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LETTER TO THE FEDERAL DISTRICT COURT
REGARDING WELLS FARGO'S DEFAULT AND FAILURE TO ANSWER
OUR COMPLAINT & request to rehear issue of standing to
have brought the initial foreclosure suit originally.
Dated 10/27/2009
United States Disctict Court, Southern District, New York
To Chambers --- Attn: Hon. Frank Maas 08 CIV 10145 (LAP)
-----------------------------------------
Via U.S. Mail
October 27, 2009
AS PER INDIVIDUAL PRACTICES OF MAGISTRATE JUDGE MAAS
1. Communications with Chambers
QUESTIONS TO THE COURT CONCERNING PROCEDURE
Re: Scott E. Webster and Jean Allen Webster
pro se, v. Wells Fargo Bank, N.A. et al.
Index No.: 08 CIV 10145 (LAP)
Scott E. Webster and
Jean Allen Webster
Plaintiffs, pro se
204 Charlotte Drive
Dugspur, VA 24325
(276) 728-5006
Hon. Frank Maas
Untied States Magistrate Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street, Room 1320
New York, NY 10007-1312
Dear Judge Maas:
We, the above Plaintiffs, pro se, recently contacted your
chambers seeking answers to several questions, and it was suggested
that we put them in writing with copies to the other parties to
avoid any ex parte issues. Therefore, we present the following
regarding how we should proceed according to your Rule #2 A for
Pre-Motion Conferences in Civil Cases. Clarification on a
conference is important as we live 600 miles from the Courthouse at
the above noted address which imposes a hardship on us.
Therefore, we wish to get a clarification on the following so we
can file our necessary motions and proceed with discovery.
BACKGROUND
----------
The Above action is regarding our Amended Verified Summons and
Complaint dated March 16, 2009, which has 10 named and captioned
defendants. All have been served. One has appeared with an answer,
and three others via motion to dismiss via Rooker-Feldman, which are
before the Court.
DEFAULTING PARTIES
------------------
Four (4) of the named defendants are direclty associated with
Defendant Wells Fargo Bank, N.A., and all have been served, but have
not appeared and are currently in default; they include Wells Fargo
Websters to Judge Maas page 2/7
Broker Marcia Francis who was personally served. We have filed with
the pro se office the service return for this defendant, along with
a separate signed Affirmation as further proof in support of
personal service. The other three named Defendants are Wells Fargo
Bank, N.A., Richard Kovacevich CEO of Wells Fargo, and Sean Nix,
V.P. of WELLS FARGO.
These three named defendants were all served by professional
process servicers on three separate dates at three different
locations, and the original signed returns of service on all of the
defendants have been filed and recorded with the pro se Office with
a filing date of 07/30/09 at number 24 through 38. There was a long
delay with the entering of the service returns due to computer
problems and the misplacing of the our original returns which took
several telephone calls to correct. We received confirmation of the
proof of the filings dated 09/25/09.
There were a total of 15 service returns filed because we had
the three defaulters re-served on three additional times at three
different locations, which included the National headquarters
Offices of Wells Fargo in San Francisco, Wells Fargo's Official
Offices in Ft. Mill, SC where the underlying foreclosure action was
initiated, and with their foreclosure attorney in New York, covered
by NYS law that allows service on an attorney for separate actions
where the parties have been engaged in similiar issues or actions of
a somewhat common nature.
We will be filing motions on the four defaulting parties with
the Court as per Default Rule 55 (b) (2) as the Verified Amended
Complaint asks for various damages, including punitive damages, as
well as certain injuctive and declaratory relief, which is beyond
the scope of Rule 55 (b) (1), that allows a challenge under 55 (c).
Complicating matters is the involvment of the Law Firm of Hogan
and Hartson, by Katie Lachtor Esq. who recently contacted us by
telephone, email and then U.S. mail claiming to be the law firm that
will be representing Wells Fargo in this Federal Action; however,
they have not put in any official notice, or appeared in this matter
on behalf of their "client".
The firm has made several verbal offers to us offering to accept
service on behalf of Defendant Wells Fargo Bank only, if we would
drop named Defendant and CEO Kovacevich from the suit, which we are
not willing to do.
We plan to ask this Court when we file our motion(s) for default
to hold that; 1) proper and legal service was in fact effected on
the defaulting defendants, or in the alternative, 2) that the Hogan
& Hartson be ordered to put in an appearance and answer on behalf of
their stated "client", or also in the alternative to 3) issue
amended subpeonas to be served at the proper location(s) as would be
demanded of Hogan and Hartson, as we have requested of them in
writing, 4) or, as per Rule 4 (m) for the Court to extend time for
good cause Plaintiffs' will show in the moving papers.
We believe Hogan and Hartson has made it perfectly clear by
their actions so far, that they have been representing Wells Fargo,
without making a formal appearance to date, as we have requested.
In a letter to us demanding copies of our service returns which had
not been logged in at that time, Attorney Lachtor stated that she
Websters to Judge Maas page 3/7
was going to move this court to dismiss our amended Complaint if we
did not send the eleven copies to them, which we did on 09/16/09.
As no further action has been made by Hogan and Hartson, we take it
as prima facie evidence that they have concluded that at least one
of the locations was proper for service and therefore they lacked a
legal position to dismiss based upon a lack of service.
For reasons unknown to us, Hogan and Hartson were initially sent
copies of the moving papers by Lisa Shrewsberry, Attorney for
defendant Dominick Penzetta in the motion to dismiss Rule 12(b)(1)
and (6). We, along with the other attorneys have continued to send
H/H copies to protect ourselves, as we have continued to do with
this letter. Recently on 09/10/09, we sent a demand to Attorney
Shrewsberry asking why she included H/H, and if her firm was
representing Wells Fargo in any way. We have not received any
answer.
It is important to us that we bring the four defaulting
defendants under the jurisdiction of the court in order to allow us
to file proper motions and seek the relief we need.
ADDITIONAL NOTICES OF DEFAULT
-----------------------------
Last August 25 we sent the defaulting defendants our own "Notice
of Default and Demand for an Answer" offering via stipulation that
we would accept an answer to the complaint before motioning the
court for defaults. These notices were sent delivery confirmation
to all the above noted locations, the same ones where the
professional service was effected; also a copy to all other parties,
including Hogan and Hartson who called us to discuss our Notices;
none of these elicited any kind of response from the named
defendants.
Despite the eleven (1) professional services of the Verified
Summons and Complaint, and the eleven followup default notices,
Hogan and Hartson still claims that their "client" has not been
served, or that have they received any of these papers from any of
the defaulted defendants, which is why we need to move the court via
motion(s) for a holding(s) on the services that have been done.
Additionally, We have letters from the three professional service
companies that they have served Wells Fargo many times before at the
locations served with out of state summons and complaints which will
be a part of our documented exhibits along with our supporting
affirmations of facts, for this court to decide.
DEFAULT MOTION QUESTIONS
------------------------
1. Do we have to request in writing and have a pre motion
conference from the Court before the filing of any of our planned
motions for default judgements as per Rule 55 (b) (2)?
2. Does a conference require in person appearance?
3. Does a conference require service upon all parties including
those who have appeared regarding the default applications?
4. Rule 55 (b) (2) states "If a party against whom judgement by
default is sought has appeared in the action, the party (or, if
appearing by representive, the party's representive) shall be served
with written notice of the application for judgement at lease 3 days
prior to the hearing on such application." Does this apply for a
Websters to Judge Maas page 4/7
defaulting, non answering party? or such as Hogan and Hartson?
5. Does Hogan and Hartson's involvement to date qualify
them as Defendant Wells Fargo's "representive" even though they
have not put in an appearance, and entitle them to be served with
a copy of the judgement motion?
6. If Hogan & Hartson does qualify as a representive, whould
that apply for the other three defaulting Wells Fargo's agents?
7. Can we make one single motion to the Court with a supporting
affirmation, along with one copy of the Verified Amended Complaint,
and a copy of the clerk's certification of the default, and include
copies of the service returns for all three of the locations served
to each defaulted defendant?
8. Do we first need a holding from the Court affirming
the legality of the service on at least one of the three services?
9. Due to the size of the some 100 pages of the Verified
Amended Complaint, can we make one motion to the Court with
supporting affirmation, a copy of the Verified Amended
Complaint, clerk's certification of the defaults, along with a copy
of the service returns for all three of the locations served for a
determination of the legality of the service(s)?
10. Question #10 listed below.
OTHER ISSUES REQUIRING MOTIONS
-------------------------------
MOTION TO AMEND THE CAPTION
Under pressure to file our Amended Verified Complaint on March
16, 2009, which was immediately following oral argument before the
Appellate Division, 2d, that same day, we inadvertently left out one
of the names on the caption that was retyped that afternoon at the
pro se office. This resulted when we added two names and dropped
one. The named defendant that was dropped was John Guttridge Esq.
who was correctly listed in the caption before the complaint was
amended; however, he is properly listed in the amended version at
paragraph 19. Mr. Guttridge was served on March 19, 2009, but when
filling out the return did we notice that he was not included in the
caption. Mr. Guttridge was fully aware of this as he made an
application to the Supreme Court to be dropped as the court ordered
referee and submitted a copy of the amended complaint to support his
motion.
As per discussion the following Monday in person at the pro se
office, we decided to amend the caption after all parties had
responded and put in an appearance with a motion to amend the
caption only, without having to reserve the entire 100 page Amended
Verified Complaint on all the parties. Again, when the defaulting
defendants is resolved, we will be making the motion.
DE NOVO APPLICATION
-------------------
We also plan to move this Court by motion to hear an application
for a a de novo proceeding for a declaratory judgement regarding the
issue of legal standing in the original foreclosure action in the
New York State Supreme Court. The foreclosure action was initiated
by the named Defendants Wells Fargo by Steven J. Baum P.C. As
standing can be challenged and addressed at any time, a successful
holding to vacate all the actions of the lower Supreme Court
Websters to Judge Maas page 5/7
ab initio, would nullify the several challenges via Rooker-Feldman
which are currently before this court by the defendants who have
appeared.
To remind the Court that the holdings in the foreclosure action
were extremely limited and do rise to the level of a plenery hearing
and not sufficient to defeat the Rooker-Feldman challenge.
--> 10. We plan to move the Court to hear the de novo proceeding,
but we believe that it is necessary to resolve the Wells Fargo
defaulting defendants first, especially as Wells Fargo would appear
to be the only party to be able to legally defend such a motion, and
hence they would need to "appear" and come under the jurisdiction of
the Court. Do we need clarification of defaults first from the
Court? Do we need a pre-motion conference before that submission
if Wells Fargo is in default?
We believe that a de novo challenge on standing would be not
only successful, but would eliminate almost all the issues in our
suit excepting the amount of compensatory and punitive damages for
which we have requested jury trial.
Additionally, the presiding judge for the Foreclosure action
will be retiring at the end of December due to age, and cannot be
recertified.
The issue of standing by Wells Fargo lacking standing in the
foreclosure action was presented to this Court in our then rushed
Affidavit to renew and reargue the holding of the Appellate Division
we attached as an evidence exhibit "01" which we showed that the
transfer of ownership of the mortgage to Wells Fargo was not only
done after the foreclosure complaint was filed, but completely done
by Wells Fargo personnel, piercing the corporate veil, but lacked
the legally required corporate resolution and limited power of
attorney to lawfully complete the transaction.
A logical holding that Wells Fargo lacked standing in the
Supreme Court then simpflies this suit as the Rooker-Feldman
challenges are moot, and a host of our allegations would become
unchallenged as fact. We will also be submitting to the Court with
that motion, pertinant holdings from the 41 page decision Noel v
Hall, No. 00-35988 D.C. No CV-99-00649-DCA [8] 09/02/03 regarding
the application of Rooker-Feldman with concurrent state actions. We
believe this challenge will be successful.
A story in the Business Section of the New York Times reported
that on Octover 9, 2009, in the federal bankruptcy court in the
Southern District of New York, ruled that "Judge Robert Drain wiped
out a $461,263 mortgage debt on the property. That's right: the
mortgage debt disappeared, via a court order" because the lender
could not come forward with proof of ownership.
SCHEDULING PRE-MOTION CONFERENCE
--------------------------------
We will want to make a request under your Rule 2 (A) Motions for
a pre-Motion Conference when we receive the answer to our questions
regarding the defaulting defendants and whether the default motions
as stated above are necessary, or require a Rule 2 (A) conference,
or that the defaulters need be present.
Websters to Judge Maas page 6/7
We will at that time request that all open matters be put on the
table so that only one conference would be necessary to narrow the
issues to the point of leaving only actual damages to be ascertained
by the court via jury trial. This would include the several open
motions currently before the Court as well our anticipated ones.
We just received word that our appeal in a similiar but directly
unrelated matter before the Appellate Division, 2d, has now been
scheduled for oral argument the morning of November 23, 2009, so
Plaintiff Scott Webster will be in New York to present oral argument
during that last week in November. When clarification of our
questions in this letter are forthcomming, we will be submitting our
letter requesting a pre-motion Conference as per #2 (A), that
hopefully can be scheduled during that week or shortly thereafter.
Thank you for your time and understanding.
Sincerely,
____________________
Scott E. Webster
Plaintiff, pro se
____________________
Jean Allen Webster
Plaintiff, pro se
cc:
District Judge Loretta Preska
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
Thomas A. Leghorn (TAL 6244)
Steven L. Young (SLY 8110)
Attorneys for;
Steven J. Baum P.C. and
Darleen V. Karaszwski
3 Gannett Drive
White Plains, NY 10604
(914) 323-7000
Fax (914) 323-7001
Your File No. 11292.00002
Noel Munier
Douglas M. Reda
Attorneys of Affordable Financial Services
and John Baldwin
180 Froehlich Farm Blvd
Woodbury, NY 11797
(516) 921-1873
Traub Lieberman Straus & Shrewsberry LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, NY 10532
Attorney for Dominick Penzetta
(845) 347-2600
Websters to Judge Maas page 7/7
Edmund Caplicki, Esq.
1133 Route 55
LaGrangeville, New York 12540
Attorneys for River City Abstract
(845) 483-0983
The below have not appeared on behalf of any party
but were included with the papers submitted by
Laura Shrewsberry Esq, and apparently have received
all moving papers by the appearing parties.
John Grisson, Esq.
Wells Fargo Law Dept
MAC X2401-06T
One Home Campus
Des Moines, IA 50328
Attorneys for Wells Fargo Bank, N.A.
and Richard M. Kovacevich, CEO
Allison Schoenthal, Esq.
Hogan & Hartson
875 Third Avenue
New York, NY 10022
Attorneys for Wells Fargo Bank, N.A.
(212) 918-3647
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