Cover letter Page
For the ......"
TheOutlawLenders.com "...... website.
AFFIRMATION IN OPPOSITION TO COURT'S Order to show Cause
and in support of Plaintiffs' Cross Motion
Dated 12/14/2009
Before the Honorable
UNITED STATES DISTRICT COURT Judge Preska
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------+
SCOTT E. WEBSTER, and JEAN ALLEN WEBSTER, |
|
Plaintiffs, pro se |
vs. | - CV -
|
WELLS FARGO BANK, N.A., SUCCESSOR BY |
MERGER TO WELLS FARGO HOME MORTGAGE, INC. | CASE NUMBER:
3467 Stateview Boulevard, Ft. Mill SC 29715 |
and d/b/a WELLS FARGO HOME MORTGAGE, |
RICHARD M. KOVACEVICH AS CEO WELLS FARGO | 08 CIV 10145
BANK, N.A., SEAN NIX, DOMINICK PENZETTA, |
MARCIA FRANCIS, STEVEN J. BAUM PC, DARLEEN V. |
KARASZEWSKI, AFFORDABLE FINANCIAL SERVICES, | AFFIRMATION
JOHN BALDWIN, RIVER CITY ABSTRACT, John and |
Jane Doe being persons unknown, if any, who | IN SUPPORT
abetted individually, or individually, or in |
concert, with any of the above named defendants| OF PLAINTIFFS'
in the acts being complained in this action, as| VERIFIED COMPLAINT;
this action, as | AND CROSS-MOTION,
Defendants. |
-----------------------------------------------+ AND IN RESPONSE TO
COMMONWEALTH OF VIRGINIA....) THE COURT'S ORDER TO
COUNTY OF CARROLL...........) ss: SHOW CAUSE 12/02/09
1. The above captioned Plaintiffs, Scott E. Webster and Jean
Allen Webster ("PLAINTIFFS"), residing at 204 Charlotte Drive,
Dugspur, Virginia 24325, being deposed under the laws of perjury
state to this Honorable Court the following, are fully familiar with
all the facts in the above captioned action, and that they jointly
state to this Court as follows.
RESPONDING TO THE COURTS ORDER TO SHOW CAUSE
2. That PLAINTIFFS make this Affirmation in support of their
Verified Amended Complaint that was properly and timely filed March
16, 2009, (hereinafter "COMPLAINT") and in response to the Courts
own motion by way of an Order to Show Cause of December 2, 2009,
(hereinafter "OSC") and ("Instant Motion") ordering PLAINTIFFS to
Show Cause before this Court as to why PLAINTIFFS causes of action
should survive this Instant Motion and any subsequent challenge to
dismiss the COMPLAINT for failure to state a "plausible claim for
relief" as per the recent United States 5-4 split decision in
Ashcroft v Iqbal 129 S. Ct. 1937 (2009), (hereinafter "ASHCROFT"),
and further challenges for dismissal under the established doctrine
of Rooker-Feldman. PLAINTIFFS will detail their support and
position to these demands in the later paragraphs, starting below at
paragraph 17.
PLAINTIFFS CROSS-MOTION
3. As any order to show cause is in fact an excelerated motion
and therefore subject to a cross motion, this Courts Instant Motion,
the OSC, can fairly be interpreted as a one sided motion to dismiss
the COMPLAINT via Rule 12, that was submitted both on behalf of
defendants who have not appeared, as well as those who have appeared
through their prior motions to dismiss as per Rule 12 (B) (1) and
(6); all three of which are still pending before this Court. This
OSC also acts as an unsubmitted motion to also dismiss the COMPLAINT
on behalf of named Defendant RiverCity Abstract who merely submitted
an answer. Therefore PLAINTIFFS will have to address your Honor
directly as the moving party, and will refer and treat the OSC as
the "Instant Motion" for which clearly is an apparent Rule 12(b)(6)
motion to dismiss.
4. As your OSC states "Having reviewed the amended
complaint..." PLAINTIFFS are not going to burdensome the Court with
a copy of the 64 page COMPLAINT with some 40 pages of exhibits, as
it was acknowledged to have been before you, and considered in your
OSC, and therefore a part of the record should an appeal be
necessary. PLAINTIFFS will however, use exact text from the
COMPLAINT relating to the pleaded causes of action in defending as
per ASHCROFT, beginning at paragraph 17 below. Likewise, excerpts
from PLAINTIFFS' responses to the three undecided motions submitted
pleading Rooker-Feldman begin at paragraph 90 below.
5. Additionally PLAINTIFFS are requesting as per your Honor's
printed Individual Practices of Judge Loretta A. Preska, per section
2 (E) "Oral Arguments on Motions" where "Parties may request oral
argument by letter at the time of their moving, opposing, or reply
papers are filed." Therefore we are requesting oral argument as
this request is also included in our covering letter for this
Affirmation in Response and in support of cross-motion.
6. PLAINTIFFS therefore also make this Affirmation in support
of their cross-motion which is being submitted in response to the
OSC itself and not through any captioned defendant who has put in an
appearance either via motion or answer, as PLAINITFFS are put at a
severe disadvantage by not knowing what specific issues to address,
which is akin to a prosecuter demanding proof of innocence to show
what and where one was doing in the previous week, instead of being
able to respond to a specific date and time to be addressed as is
required by a moving party in a Rule 12 motion. This will be
expanded on in the following paragraphs regarding, Rooker-Feldman,
and ASHCROFT.
THIS COURT'S ORDER TO SHOW CAUSE MOTION
- PREJUDICE DIRECTED AGAINST PLAINTIFFS -
7. PLAINITFFS are deeply concerned and troubled by the OSC for
the following reasons: it has the possible effect of blocking
PLAINTIFFS' rights of due process and equal protection under the
law; and, due process in preventing PLAINTIFFS from submission of
motions for filing default judgements. PLAINTIFFS had submitted a
letter to assigned Magistrate Judge Maas on October 27, 2009, six
weeks ago, seeking procedural clarification in filing motions for
default judgements as per the Judge Maas' listed rules requiring a
pre-motion conference. The main questions were how can you have a
conference when you have four defaulting defendants who were duly
served as is detailed below at paragraph 49 below. This letter
to-date has not been, to PLAINTIFFS' knowledge, filed and certainly
has not been answered by Judge Maas.
7a. PLAINTIFFS can only assume that this Court has required all
civil cases pending before it be required to defend and conform to
the tightened pleading requirements of ASHCROFT, as PLAINTIFFS have
been ordered to do. To do less, would show a bias against
PLAINTIFFS on behlaf of this Court, and deny PLAINTIFFS equal
protection under the law.
8. The Instant OCS, dated 12/2/09, is a motion to dismiss, as
understood by PLAINTIFFS as well as Judge Maas as he hand wrote the
below quoted note to the firm of Hogan and Hartson (hereinafter
H/H") in response to their letter of the same date, 12/2/09,
(Exhibit 01). This H/H letter to his attention, requested relief,
as well as making incomplete and misleading statements regarding
service (as discussed at paragraph 57). This letter was improper as
H/H was required at this time to put in a motion for leave to
intervene as per Rule 24 (c) (Procedure) for which PLAINTIFFS could
challenge and appeal if necessary. Judge Maas stamped the H/H
letter as "Memo Endorsed" while still failing to respond to
PLAINTIFFS' letter of October 27, 2009, (Exhibit 02) over one month
earlier. This clearly is a granting of a motion to intervene by H/H
on behalf of their DEFAULTED-DEFENDANTS "clients". Clearly the OSC
is a legal motion, again, opening the door for a cross-motion.
Judge Maas' hand written note reads:
"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."
9. PLAINTIFFS assert that H/H has no legal right or standing to
submit any kind of "application" in this action as there has not
been any appearance by the parties they claim to represent, as their
"clients" are in default, and therefore, they have no standing in
this court on any matter to seek relief at this time. The Court
should have rejected the letter for that reason. Maas' hand-written
note to the opposing parties and the OSC clearly indicates to all
the defendants, appearing and not appearing, that the COMPLAINT will
probably be dismissed. Such threat of dismissal effectively destroys
any negotiating advantage PLAINTIFFS may have had with said
defaulting parties. Said defaulted parties are: Wells Fargo Bank,
Richard Kovacevich, Sean Nix and Marcia Francis (herinafter,
DEFAULTED DEFENDANTS).
10. As to said point above regarding negotiating advantage, the
DEFAULTED-DEFENDANTS, all of whom may or may not be H&H's "clients"
and have been duly and properly served, but have not put in any
appeance in any way of an answer or motions to dismiss. PLAINTIFFS
had, prior to OSC and as a direct result of said "clients" defaulted
position, given cause for H/H attorney Kaite Lachtor to state in her
written email ("offer" to accept service) that "...your letter to
the Court has put pressure on my client...", and clearly PLAINTIFFS
held the higher ground at that point.
11. Rule 55 (c) "Setting Aside Default" may open the door for
H/H to defend their "client(s)" but clearly after a judgement has
been granted, filed, and served. As of 12/2/09, the date of H&H's
letter to Maas, PLAINTIFFS have done nothing to H&H's "clients" nor
does their letter assert any valid reason that would rise to the
level that would give them cause to seek relief for damages of any
kind. PLAINTIFFS must first motion for the default judgements, file
them, and attempt enforcement before the H&H can submit an
"application" motion to vacate the default judgements as per Rule 55
(c).
12. As such, the Court's OSC fairly gives the appearance to all
the appearing and non-appearing defendants that the Court has joined
the defense teams on their behalf, as this Instant Motion has given
the DEFAULTED-DEFENDANTS the undeserved advantage of having a motion
to dismiss submitted on their behalf without their having to even
put in an appearance, and especially, it relieves them of having to
answer the 305 factually detailed paragraphs in the COMPLAINT,
supported by the attached exhibits. PLAINTIFFS have not waived
their demand to a jury trial and as such there should be no
appearance of a court usurping PLAINTIFFS' rights to a jury trial.
Such appearance would be severely detrimental to PLAINTIFFS rights
to due process, equal protection under the law, and in violation of
the Seventh Amendment to have their "factual allegations" be
determined by the trier of fact, a jury of peers as was demanded in
the COMPLAINT.
13. This OSC Motion also unfairly expands the relief already
sought by the appearing defendants who had submitted their motions,
and did not assert any arguments under ASHCROFT. In fact, named
Defendants Steven J. Baum and Darleen V. Karaszewski in their joint
motion to dismiss (Rule 12 ibid), submitted and dated June 22, 2009,
(after ASHCROFT decision was published and widely reported), not
only failed to see cause to cite ASHCROFT, they also completely
ignored TWOMBLY as well. Obviously they realized that the fully
elaborated "factual allegations" of the COMPLAINT were too extensive
and documented and would easily survive the "plausability"
requirement of TWOMBLY and ASHCROFT.
13a. PLAINTIFFS assert that the Court had no reason for the OSC
to be directed against PLAINTIFFS without the recent ASHCROFT ruling
that was handed down after the filing of the COMPLAINT, and could be
the only reason for this Court to intervene on behalf of the
defendants; as Rooker-Feldman had already been moved before this
Court for dismissal by several of the defendants, which motions have
not been decided yet, to the knowledge of PLAINTIFFS.
14. The OSC, fairly understood, eliminates the filed motions in
which PLAINTIFFS noted that DEFENDANTS moving papers failed to note
with specificity the "issues" that they claim to have been heard in
the State Supreme Court, as required by statute in pleading
Rooker-Feldman. PLAINTIFFS had duly answered these motions in great
detail and if the Court found in defendants' favor, this would form
a basis for appeal. If the OSC is intended to be used as a
stand-alone motion to dismiss, and it is granted, the other pending
motions could thus being dismissed as the "issues" having already
been decided, rendering those motions moot, which could deprive
PLAINTIFFS of a proper appeal against the deficiencies of those
pending moving papers.
15. Initially, it could appear that the OSC might block
PLAINTIFFS from being able to file a cross motion seeking, inter
alia, relief as per Fed Rule 15 (a) for leave to amend the COMPLAINT
to more clearly conform to ASHCROFT should this Court issue a
holding that PLAINTIFFS' COMPLAINT does not rise to the level of
ASHCROFT/TWOMBLY. RULE 15 (a) clearly states: "Otherwise, a party
may amend the party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when
justice so requires." It must be emphasized that ASHCROFT was
decided after PLAINTIFFS pleaded their causes of action; and,
therefore PLAINTIFFS are submitting a motion/cross-motion for leave
to amend the causes of action in the COMPLAINT in anticipation of
such a ruling.
16. The timing of the OSC along with Judge Maas's hand written
note, has the appearance of the violation of Rule 72 (b) regarding
dispositive motions, which apparently was refered to your Honor that
resulted in your signing the OSC, as the H/H "application" was "memo
endorsed" on the same day. PLAINTIFFS were not accorded any
document for review and direct challenge, again, a matter for
appeal. Rule 72 (b) states:
"The magistrate judge shall enter into the record
a recommendation for disposition of the matter,
including proposed findings of fact when appropriate.
The clerk shall forthwith mail copies to all parties.
"A party objecting to the recommended disposition of
the matter shall promptly arriange for the transcript-
ion of the record, or portions...Within 10 days after
being served with a copy of the recommended disposition
a party may serve and file specific, written objections
to the proposed findings and recommendations. The
district judge to whom the case is assigned shall make
a de novo determination upon the record..."
THE RECENT ASHCROFT RULING
- THE ROLE OF THIS COURTS DECISIONS -
17. This very recent ASHCROFT holding is extremely controversial
and is open to various interpretations many which will end up to be
sorted out in the various appellate processes, for which this
instant OSC may very well end up being one; therefore PLAINTIFFS
must direct and aim their response towards that real possibility.
18. In fact, the potentially detrimental impact to the well
established rules of pleading (Rules 8 and 9) has given Senator
Arlen Specter cause to introduce the "Notice Pleading Restoration
Act of 2009" which would basically reinstate the Conley standard
thus eliminating standards set by ASHCROFT/TWOMBLY. On July 22,
2009, Sen. Spector introduced the following bill in the 111th
Congress which was read twice and referred to the Committee on the
Judiciary. This Act "S 1504" may be cited as the "Notice Pleading
Restoration Act of 2009" and reads:
SEC. 2. DISMISSAL OF COMPLAINTS IN FEDERAL COURTS.
"Except as otherwise expressly provided by an Act of
Congress or by an amendment to the Federal Rules of
Civil Procedure which takes effect after the date of
enactment of this Act, a Federal court shall not
dismiss a complaint under rule 12(b)(6) or (e) of the
Federal Rules of Civil Procedure, except under the
standards set forth by the Supreme Court of the United
States in Conley v. Gibson, 355 U.S. 41 (1957)."
19. The clear implication of the above bill is to reassert the
original intent of Congress as the Supreme Court has attempted to
cross the well-established and defined lines of powers and create
legislation. It is therefore incumbant upon this Court to take
careful and thorough consideration in its interpretation.
20. In further defense of Fed Rule 15(a) and our subsequent
submission of a motion/cross motion to amend our complaint as per
said rule, it should be noted the statement made by The Honorable
Jeff Sessions, the Ranking Member of the Senate Committee on the
Judiciary to the Honorable Patrick J. Leahy, Chairman, in a letter
in opposition to the above bill, for in part the following:
"In fact, defendants citing Iqbal continue to lose
motions to dismiss. More over, the well established
rule in federal court that leave to amend must be
freely granted prevents the permanent foreclosure of a
plaintiff's claims in all but the most egregious
circumstances. Indeed, the court in Iqbal itself
explicitly instructed the lower courts to consider
whether the plaintiff should be permitted to modify
his or her complaints to cure its deficiencies."
THE ASHCROFT RULING - FUTURE PROBLEMS
21. The ASHCROFT ruling, if its interpretation is
misunderstood, has the potential to not only disturb accepted and
established Federal Court Rules, but many active cases before the
entire Federal Court System in this country, this action being a
prime example. In fact, should that ruling not have been handed
down for another six months, this instant issue would not have to be
addressed by PLAINTIFFS, making it a supurb example for PLAINTIFFS
to file for leave under Rule 15, for a second amended complaint
within which to define the wording of the causes of action to a
higher degree of "plausability".
22. In the ASHCROFT decision, the Supreme Court held that the
plaintiff, Iqbal, had failed to meet the pleading requirement
because the pleading of the causes of action had made only
conclusory allegations, and the alleged facts in the complaint were
more likely explained by lawful conduct than illegal activity. As
will be amplified below, the causes of action in PLAINTIFFS'
COMPLAINT, while being verbose, go far beyond the meaning of
"conclusory allegations". Said COMPLAINT contains absolutely
undeniable facts that are supported with numerous attached documents
including defendants' own letters, sworn legal statements from
various moving papers, all of which require very little needed
discovery on the part of PLAINTIFFS from most of the defendants.
It, therefore, would not be burdensome upon the named defendants,
allegedly a primary reason for tightening the pleading standards as
per ASHCROFT and TWOMBLY, 550 U.S., at 555, 127 S. Ct 1955, 167 L.
Ed. 2d 929 (hereinafter "TWOMBLY"). TWOMBLY is cited over and over
again in ASHCROFT as the major guiding cite in ASHCROFT.
GENERAL DISCUSSION OF THE ASHCROFT
PLAUSABILITY REQUIREMENT OF PLEADINGS
23. A casual reading of the COMPLAINT shows that PLAINTIFFS
have clearly met the following legal standards for ASHCROFT in their
very detailed and spelled out causes of action in the COMPLAINT, and
if anything, it is overly detailed and factually pleaded. It is
more than reasonable that a jury could easily find for PLAINTIFFS in
the damages sought. The test for ASHCROFT and TWOMBLY is that a
plaintiff must present "plausible" "factual allegations" in order to
meet this burden. The accepted and legal definition is:
"Plausible - appearing worthy of belief,
superficially fair, reasonable, or valuable
but often specious" Merriam Webster Dictionary
"Flexible "plausibility standard" for surviving
motion to dismiss for failure to state a claim
obliges pleader to amplify claim with some factual
allegations in those context where such amplification
is needed to render claim plausible." ..."plausible
standard" is flexable one..." (NY Jur 2d Words and
Phrases)
"In sum, a complaint that alleges a that a defendant
caused a plaintiff's injury, without explaining
how, does not meet the requirements of Rule 8(a) and
cannot survive a Rule 12(b)(6) motion."
PLAINTIFFS UNREASONABLE BURDEN TO DEFEND
24. Being compelled to respond to the apparent more stringent
ruling of ASHCROFT handed down after the filing of the COMPLAINT,
comes at severe disadvantage to PLAINTIFFS who fully complied with
the pleadings under Rule 8.
25. PLAINTIFFS submitted their original Complaint on May 16,
2008, which was reviewed by United States District Judge Harold Baur
Jr. on or about November 21, 2008, who ordered that PLAINTIFFS'
named Defendant Andrew P. O'Rourke JSC be dismissed "...because it
fails to state a claim on which relief may be granted", however
after reading the original Complaint, Judge Baur apparently did not
see any severe difficiencies at that time regarding PLAINTIFFS
causes of actions.
26. On March 16, 2009, PLAINTIFFS filed their Amended Verified
Complaint (COMPLAINT) naming two additional defendants and dropping
JSC O'Rourke, and in the amended version added the below very
detailed causes of action consisting of an additional 14 single
spaced pages consisting of 74 paragraphs specifying the detailed
cause of action for each of the nine individually named defendants.
27. PLAINTIFFS assert that the application of ASHCROFT in this
suit, decided after PLAINTIFFS filed and the Court accepted their
COMPLAINT, raises serious questions, the least of which would be the
granting of PLAINTIFFS motion to amend the COMPLAINT as per Rule 15
(a).
28. As stated above, named Defendants Steven J. Baum and
Darleen V. Karaszewski in their joint motion to dismiss (Rule 12
ibid), submitted and dated June 22, 2009, (after ASHCROFT decision
was published and widely reported), not only failed to see cause to
cite ASHCROFT, they also completely ignored TWOMBLY as well.
PLAINTIFFS assert that the failure of these Defendants to motion the
Court via the ASHCROFT does not give them the right to have the
Court plead their case.
29. PLAINTIFFS assert that this Court should have ordered the
various defendants to submit, or resubmit a motion under Rule 12
stating the deficiencies with specificity where PLAINTIFFS could
reasonable respond to definitive allegations, as was done in
ASHCROFT.
30. Here the Court has directed PLAINTIFFS to attempt to read
the mind of the Court as to what it is actually requesting. For
example, there are nine defendants, and is the Court concerned with
some of the factual allegations against each one, or about all of
them. PLAINTIFFS are put in the impossible position of facing the
possibility of responding correctly to say 20 instances, only to
have the Court come back and say "gotcha" on this one over here.
31. The requirements for a defendant to move to dismiss under
Rule 12, demand, with specificity, exactly which issue, or cause of
action is being challenged to that the respondent can form and have
a reasonable ability to answer.
32. As stated above, PLAINTIFFS believe this OSC is not only
biased, but unnecessary because the various appearing and non
appearing defendants have proper and legal recourse to seek relief,
without the Court's biased involvement on their behalf. Again, this
is further reason for the Court to recuse itself for the
re-assignment of another District Judge.
33. While PLAINTIFFS don't accept the application of ASHCROFT
which was decided after the filing of the COMPLAINT as it is being
applied in this OSC, it is also completely burdensome and completely
vague as to what the Court is actually requesting. Without
question, if any of the Defendants moved this Court to dismiss under
any of the Rule 12 specifications, the Court would immediately
dismiss it for not rising to the rules of engagement. PLAINTIFFS
think the same should hold for this Court, and vacate the OSC as
requested in PLAINTIFFS' Cross-Motion.
34. However, in attempting to comply we cite the following
ASHCROFT holdings, vague as they are. As stated in paragraph 23
above, the overall test is what are "plausible factual
allegations".
35. We contend that should a dismissal of PLAINTIFFS' COMPLAINT
via ASHCROFT in this matter without the Court specifically noting
the shortcomings it believes are present, which could be corrected
with a Rule 15 (b) second amended complaint, would clearly usurp the
jury system, and a form a real test of ASHCROFT. Plausible factual
allegations that could be presented for a jury to decide as the
trier of fact, is a constitutional right that ASHCROFT obviously
flies in the face of, if improperly applied.
36. PLAINTIFFS assert again, that they can only assume that this
Court has required all civil cases pending before it be required to
defend and conform to the tightened pleading requirements of
ASHCROFT, as PLAINTIFFS have been ordered to do. PLAINTIFFS request
that should this Court hand down a dis-positive holding using
ASHCROFT that the Court list some of the pending actions in such a
holding, where the new ASHCROFT standard was applied, and not just
to PLAINTIFFS.
37. The OSC states "Having reviewed the amended complaint..."
implies that this Court has already conducted its review and already
made a determination, and if so, since the OSC is in reality a Rule
12 motion to dismiss on behalf of all the defendants. Where is the
point by point findings required in Rule 12 that the Court believes
PLAINTIFFS' causes of action fails to rise to the newer level, which
would allow PLAINTIFFS to address?
38. PLAINTIFFS cite some of the holdings from ASHCROFT which
apply in the COMPLAINT.
"Under Fed. R. Civ. P. 8(a)(2), a pleading must
contain a short and plain statement on the claim
showing that the pleader is entitled to relief. The
pleading standard Ruld 8 announces does not require
detailed factual allegations, but demands more than'
an unadorned the-defendant-unlawfully-harmed-me
accusation. ... To survive a motion to dismiss,
a complaint must contain sufficiant factaul matter,
accepted as true, to state a claim to relief that
is plausable on its face. A claim has factual
plausable when the plaintiff pleads factual content
that allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged. The plausibility standard is
not akin to a probability requirement,
but it asks for more than a sheer possibility
that a defendant has acted unlawfully."
39. PLAINTIFFS address the Court what conclusions did the Court
find as merely a legal conclusion, and if identified, are there
other factual allegations within the same cause of action which
would rise above such a legal conclusion. There are many
defendants, each one is specifically spelled out and detailed. How
would PLAINTIFFS know if the Court chose just one example with which
to dismiss the COMPLAINT against all the others where the ASHCROFT
standard would have been met? PLAINTIFFS believe the following
ASHCROFT holdings have been more than met, within the many factual
allegations, no, actual sworn facts within the entire COMPLAINT, but
directed against each and every defendant.
"Although for the purposes of a motion to dismiss
courts must take all of the factual allegations in
the complaint as true, they are not bound to accept
as true a legal conclusion couched as a factual
allegation."
"Only a complaint that states a plausible claim for
relief survives a motion to dismiss. Determining
whether a complaint states a plausable claim for
relief will be a context-specific task that requires
the reviewing court to draw on its judicial experience
and common sense."
"A court considering a motion to dismiss can choose to
begin by idenfifying pleadings that, because they are
no more than conclusions, can provide the framework
of a complaint, they must be supported by factual
allegations. Where there are well-pleaded factual
allegations, a court should assume their veracity
and then determine whether they plausibly give rise
to an entitlement to relief."
"This case instead turns on a narrower question:
Did respondent, as the plaintiff in the District
Court, plead factual matter that, if taken as true,
states a claim that petitioners deprived him of his
clearly established constitutional rights. We hold
that respondents pleadings are insufficient."
(ASHCROFT PAGE 6)
"Nor does a complaint suffice if tenders 'naked
assertion[s]' devoid of 'further factual
enhancement'"
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true,
to "state a claim to relief that is plausible on its
face... A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonalbe inference that the defendant is
liable for the misconduct alleged.
"The plausibility standard is not akin to a 'probab-
ility requirement,' but it asks for more than sheer
possibility that a defendant has acted unlawfully."
(ASHCROFT PAGE 12)
"Two working principles underlie our decision in Twombly.
First, [HN11] the tenet that a court must accept as
true all the allegations contained in a complant is
inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. ...
Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss....
But where the well-pleaded facts do."
"While legal conclusions can provide the framework
of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief." (ASHCROFT page 12)
"We hold that respondent's complaint fails to plead
sufficient facts to state a claim for purposeful and
unlawful discrimination against petitioners. The
Court of Appeals should decide in the first instance
whether to remand to the District Court so that
respondent can seek leave to amend his deficient
complaint." (ASHCROFT page 15)
40. A major reason ASHCROFT and TWOMBLY emphasized the
narrowing the pleading requirements of Rule 8 is to also prevent the
unnecessary burden of possible extensive and costly discovery
towards a defendant.
41. The COMPLAINT is so thoroughly detailed and documented with
many supporting exhibits, and PLAINTIFFS call the attention of the
Court that for each separate cause of action for each defendant
PLAINTIFFS included the following statement so that all the factual
allegations in the COMPLAINT would be directed to them so there
would be no confusion or ambiguity to defend against:
"PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as
though they had been individually repeated herein."
42. PLAINTIFFS have showen repeatedly through the COMPLAINT
that they are in possession of all the documents necessary to
present to a jury, and little if any discovery is needed, and
PLAINTIFFS are in a position to move for summary judgement against
the defendants who have appeared, and have earned the right to have
default judgements filed against the DEFAULTING-DEFENDANTS.
43. The fact that PLAINTIFFS don't need discovery, a major
reason for ASHCROFT and TWOMBLY should be taken very seriously in
applying ASHCROFT in probating the OSC.
THE CAUSES OF ACTION
44. As stated above, PLAINTIFFS have not attached the full copy
of the COMPLAINT as the Court's admission of having already read it,
and it is a part of the record the Court used in any decision or
order that PLAINTIFFS would be need for possible appeal, PLAINTIFFS
call to the attention of the Court for each and every defendant.
45. PLAINTIFFS had inserted the following language in each of
the individual causes of action for each defendant, at the following
paragraphs in the COMPLAINT: Defendant Wells Fargo 246, Defendant
Kovacevich 255, Marcia Francis 259, Sean Nix 267, Penzetta 277,
Gettridge 282, Affordable and Baldwin 292, River City Abstract 308
Steven J. Baum and Darlene Karaszewski 317.
"###. PLAINTIFFS reallege and restate all the
preceeding paragraphs as stated before with the same
force as though they had been individually repeated
herein."
46. Therefore, not only were causes of action spelled out for
each defendant, each defendant was referred to all the "factual
allegations" contained in the entire COMPLAINT. This amounts to
almost 250 detailed prior paragraphs that documents each defendants'
alleged acts in extreme detail. Again, without a proper Rule 12
motion filed by any or all of the defendants, PLAINTIFF could
literally create a book of assumptions of what is in the mind of the
Court in its OSC PLAINTIFFS must unreasonably defend against.
PLAINTIFFS therefore feel this alone would make a point of appeal if
a dispositive finding is held by this Court.
47. Finally regarding ASHCROFT, PLAINTIFFS assert that holding
the OSC to the standards of ASHCROFT, that the vague language in the
OSC does not rise to the level that PLAINTIFFS can use to form a
fair and practical response, and the OSC not specifying any clear
Rule could never be put forth to any court without rejection for
that reason, and this instant OSC should fall into that category as
well.
48. This Court should vacate the OSC and instead order any or
all of the defendants to submit a proper detailed motion to dismiss
for which PLAINTIFFS can form coherent responses.
DEFAULTING PARTIES
MINUTES IN LIEU OF CLERK'S CERTIFICATE
49. PLAINTIFFS herein are asking for holdings of the court for
declaratory judgements at this time in preparation for the official
filing for actual default judgements, as a jury trial will be asked
to access compensatory and punitive damages to be awarded
PLAINTIFFS. As stated above, PLAINTIFFS have waited for over six
weeks for a response to their letter for instructions on filing for
the default judgements, so in lieu of the fact that H/H's
application was acknowledged immediately, PLAINTIFFS believe Judge
Maas has waived the need for a pre-motion conference since it would
be one sided, and instead of actually filing the default judgements,
are seeking declaratory judgements to the fact that service has been
completed and that the below individuals are in default.
50. PLAINTIFFS are submitting the minutes of the Clerk's record
in lieu of a clerk's certificate at this time as proof of the
default. The minutes are online for easy verification.
NOTICES OF DEFAULT SENT TO DEFAULTING PARTIES
51. Listed below is the service upon each of the DEFAULTING
DEFENDANTS. PLAINTIFFS sent each party a "Notice of Default"
(Exhibit 03) mailed to each one where service had been made. These
Notices of Default dated August 25, 2009, offering to stipulate and
extend their time to appear if the defendant in default was willing
to put in an answer to the COMPLAINT. There was no response
whatsoever from any of them. Each Notice was individually signed so
they would have an original signature.
52. As Exhibit 03 shows, a copy of the notice was also sent to
H/H for their information. Even they did not respond, nor
apparently did they attempt to locate the COMPLAINTS that were
served. H/H certainly knew that service upon their "clients" was
being done.
53. The fact that there was no response from any defendant of
Wells Fargo, implies that there was a strategy to ignore service,
and challenge any default judgements at a later date. This put
Wells Fargo in a real bind as H/H's written email ("offer" to accept
service) that "...your letter to the Court has put pressure on my
client...", and clearly gave PLAINTIFFS the higher ground, until the
"memo endorsement" by Judge Maas.
54. Exhibit 04 is a letter from H/H demanding PLAINTIFFS send
them copies of PLAINTIFFS' returns or they would file for dismissal,
which of course would have no probative value until PLAINTIFFS filed
default judgements, giving the DEFAULTED- DEFENDANTS recourse to
move to vacate the judgement(s) as per FRCP Rule 55 (c).
55. PLAINTIFFS responded and sent the returns to H/H who
obviously came to the proper conclusion that at least some of the
services were in fact lawful, as they did not move to dismiss the
judgements as there were none filed.
DEFAULT JUDGEMENTS: MARCIA FRANCIS
56. Attached hereto as Exhibit 09 is the personal service of
process upon named and captioned Defendant Marcia Francis, along
with an expanded affidavit regarding that service, with a copy of a
photograph of the location of her Wells Fargo Office located in
Fishkill, NY, when service was done. Also attached as Exhibit 05 is
a copy of the minutes of the Clerk's record which shows the entry of
the original signed return, as well as that there is no appearance
put in of any kind.
57. The H/H letter that was sent to Judge Maas who "memo
endorsed" it, (Exhibit 01) contains the following proof in the
statement footnote "Although service on Wells Fargo and Francis also
appears to have been improperly effectuated, these parties intend to
focus the motion to dismiss on substantive grounds." There is not
even a hint of what the letter contends as "improperly effectuated"
is in the mind of Allison Schoenthal in making that vague non
factual statement, however the only proper legal remedy is for
PLAINTIFFS to get and file the default judgements requested, before
H/H can challenge them in a motion to vacate the judgement (Rule
55 (c).
58. The above H/H statement is proof positive that Defendant
Marcia Francis had received personal service, and is in default, and
Plaintiffs herein seek a declaratory judgement Rule 57 from this
Court attesting to that fact, which will be presented for a Default
Judgement to a jury to determine the amount of compensatory and
punitive damages to be awarded to PLAINTIFFS.
DEFAULT JUDGEMENTS: WELLS FARGO BANK, N.A.
SAN FRANCISCO NATIONAL HEADQUARTERS
59. Attached hereto as Exhibit 10 is a copy of the service of
process upon named and captioned Defendant Wells Fargo Bank, N.A.,
at Wells Fargo's listed official headquarters located in San
Francisco. Attached as Exhibit 10 is the return from the
professional process servicer. Exhibit 07 is a letter from the
process servicer attesting to the fact that they commonly serve
process against Wells Fargo routinely.
60. Again, The H/H letter that was sent to Judge Maas (Exhibit
01) contains the following proof in the statement footnote "Although
service on Wells Fargo and Francis also appears to have been
improperly effectuated, these parties intend to focus the motion to
dismiss on substantive grounds." Again, there is not even a hint of
what the letter contends as "improperly effectuated" is in the mind
of Allison Schoenthal in making that vague non factual statement,
however the only proper remedy is for PLAINTIFFS to get and file the
default judgements requested, before H/H can challenge them.
61. Also attached as Exhibit 05 is a copy of the minutes of the
Clerk's record which shows the entry of the original signed return,
as well as that there is no appearance of any kind.
62. This is proof positive that Defendant Wells Fargo is in
default, and Plaintiffs herein seek a declaratory judgement Rule 57
from this Court attesting to that fact, which will be presented for
a Default Judgement to a jury to determine the amount of compensory
and punitive damages to be awarded to PLAINTIFFS.
DEFAULT JUDGEMENTS: WELLS FARGO BANK, N.A.
FT. MILL HEADQUARTERS SOUTH CAROLINA
63. Attached hereto as Exhibit 11 is a copy of the service of
process upon named and captioned Defendant Wells Fargo Bank, N.A.,
at Wells Fargo's listed headquarters located in at Ft. Mill, SC.
This is the location of the headquarters who where the the
foreclosure action was initiated, and where the illegal assignemnt
transfering the original mortgage was effectuated. Attached as
Exhibit 11 is the return from the professional process servicer.
Exhibit 08 is a letter from the process servicer attesting to the
fact that they commonly serve process against Wells Fargo routenly
at that location.
64. Again, The H/H letter that was sent to Judge Maas (Exhibit
01) contains the following proof in the statement footnote "Although
service on Wells Fargo and Francis also appears to have been
improperly effectuated, these parties intend to focus the motion to
dismiss on substantive grounds." Again, there is not even a hint of
what the letter contends as "improperly effecuated" is in the mind
of Allison Schoenthal in making that vague non factual statement,
however the only proper remedy is for PLAINTIFFS to get and file the
default judgements requested, before H/H can challenge them.
65. Also attached as Exhibit 05 is a copy of the minutes of the
Clerk's record which shows the entry of the original signed return,
as well as that there is no appearance of any kind.
66. This is proof positive that Defendant Wells Fargo is in
default, and Plaintiffs herein seek a declaratory judgement Rule 57
from this Court attesting to that fact, which will be presented for
a Default Judgement to a jury to determine the amount of compensory
and punitive damages to be awarded to PLAINTIFFS.
DEFAULT JUDGEMENTS: WELLS FARGO BANK CEO
RICHARD M. KOVACEVICH AT
SAN FRANCISCO NATIONAL HEADQUARTERS
67. Attached hereto as Exhibit 12 is a copy of the service of
process upon named and captioned Defendant Wells Fargo Bank CEO
Richard Kovacevich at Wells Fargo's listed official National
Headquarters located in San Francisco, CA. Attached as Exhibit 12
is the return from the professional process servicer. Exhibit 07 is
a letter from the process servicer attesting to the fact that they
commonly serve process against Wells Fargo routenly at that
location.
68. Again, The H/H letter that was sent to Judge Maas (Exhibit
01) contains the following proof in the statement footnote
"Plaintiffs next attempted to serve the Complaint by delivering it
to persons not authorized to accept service on Defendants' behalf."
Again, there is not even a hint of what the letter contends as
"persons not authorized" is in the mind of Allison Schoenthal in
making that vague non factual statement, however the only proper
remedy is for PLAINTIFFS to get and file the default judgements
requested, before H/H can challenge them.
69. Also attached as Exhibit 05 is a copy of the minutes of the
Clerk's record which shows the entry of the original signed return,
as well as that there is no appearance of any kind.
70. This is proof positive that Defendant Wells Fargo CEO
Richard Kovacevich is in default, and Plaintiffs herein seek a
declaratory judgement Rule 57 from this Court attesting to that
fact, which will be presented for a Default Judgement to a jury to
determine the amount of compensory and punitive damages to be
awarded to PLAINTIFFS.
DEFAULT JUDGEMENTS: WELLS FARGO BANK CEO
RICHARD M. KOVACEVICH AT
FT. MILL HEADQUARTERS SOUTH CAROLINA
71. Attached hereto as Exhibit 13 is a copy of the service of
process upon named and captioned Defendant Wells Fargo Bank CEO
Richard Kovacevich at Wells Fargo's Ft. Mill, SC facility. This is
the location of the headquarters who where the the foreclosure
action was initiated, and where the illegal assignemnt transfering
the original mortgage was effectuated. Attached as Exhibit 13 is
the return from the professional process servicer. Exhibit 08 is a
letter from the process servicer attesting to the fact that they
commonly serve process against Wells Fargo routenly at that
location.
72. Again, The H/H letter that was sent to Judge Maas (Exhibit
01) contains the following proof in the statement footnote
"Plaintiffs next attempted to serve the Complaint by delivering it
to persons not authorized to accept service on Defendants' behalf."
Again, there is not even a hint of what the letter contends as
"persons not authorized" is in the mind of Allison Schoenthal in
making that vague non factual statement, however the only proper
remedy is for PLAINTIFFS to get and file the default judgements
requested, before H/H can challenge them.
73. Also attached as Exhibit 05 is a copy of the minutes of the
Clerk's record which shows the entry of the original signed return,
as well as that there is no appearance of any kind.
74. This is proof positive that Defendant Wells Fargo CEO
Richard Kovacevich is in default, and Plaintiffs herein seek a
declaratory judgement rule 57 from this Court attesting to that
fact, which will be presented for a Default Judgement to a jury to
determine the amount of compensory and punitive damages to be
awarded to PLAINTIFFS.
DEFAULT JUDGEMENTS: WELLS FARGO BANK VP SEAN NIX
AT FT. MILL HEADQUARTERS SOUTH CAROLINA
75. Attached hereto as Exhibit 14 is a copy of the service of
process upon named and captioned Defendant Wells Fargo Bank VP Sean
Nix, at Wells Fargo's Ft. Mill, SC facility. This is the location
of the headquarters who where the the foreclosure action was
initiated, and where the illegal assignemnt transfering the original
mortgage was effectuated. Attached as Exhibit 14 is the return from
the professional process servicer. Exhibit 08 is a letter from the
process servicer attesting to the fact that they commonly serve
process against Wells Fargo routenly at that location.
76. Again, The H/H letter that was sent to Judge Maas (Exhibit
01) contains the following proof in the statement footnote
"Plaintiffs next attempted to serve the Complaint by delivering it
to persons not authorized to accept service on Defendants' behalf."
Again, there is not even a hint of what the letter contends as
"persons not authorized" is in the mind of Allison Schoenthal in
making that vague non factual statement, however the only proper
remedy is for PLAINTIFFS to get and file the default judgements
requested, before H/H can challenge them.
77. Also attached as Exhibit 05 is a copy of the minutes of the
Clerk's record which shows the entry of the original signed return,
as well as that there is no appearance of any kind.
78. This is proof positive that Defendant Wells Fargo VP Sean
Nix is in default, and Plaintiffs herein seek a declaratory
judgement Rule 57 from this Court attesting to that fact, which will
be presented for a Default Judgement to a jury to determine the
amount of compensory and punitive damages to be awarded to
PLAINTIFFS.
ORDERING THE FULL RECORDS OF THE APPELLATE AND SUPREME COURT
79. On November 2, 2009, this Court issued an Order (Exhibit
06) directing that copies of the entire files of the State
litigation from the Putnam County Supreme Court as well as the
Appellate Division be forwarded to this Court. Inquiries at the
clerk's offices indicate that this was in itself rather unusual.
80. As these files were extensive in volume, consisting of at
least 2,000 plus pages of moving papers, letters, documents,
PLAINTIFFS realize that your Honor could not possibly have the time
in what we realize is a very heavy workload, and therefore would
have assigned a law clerk or intern to look over the massive and
complicated files. PLAINTIFFS however hold your Honor responsible
for the outcome, or lack of outcome which obviously affected you in
your OSC and the followup Order ordering us not to contact you in
the future on all but the narrowest of issues. This opens the door
for the defendants to submit to you as Mr. Ashley, prejudicial tomes
for which we are not allowed to answer. Again, the issue of due
process and equal protection under the law, as well as bias towards
or against a party.
81. Whomever was assigned to puruse these documents obviously
came up with some sort of answer or response that was presented to
your Honor, again, obviously affecting your attitude reflected in
your two recent orders directed to us.
Supreme Court Judge Schack's rulings in the dismissal of several
ROOKER-FELDMAN
83. There are three Rule 12 (b) (1) & (6) motions submitted by
the following named and appearing defendants, to which PLAINTIFFS
have responded, for which this Court has not decided. In each of
the defenses PLAINTIFFS, have put forth their counter affirmations
and briefs in response to these motions.
84. PLAINTIFFS call upon the Court to rule directly upon these
motions without requiring PLAINTIFFS to have to reassert what has
been presented to the Court for probate.
85. If the Court rules dispositively against PLAINTIFFS, it
would be upon the points made by the defendants and the Court would
be ruling on each of them, opening the door for appeal should
PLAINTIFFS feel it necessary.
86 As PLAINTIFFS and defendants have followed the Rules of the
Court, all parites should be heard on the merits presented therein.
87. PLAINTIFFS assert as in replying to the OSC under ASHCROFT,
that to re-respond to the OSC could superceed the prior motions as
stated above in paragraph 83, by the dismissal of the COMPLAINT
under the OSC which is so vague as to block a proper response, that
it would give the Court the advantage to dismiss those pleaded
motions by all parties as moot as the Court would decide without
specificity the points that PLAINTIFFS have already responded to.
88. PLAINTIFFS therefore call on the Court to rule directly upon
the motions before the Court and not to dismiss them under the OSC,
as all the points have already been pleaded. THEREFORE PLAINTIFFS
will rely upon their answers in the form of their submitted
Affirmations and Briefs.
GENERAL RELIEF REQUESTED OF THE COURT
AS STATED IN THE COMPLAINT
NOTE: This is in addition to the individual causes
of action as shown above.
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89. WHEREFORE, PLAINTIFFS demand relief from, or against each
of the Defendants as follows to:
a) Declare that ORIGINAL MORTGAGE was paid, and satisfied and
order Defendant WELLS FARGO to file a proper satisfaction, within a
reasonable amount of time so PLAINTIFFS can continue to seek a
suitable buyer at fair market value;
b) Declare that ORIGINAL MORTGAGE was paid, and satisfied and
order Defendant WELLS FARGO to remove from the County Records the
LIS PENDENS within a reasonable amount of time so PLAINTIFFS can
continue to seek a suitable buyer at fair market value;
c) Declare that the CONSOLIDATED MORTGAGE was a fraud and
charade, worthless, that it never legally happened and order that it
be removed from the public County Records within a reasonable period
of time to be determined by this Court;
d) Declare that the GAP MORTGAGE was created by fraud and
predatory lending, and order that it be declared null and void, and
order that WELLS FARGO file a proper satisfaction for it in the
public County Records within a reasonable period of time to be
determined by this Court;
e) Declare that illegal predatory lending by way of bait and
switch that was used that the $150,000.00 equity line of credit be
declared null and void, and that WELLS FARGO file a proper
satisfaction for it in public County Records within a reasonable
period of time to be determined by this Court;
f) Or in the alternative, declare that illegal predatory
lending by using exhorbitant interest rates as being based on prime
interest rate were not disclosed on the $150,000.00 equity line of
credit, and that it be declared null and void, and that WELLS FARGO
file a proper satisfaction for it in public County Records within a
reasonable period of time to be determined by this Court;
g) Or again in the alternative, declare that illegal predatory
lending by fraud and deceipt was used to lure and force
PLAINTIFFS into the $150,000.00 equity line of credit, and as fraud
vitiates everything it touches, and that WELLS FARGO file a proper
satisfaction for it in public County Records within a reasonable
period of time to be determined by this Court;
h) Order Defendant WELLS FARGO to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
i) Order Defendant AGENT FRANCIS to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
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j) Order Defendant KOVACEVICH to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
k) Order Defendant SEAN NIX to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
l) Order Defendant PENZETTA to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
m) Order Defendant KARASZEWSKI to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
n) Order Defendant BAUM LAW FIRM to pay PLAINTIFFS $817,000.00
for the loss of sale of PLAINTIFFS' PROPERTY to the Murrays, plus
plus interest and punitive damages for the outrageous activities,
that the public would find to be malicious and wilful behavior that
a jury could find that would defy the public conscious, and that
such damages being above the limits of the lower courts;
o) Order Defendant BALDWIN to pay PLAINTIFFS $3,000.00 paid as
commission by PLAINTIFFS, plus interest and punitive damages
for the outrageous activities, that the public would find to be
malicious and wilful behavior that a jury could find that would defy
the public conscious, and that such damages being above the limits
of the lower courts;
p) Order Defendant AFFORDABLE to pay PLAINTIFFS $3,000.00 paid as
commission by PLAINTIFFS, plus interest and punitive damages
for the outrageous activities, that the public would find to be
malicious and wilful behavior that a jury could find that would defy
the public conscious, and that such damages being above the limits
of the lower courts;
r) Declair that JSC O'ROURKE denied PLAINTIFFS their right of
Due Process by ignoring the laws and rules of the Court and the
CPLR, and to issur and order him to vacate his AMENDED DECISION AND
ORDER of August 27, 2007 within a reasonable period of time to be
determined by this Court;
s) Or in the alternative declair that JSC O'ROURKE carried ex
parte communications with the BAUM LAW FIRM and that by doing so
denied PLAINTIFFS their right of Due Process by ignoring the laws
and rules of the Court and the CPLR, and to order him to vacate his
AMENDED DECISION AND ORDER of August 27, 2007 within a reasonable
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period of time to be determined by this Court;
t) Declare that JSC O'ROURKE denied PLAINTIFFS their right of
Due Process by ignoring the laws and rules of the Court and the
CPLR, and to order him to recuse himself from hearing all further
matters relating to PLAINTIFFS herein;
u) Declare that JSC O'ROURKE denied PLAINTIFFS their right of
Due Process by ignoring the laws and rules of the Court and the
CPLR, ab initio, and to order him vacate his ORIGINAL DECISION AND
ORDER which was based entirely on a paid and satisfied mortgage
within a reasonable period of time to be determined by this Court;
v) Declair that JSC O'ROURKE denied PLAINTIFFS their right of
Due Process by ignoring the laws and rules of the Court and the
CPLR, and to order him vacate his JUDGEMENT FOR FORECLOSURE AND SALE
of PLAINTIFFS' PROPERTY that was based upon a paid and satisfaction
mortgage within a reasonable period of time to be determined by this
Court;
w) Order a temporary stay of all Court proceedings and/or the
enforcement of orders issued by JSC O'ROURKE of the Supreme Court of
the County of Putnam, pending the final outcome and determination
before and after trial or other rulings by this Court;
x) Issue a permanant injunction against the BAUM LAW FIRM, the
Court assigned REFEREE Defendant John Guttridge Esq., for any and
all orders issued by JSC O'ROURKE of the Supreme Court of the County
of Putnam, on matters relating to Defendant's foreclosure action;
y) Order Defendant RIVERCITY ABSTRACT to pay PLAINTIFFS
$817,000.00 for the loss of sale of PLAINTIFFS' PROPERTY to the
Murrays, plus interest and punitive damages for the outrageous
activities, that the public would find to be malicious and wilful
behavior that a jury could find that would defy the public
conscious, and that such damages being above the limits of the lower
courts.
WHEREFORE PLAINTIFFS demand relief against each defendant as
detailed for each defendant for the acts shown in the entire
COMPLAINT, where all the prededing paragraphs were incorporated
seperately for each defendant, request that due to the actions and
biased actions by the Court that the Court recuse itself, or in the
alternative give written reasons why the Court has decided at this
time to intervene on behalf of the defendants, that declarary
judgements as to the defaults of the DEFALTED-DEFENDANTS be issued
for PLAINTIFFS to submit for default judgements for which they are
entitled, issueing an order allowing PLAINTIFFS to amend their
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COMPLAINT should the Court find the current pleadings don't rise to
the level required either by ASHCROFT or Rule 8 guidelines,
for a declaratory judgement that the original mortgage had
been paid in full and satisfied, that Wells Fargo had failed
to file the required satisfaction of mortgage, that Wells Fargo
lacked standing for filing the initial foreclosure action, and
as a result rendering the entire Supreme Court action moot,
and not applicable to Rooker-Feldman challanges.
Dated: December 14, 2009
COMMONWEALTH OF VIRGINIA
COUNTY OF CARROLL
- Affirmation -
I declare under penalty of perjury that the foregoing is true
and correct.
_____________________
Scott E. Webster
Plaintiff, pro se
204 Charlotte Dr
Dugspur, VA 24325
(276) 278-5006
I declare under penalty of perjury that the foregoing is true
and correct.
_____________________
Jean Allen Webster
Plaintiff, pro se
204 Charlotte Dr
Dugspur, VA 24325
(276) 278-5006
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