Motion To Reopen Case

http://rcxloan.com/MOTION_TO_REOPEN_CASE.htm

“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1

Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:

Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.

A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.

When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.

So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.

Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”
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UNITED STATES BANKRUPTCY COURT OF DELAWARE
Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. )


NOTICE OF MOTION TO REOPEN CASE
PURSUANT TO RULE 5010

Consumer Creditor and a Party In Interest (Pierre Richard Augustin, Pro Se) as well as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:

''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”

Likewise, “parties appearing pro se are allowed greater latitude with respect to reasonableness of their legal theories (Patterson V. Aiker, 111 F.R.D. 354, 358 [N.D. GA 1986])”. Also, the court is supposed to judge the case based on its merits even if procedural errors are made. Thus, the Court must give this Creditor and Party of Interest, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).

Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the proper adjudication of claims. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection).

The Consumer Creditor and a Party In Interest’s claim against Debtors that has arisen before the filing of bankruptcy petition has been held to be an administrative expense entitled to priority (11USC 503(b)(1)); see In re Charlesbank Laundry, Inc., 755 F.2d 200 (1st Cir. 1985) (civil fine based on debtor’s post petition conduct granted administrative expense status); In re Friendship College Inc., 737 F.2d 430 (4th Cir. 1987) (the term “estate” as used in 503(b)(1)(B)(i ) implies post-petition liabilities); see also Reading Co. v. Brown, 391 U.S. 471, 482, 88 S. Ct. 1759, 20 L. Ed. 2d 751 (1968) (post-petition tort claim is administrative expense); In re Boston Post Road Ltd. P’ship, 21 F.3d 477 (2d Cir. 1994) (tenants who are owed security deposits have administrative claims which are entitled to priority); In re Cantonwood Associates Ltd. P’ship, 138 B.R. 648 (Bankr. D. Mass. 1992).

PLEASE TAKE NOTICE, that Consumer Creditor and a Party In Interest (Pierre Richard Augustin, Pro Se) in the above name bankruptcy proceeding moves this Court before the Honorable Kevin J. Carey for an Order classifying Consumer Creditor and a Party In Interest’s ‘mortgage fraud claim’ as a consumer priority or post-petition priority claims as part of the administrative expenses of the bankruptcy estate by:

Granting the Consumer Creditor and a Party In Interest the right to reopen the debtors’ Chapter 11 pursuant to Rule 5010 of the Federal Rules of Bankruptcy Procedure;
Extend the expiration dates of the orders’ in order to permit the Consumer Creditor and a Party In Interest to exercise his rights to file his proof of post-petition priority claim after the current expiration dates of the Orders that were issued to close the 11 USC 523(c) cases against the creditors;
Allow the Consumer Creditor and a Party In Interest to exercise his rights to declare the enclosed consumer post-petition mortgage fraud priority claim (’administrative’) non-dischargeable (11 USC 523 (c)(1)) that had accrued on April 15, 2004 which was discovered in February 28, 2006. Consumer Creditor and a Party In Interest is basing his late claim filing (see attached Form B10(official form 10)) on the excusable neglect standard, Fed. R. Bank. P. 3003(c)(3) & (9006)(b)(1).
The Supreme Court has defined excusable neglect fairly liberally, to include inadvertence, mistake, or carelessness, in the context of filing a late claim in a Chapter 11 case (Pioneer Inv. Services Co. v. Brunswick Associates, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993); see Maressa v. A.H. Robins Co., 839 F.2d 220 (4th Cir. 1988); In re Int’l Horizons, Inc. 751 F.2d 1213 (11th Cir. 1985); In re Pigott, 674 F.2d 1011(3rd Cir. 1982); see also In re Pioneer Inv. Services Co., 943 F.2d 673 (6th Cir. 1991)(late claims allowable in chapter 11 based on excusable neglect standard), aff’d, 507 U.S. 380 (1993). Also, the Supreme Court has held that punitive or multiple damages which arise from such fraud are not dischargeable (Cohen v. de la Cruz, 523 U.S. 213, 118 S. Ct. 1212, 130 L. Ed. 2d 341 (1998)).


Consumer Creditor and a Party In Interest states that the Debtor (New Century Mortgage), committed fraud in connection with his mortgage transaction on April 15, 2004 which was discovered by Consumer Creditor and a Party In Interest in February 28, 2006. Also, there is strong irrefutable evidence of Civil Conspiracy in committing FRAUD because Consumer Creditor and a Party In Interest suffered injury of fact since:

Allied Home Mortgage that acted as a finder for the Debtors fraudulently (see analogous case in In re McFarland, 84 F.3d 943, 947 (7th Cir.) (entire debt no dischargeable based on false financial statement related to refinancing); (entire amount of loan, not just amount extended after false financial statement, was no dischargeable) manipulated the facts on the mortgage application by
Approving the mortgage on Consumer Creditor and a Party In Interest’s wife name despite her holding a temporary, seasonal and on call part-time employment of $80 per day that resulted in the stripping of Consumer Creditor and a Party In Interest ’s equity,
The causal connection of Allied Home Mortgage fraudulent mortgage resulted in the civil conspiracy of amongst Allied and the Debtor in benefiting from the refinance transactions while Consumer Creditor and a Party In Interest ’s debt liability surpassed his asset that contributed to Consumer Creditor and a Party In Interest ’s financial dilemma. (See United States v. Western Pacific Railroad, 352 U.S. 59, 71-73, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956); Heck v. Rodgers, 457 F. 2d 303, 307-08 (7th Cir. 1972).

The elements of civil conspiracy of Mortgage Fraud are the formation and operation of the conspiracy and damage resulting to Consumer Creditor and a Party In Interest from the act or acts done in furtherance of the common design. “In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.'' (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.)).

The act of Civil Conspiracy of Mortgage Fraud amongst Commonwealth (based on the preliminary/commitment of the title report on 3/29/2004), Allied Home Mortgage (acting as a finder for the Debtor) & Debtor added Consumer Creditor and a Party In Interest ’s wife on the mortgage by making:
-A false representation,
-The person or entity who made that false statement made it knowingly to conceal it
The receiver of that statement meaning all parties involved in the refinancing of his property believed that the title was indeed ‘clear’ especially Consumer Creditor and a Party In Interest since he was later affected by the civil conspiracy to defrauded him, and Debtor’s underwriter and Lawyer, Samuel P. Reef covered up the fact that Consumer Creditor and a Party In Interest’s wife true temporary and on call part-time work status.
-Based on that false and fraudulent statement, the Debtor’s underwriter was part of the civil conspiracy or acted upon it which stripped away all the equity in Consumer Creditor and a Party In Interest ’s property that led to the over financing of his property and all the parties benefited financially from the fraud,
-Consumer Creditor and a Party In Interest trusted and believed that all the parties involved in the refinancing of his property had a fiduciary responsibility not to deceive him by assuring that the transaction would not be to his detrimental as it turned out to be (In re Rockefeller Ctr. Props., Inc. Secs. Litig., 311 F. 3d 198, 216 (3d Cir. 2002)).

Therefore, if each participant cited above may not know the exact details of the conspiracy to still be legally liable, then by implication it is even much less required that the victim (Consumer Creditor and a Party In Interest) know the exact details of a conspiracy which is intentionally, continuously and fraudulently concealed from him. Instead, it will almost always be necessary to infer such agreements from circumstantial evidence of the existence of joint action. (Magna v. Commonwealth of N. Mariana Islands, 107 F.3d, 1447 (9th Cir. 1997)).

To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy as described above in falsifying documents to stuck Consumer Creditor and a Party In Interest with a high-cost mortgage. (Phelps Dodge v. United Steel Workers of America, 865 F.2d, 1541 (9th Cir. AZ, 1989), cert. denied 493 U.S. 809). Thus, the Debtor did not follow its standard practices as in evaluating creditworthiness or customs of the credit industry by conducting reasonable investigation of employment whereby a “red flag” would have alerted the debtor that the mortgage broker acting as a finder for the Debtor presented statement that were inaccurate and misrepresented (In re Cohn, 54 F.3d 1108 (3d Cir. 1995).

This mortgage fraud claim as described above is also based on fraud and false pretenses, fraud as a fiduciary, larceny, willful & malicious injury, defalcation (see In re Baylis, 313 F. 3d 9 (1st Cir. 2002) (defalcation requires some degree of fault, closer to fraud, without necessity of meeting a strict specific intent requirement)(11 USC 523(a)(4) and related damages as outlined in the Massachusetts Unfair and Deceptive Acts and Practices (UDAP) laws (see In re Stokes, 955 F.2d 76 (5th Cir. 1993) (damages under the Texas consumer protection act found no dischargeable based on both 11 USC 523(a)2(A) and 523(a)(6) as outline above.

Conclusion
The Supreme Court held that 11 USC 523(a)(2)(A) prevents the discharge of all liability arising from fraud and that an award of treble damages therefore falls within the scope of the exception (Cohen v. de la Cruz, 523 U.S. 213, 118 S. Ct. 1212, 130 L. Ed. 2d 341 (1998). In effect, the Court extends protection from discharge not just to multiple and punitive damages, but also to claims for litigation fees and costs and to other foreseeable consequential damages of fraud.

Consumer Creditor and a Party In Interest’s Requested Relief
In support of the instant motion and the relief requested herein the above named Consumer Creditor and a Party In Interest hereby request the Court to grant the instant motion. Consumer Creditor and a Party In Interest is not looking for sympathy. Consumer Creditor and a Party In Interest is not looking to be rewarded. Consumer Creditor and a Party In Interest is not seeking the punishment of the Debtor. However, Consumer Creditor and a Party In Interest is only asking the Court to allowed him to preserve his mortgage fraud claim(‘administrative’) or as the Court deems just and proper as nondischargeable.

WHEREFORE, Consumer Creditor and a Party In Interest respectfully request that the Court order that:
Consumer Creditor and a Party In Interest’s post-petition mortgage fraud priority claim (‘administrative’) is not dischargeable;
Designating the post-petition mortgage of mortgage fraud priority claim as an ‘administrative expense’.

Respectfully Submitted,
Pierre R. Augustin, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617)202-8069

Attorneys and Parties Served
Counsel to the Debtors
Suzzanne S. Uhland, Esq., Ben H. Logan, Esq.
Victoria Newmark, Esq., Emily R. Culler, Esq.
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701
http://www.omm.com

Co-Counsel to the Debtors
Mark D. Collins, Esq., Michael J. Merchant, Esq.
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700
http://www.rlf.com Officer of the Corporation

Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900

A. Michelle Hart McCalla Raymenr Llc 1544 Old Alabama Rd. Roswell, GA 30076, 770-643-7363


CERTIFICATE OF SERVICE

I hereby certify that a true copy of this motion was mailed to the 1) Attorneys for Debtors, 2) Debtor, 3) Creditors, 4) U.S. Attorneys and 5) to the U.S. District Bankruptcy Court of Delaware.

X ____________________________ Pierre R. Augustin, 3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 617-202-8069

VERIFICATION

I, Pierre R. Augustin, hereby depose and state as follows:

1. I am Pierre R. Augustin, represented by self.

2. I have read the foregoing Motion filed herein and knowing the contents thereof have found that the allegations of fact set forth therein are true of my own personal knowledge, except as to those allegations based on information and belief which I believe to be true.

Signed under the penalties of perjury this ________day of ____________2007.


X ________________________________

STATE OF ________________________COUNTY OF _____________________________

On this _____ day of __________, 2007, before me, the undersigned notary

public, personally appeared ___________________________, proved to me

through satisfactory evidence of identification, which was __________________________________________________, to be the person whose name is

signed on the preceding or attached document, and acknowledged to me that s/he signed it

voluntarily for its stated purpose.

______________________________
Notary Public
My Commission Expires:
(SEAL)


UNITED STATES BANKRUPTCY COURT OF DELAWARE
Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. )

AFFIDAVIT / AFFIRMATION

I, Pierre-Richard Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the Consumer Creditor and a Party In Interest in this action, and I respectfully submit this affidavit/affirmation.
2) The Motion should be granted because of the facts and circumstances outlined.
3) I have personal knowledge of facts which bear on this motion. In view of the foregoing, it is respectfully submitted that the motion should be denied.
I declare under penalty of perjury that the foregoing is true and correct, except as to those allegations based on information and belief which I believe to be true.


Dated:_______________________________________________________
Pierre-Richard Augustin, Pro Se, Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617) 202-8069
STATE OF _______________________________COUNTY OF _____________________________

On this _____ day of __________, 2007, before me, the undersigned notary public, personally appeared ___________________________, proved to me through satisfactory evidence of identification, which was _________________________________________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
(SEAL)

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I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,



it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA

P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!