08-CV-10145 |
+------------------------------------------------------------+
|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 -
Scott E. Webster 276-728-5006 Virginia Number |