitive damages. b) Process of service was done on all defendants within the required time. c) Four of the Wells Fargo defendants were in default having - 1 - put in no answer or motions despite having been served three times at three different locations by professional process servicers, with followup Notices of Default as further notification. d) PLAINTIFFS sent the original signed service returns to the Court which received them on July 30, 2009. e) The court then "lost" the original returns and several times "found" them so they could be entered into the system; however PLAINTIFFS were requested resend "originals" several times. This is critical as only originals can be entered before default judgements are moved for. f) Returns finally entered into system September 24, 2009, by two months later only after threat of PLAINTIFFS notifying District Judge of this most serious problem which held up PLAINTIFFS from default judgements. g) PLAINTIFFS write Magistrate Judge Frank Maas for instructions on how to proceed regarding his "pre-motion" conference requirement where the defendant has not appeared on October 27, 2009, in response to those questions as per telephone call to the clerk. This was 7 page letter. This letter sent to all parties was never responded to. h) Maas letter creates serious problems for Hogan & Hartson ("H/H") law firm who claims to be representing Wells Fargo defendants who admitted to PLAINTIFFS in email that "your letter to the court has put pressure on my client..." g) No appearance by any of the defaulted defendants by H/H for any "client(s)", despite haveing been sent copies of Maas letter, Notices of Default, including all moving papers submitted to the court by all parties having appeared. h) Maas letter from PLAINTIFFS received at Court 10/29/09; following Monday 11/02/09 Court Orders all parties to forward copies of all papers from the state court proceedings on the foreclosure action and appellate court papers to be sent to Federal Court by 11/02/09. i) H/H sends letter to Court requesting pre-motion conference even lacking appearance by any "client(s)" which is immediat- ely conditionally granted by Magistrate Judge Maas, having been forwarded to him by District Court Judge Preska. j) District Court judge that same day via Order show cause dated 12/02/09 orders PLAINTIFFS to state reasons why entire action should not be dismissed in its entirety; returnable 12/15/09. k) PLAINTIFFS responded with an Affirmation in opposition and CROSS-MOTION seeking relief such as court's recusal due to extreme bias, declaratory judgements against defaulting defendants. k) Court issues MEMORANDUM and Order dismissing COMPLAINT with prejudice, and dismissing all pending motions as moot, including PLAINTIFFS CROSS-MOTION. +---------------------------------------------------------+ | Plaintiffs submit the issues in the following detail to | | avert the possible preclusion of any of them in the | | appellate process at a later time or proceeding. | | | Most will be grouped under a single issue or theme. | | +---------------------------------------------------------+ 7. That as the MEMORANDUM essentially dismissed PLAIINTIFFS' COMPLAINT citing jurisdiction, the following issues needed to be addressed in order for the Court to come to that conclusion; therefore PLAINTIFFS jointly present the following as major issues to be presented in the appeal process: - 2 - -- MEMU not in any particular order -- 1) Bias by the Court; 2) Failure of the Court to recuse itself from the action as motioned in PLAINTIFFS' CROSS-MOTION; 3) Failure to address PLAINTIFFS' CROSS-MOTION in which recusal was requested; 4) Failure to hold oral argument as PLAINTIFFS requested in writing 12/14/09 as per the published rules of the District Court Judge, Section 2 (E). 5) Accepting state orders where no notice of entry was filed; starting time for appeal or give validity to the decision/order; then relying on them in Order being appealed herein; 6) Failure to dismiss three Rule 3212 Motions for their failure to attach mandated Rule 56.1 & 56.2. 7) Failure to rule on PLAINTIFFS' CROSS-MOTION for default judgements via declaratory judgements 8) Usurping PLAINTIFFS' demand for jury trial - by trying PLAINTIFFS' COMPLAINT, issuing findings of fact which a jury could easily be presented with 9) Incorrectly applying Rooker-Feldman doctrine where action in the state court was not final; 10) Incorrectly applying Rooker-Feldman doctrine where issues were never held in the state court, and applying its own issues in order to then apply Rooker-Feldman 11) The Court relitigated the state court decisions while claimimg to lack jurisdiction; 12) That the Court in re-examining the issues in making its MEMORANDUM conveniently ignored the critical issue of standing in that the foreclosure action had been initiated upon a mortgage which the plaintiff Wells Fargo did not have in its possession when the lis pendens and complaint was filed in the state court 13) Relying on orders and decisions of the state court where no notice of entry had been served, allowing the appeal process/reargumemt time to remain open and not final as required by Rooker-Fledman; 14) Ignoring FRCP 72 regarding the role of the Magistrate Judge which would have given aggreived parties 10 days to object before a de novo proceeding before the District Judge, a violation of due process. 15) Granting a motion by the firm of Hogan & Hartson who did not have a client appearing in this action; 16) PLAINTIFFS were denied due process and equal protection in having to respond to the Court direct involvement and not to the appearing and non appearing parties; 17) The court via its involvement and the methods used became an actual party, acting as an involved litigant; 18) That the Court issued holdings of "facts" which were wholly untrue and incorrect while ignoring facts and documents which a reasonable person would find were at odds with the written findings; 19) That the Court allowed the four Wells Fargo defendants to default without any judgements accorded to PLAINTIFFS - and sends public notice that defaults mean nothing in the Federal Court, Southern District - 3 - 20) That regardless of any problems the Court may have later found PLAINTIFFS were entitled to default judgements against the four default defendants; 21) The Court knowingly allowed a reasonable and legal question to the Magistrate judge by PLAINTIFFS to go unanswered, denial of due process of the Magistrate's own rules. 22) The Court ignored Rule 15 (a) allowing PLAINTIFFS to freely amend deficiencies in their pleadings, denying due process. 23) Defendant Penzetta's motion to dismiss Rule 12(b)(1)&(6) dated 04/10/09, not ruled upon, dismissed as moot; Defendant failed to list with specificity the "issues" of the state court decided, as well as failed to file the required Statement 56.1 for pro se parties which mandates "The party who files the motion must list the material facts which s/he contends are not is disupte". The Court ignored this mandated requirement. 24) Actions of the Court was to prevent PLAINTIFFS from seeking FRCP 59 (e) for a new trial, which was precluded by the bias of the Court for due process. 25) Denied by ignoring PLAINTIFFS cross-motion seeking declaratory judgements which would not violate Rooker-Feldman which would amend, overturn, or vacate a state court decision or order - PLAINTIFFS never asked to court to alter the foreclosure judgement. 26) Court violated FRCP 56 (c) & (d) requirements to pro se litigants on a dispositive motion. 27) Court violated PLAINTIFFS rights to due process for FRCP 56 (e) requiring supporting affidavits based upon personal knowledge of the facts - on the Court's own motion to dismiss. 28) Defendants Affordable/Baldwin motion to dismiss Rule 12(b)(1)&(6) dated 04/24/09, not ruled upon, dismissed as moot; Defendants failed to list with specificity the "issues" of the state court decided, as well as failed to file the required Statement 56.1 for pro se parties which mandates "The party who files the motion must list the material facts which s/he contends are not is disupte". The Court ignored this mandated requirement. 29) Defendants Baum/Karaszewski motion to dismiss Rule 12(b)(1)&(6) dated 06/29/09, not ruled upon, dismissed as moot; Defendants failed to list with specificity the "issues" of the state court decided, as well as failed to file the required Statement 56.1 for pro se parties which mandates "The party who files the motion must list the material facts which s/he contends are not is disupte". The Court ignored this mandated requirement. 30) Accepting several decisions for probate where no notice of entry has been filed which would give the decision/order validity, and start the clock for renew or appeal process. +--------------------------------------------------------+ | --- BIAS SHOWN BY THE COURT --- | +--------------------------------------------------------+ - 4 - 8. PLAINTIFFS' COMPLAINT consists of 305 detailed factual allegations and unchallenged acts by nine served defendants in its 64 single spaced pages plus exhibits. The overall action covers a very complicated series of events and issues, and would require considerable time for reasonable and fair analysys. 9. PLAINTIFFS have been told by the pro se clerks that Judge Preska has on average 300 to 400 cases assigned to her at any given time, and sheer logic dictates that she personally does not have the time spend on PLAINTIFFS' action to dictate a 40 page Memorandum and Order, let alone read through all the 305 paragraphs of the COMPLAINT. 10. The Court's Order of 11/02/09 that copies of all the full extensive files amd papers from the Supreme Court and the Appellate Court had to that included many motions and correspondence were logically analyzed by Judge Preska, and would have been assigned to a law clerk for review and analysis, as well as preparing the final Memmorandum and Order. 11. Whomever authored the MEMORANDUM, PLAINTIFFS had no way what issues the author was going to focus on, what "facts" and how they would be interpreted, and no reasonable way to respond to what were to be pure, unchallenged allegations from the Court. 12. Therefore PLAINTIFFS were denied a competent hearing on their COMPLAINT and especially their responding Affirmation in Opposition and Cross-Motion, both of which were clearly ignored and not directly responded to. 13. The Court's cowardly issuing of its findings under the title of "MEMORANDUM" instead of "Decision" clearly gives the appearance of couching the Court's opinion in a less formal manner, as the legal defination for "MEMORANDUM an informal record; ''a brief note, in wirting of some transaction or an outline of some intended instrument." 14. Yet the MEMORANDUM goes into detail of the COMPALINT and other state court papers carefully picking only the facts it needed in order to assert its opinion to support its claim of lack of jurisdiction via Rooker-Feldman. 15. PLAINTIFFS' Affirmation in Opposition and in support of their Cross-motion directly pointed out points of appeal seven (7) times, fully warning the Court that the issues and the direction the Court was obviously taking was probably headed for the appellate process. 16. As stated in the various moving papers that before the District Court, in order for defendants to properly assert the shield of Rooker- Feldman, the decisions of the New York Supreme Court must be completed, and the issues claimed to "decided" by a plenary decision must be final. That the Court had all the state court decisions in its possession via the Order of 11/02/09, the state court only directed its findings to the foreclosure action, and only after having to amend its prior decision and order where the state court agreed with PLAINTIFFS herein. This was a violation of the law of the case, and facts left out in the MEMORANDUM concept that stated PLAINTIFFS were confused about the mortgage transaction. - 5 - 17. The Court in applying its narrow application of Rooker- Feldman in dismissing the COMPLAINT state "...bars Plaintiffs ''from raising claims that allege injuries resulting from the state-court judgement permitting foreclosure to proceed''", while totally ignoring the fact that the state court decisions never addressed the vast majority of the issues in the factual allegations of the COMPLAINT. Again, in the two judgements, PLAINTIFFS' answer was stricken and changed to a mere "limited notice of appearance". It is clear to see from the record, that any issues PLAINTIFFS tried to raise before the State Court were denied, ignored, not probated, that a plenary hearing on the issues never happened. As the PENZETTA motion states: "There must have been a full and fair opportunity to contest the decision now said to be controlling." +----------------------------------------------------+ | BIASED STATEMENTS BY THE COURT SHOWS ATTITUDE | +----------------------------------------------------+ 18. The following from page 2 of the MEMORANDUM of the Court of pure opinion gounds shows an attitude more like a scolding rather than a serious and unbiased recitation of the merits and facts of the COMPLAINT. These "findings" should be left up to the jury to decide. They are in no way contained in any of the state court decisions. ------ "The Complaint is a long, rambling and confused document that is replete with inconsistencies and incredible conspiracy theories. The documents attached to the complaint directly contradict many of Plaintiffs' allegations. Most of the allegations rely on Plaintiffs' misconceptions regarding both their mortgage loans and the foreclosure process, as is clear from a review of the attachments." ------ "The only connection between these claims and the other claims in this action comes from Plaintiffs' fantastic and conclusory allegations that all parties were involved in a comspiracy to steal Plaintiffs' equity". ------ "This action arises from Plaintiffs' confusion about the refinancing and subsequent foreclosure of a mortgage..." ------ "The Court [this court] dismissed the conspiracy allegations on the merits." +--------------------------------------------------------+ | --- CRITICAL TIMING OF COURT --- | | A CRISIS SITUATION FACING DEFENDANT WELLS FARGO | | SHOWS ATTITUDE AND BIAS AGAINST PLAINTIFFS | +--------------------------------------------------------+ 19. PLAINTIFFS were clearly in a good position in this action, until the Court's interference that appears to attempt to rescue the Wells Fargo Defendants who were in a crisis because they were in default for not answering the multiple services of process upon them, as well as notices of default, all of which were documented in PLAINTIFFS CROSS-MOTION, which the Court ignored. - 6 - 20. PLAINTIFFS noted the unexplained delay in the Court Clerk in the filing of the service returns for all of the Defendants, in particular those of the defaulting Wells Fargo Defendants. This prevented PLAINTIFFS from moving forward as certificates of default were needed from the Clerk, but only after the filing of them. As stated above, service on the Wells Fargo defendants had been professionally served three different times at their listed three official locations. PLAINTIFFS supplied letters from the process servicers that these were the official locations for service that they had used in the past. 21. PLAINTIFFS 10/27/09 letter to Magistrate Maas requesting clarification on how to proceed with a motions for judicial defaults that required a pre-motion conference was never answered. The letter noted for the Court that the Wells Fargo defaults by not appearing would not legally able to contest the motions until the default judgements were filed with the clerk. 22. Each defendant was held to $817,000.00 entitling PLAINTIFFS to defaults sum certain to awards totaling $3,268,000.00 not including punitive damages via jury award. 23. What is clear is that PLAINTIFFS were entitled to default judgements regardless of any possible later rulings by the Court of jurisdictional problems, or any other rulings. 24. By the Courts sudden rush to intervene with its unwarranted Order to Show Cause, became a moving party not having to follow the strict rules for summary judgement motions where the issues are specified and the defending party has a fair and legal ability to respond, sends a message to all other defendants that in this Federal Court, putting in an answer or motion will not be necessary, the Court will intervene on your behalf to block any complaint; kind of like applying a Fifth Amendment via starre decisis. 25. Magistrate Maas granted Hogan and Hartson's motion of 12/02/09, which was presented to District Judge Preska when he endorsed their motion with the following hand written message. PLAINTIFFS again repeat, that at this time their seven page request 10/27/09, also in letter form, was never answered; bias of the Court and denial of due process. "This application may, in part, be mooted by Judge Preska's Order to Show Cause dated 12/2/09. To the extent it is not, I note that Judge Preska's referral to me was for general pretrial purposes only. Since Ms. Schoenthal's letter relates to a dispositive motion, her request should be directed to Judge Preska." 26. The Court granted the defaulted defendants via Wells Fargo's "attorney", Hogan and Hartson a motion on December 2, 2009, the same exact date of the Courts Order to Show Cause against PLAINTIFFS, indicating that the Court was acting in the only in the best interest to shield these defendants from the deserved default judgements, and gives the appearance that the Court had joined the defense team; again extreme bias by the Court, denial of due process and equal protection towards PLAINTIFFS. - 7 - --- EXPIRATION OF THE LIS PENDENS --- 27. Also critical at that time, the lis pendens was filed on December 15, 2006, and was due to expire within mere days on December 15, 2009, eight days before the Court handed down its MEMORANDUM. CPLR 6513. As Wells Fargo never motioned the Supreme Court for an extension, which must be timely and done far enough in advance to establish new index numbers (CPLR 6513); they ran out of time, and as the Court, as a matter of law knows full well that a current lis pendens is manditory to support any foreclosure action, and the court cannot extend an expired lis pendens. CPLR 6516(c) 28. Within days, PLAINTIFFS would have seen the entire state court foreclosure action vanish as moot, and therefore any application of Rooker-Feldman would be properly open to challenge. 29. PLAINTIFFS believe that with the expiration of the lis pendens eight days prior to the Courts issuing its MEMORANDUM, that with the destruction of the state's foreclosure action, which was still open, allows Federal Court jurisdiction regardless of Rooker-Feldman, an interesting point for appeal. 30. As noted in PLAINTIFFS Affirmation, Defendant's failure to file several notices of entry fails to give validity to those judgements/decisions/orders, and the Federal Court should have taken note of them and not relied on them for probate. +----------------------------------------------------+ | THE COURT HAD JURISDICTION | +----------------------------------------------------+ 31. The Court's MEMORANDUM stated that PLAINTIFFS "... expressly invite review and rejection of the foreclosure judgement..." which is totally not true. Nowhere did the COMPLAINT have any request to modify, or vacate any of the state court decisions/judgements. PLAINTIFFS did request a declaratory judgement regarding the lis pendens that it be vacated as its being false and filed on a mortgage that had been paid and satisfied; which would have destroyed standing and prevented any Rooker-Feldman defense. 32. PLAINTIFFS note that the MEMORANDUM went specifically into detail attempting to explain its holding that fraud was not involved in the closing as alleged in detail in the COMPLAINT; in doing so, the Court had to take the opening balance of $141,853.69 of the original mortgage and to use that to show that it was "consolidated" since it was the sold mortgage listed in the lis pendens and the basis for the entire foreclosure action. 33. That figure only appeared on Exhibit 7 of the COMPLAINT, and anyone seeing that document from Wells Fargo would have had to deliberately ignore the real amount of $143,409.56 which appears through the foreclosure process and is stated as: * * TOTAL AMOUNT TO PAY LOAN IN FULL * * for which a check from the title company wrote made to Wells Fargo in the same amount, and charged to PLAINTIFFS in the $522,200.00 loan amount. 34. Wells Fargo had no right to that amount as they did not have possession of the mortgage for over two years, until 01/10/07 as the COMPLAINT documents. - 8 - 35. Wells Fargo had helped themselves to $143,409.56 of PLAINTIFFS payoff money and did not payoff the real owners of the mortgage during that period. 36. As the other papers before the Court had shown, that the actual transfer two years later was illegal as there were no corporate resolution, nor limited power of attorney involved in the transfer, and the "secretary" on the transfer was none other than a Wells Fargo employee, as well as the backdated document was notarized by another Wells Fargo employee. 37. The mortgage transfer, lis pendens on a paid mortgage and other factors clearly show that Wells Fargo and the state court never had jurisdiction, and therefore the appellate court should vacate the District Court MEMORANDUM and remit the action to another judge for the jury trial PLAINTIFFS' demanded. ------------------------------------------------ - 9 -