Mortgage Fraud: In Search of Justice

UNITED STATES BANKRUPTCY COURT - FOR THE DISTRICT OF MASSACHUSETTS

Pierre R. Augustin, Pro Se, Debtor; Pierre R. Augustin, Pro Se, Plaintiff

[vs.] ) Adversary Proceeding No: 07-04071, Chapter 7 - Case No: 05-46985

JURY DEMANDED

Defendants: Deutsche Bank National Trust Company, ) Commonwealth Land Title Insurance comp. ) (“Commonwealth”) ) Ameriquest Mortgage, et All ) Defendants )

Motion To Object To Defendants’ Motion To Dismiss Based On Plaintiff-Debtor’s Timely Legal Objection Of Mortgage Fraud

Your Honor, “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. Therefore, the court must give a Pro Se Plaintiff, “every favorable inference arising from his pro se status” (Hall v. Dworkin, 829 F. Supp. 1403, 1409 (ND NY 1993)).

Insatiable Quest For Equal Justice
Somewhere Plaintiff-Debtor read that the greatness of America is intertwined with property rights as "the guardian of every other right". The following phrases are just one beat away from every American heart, North and South, East and West: "All men are created equal," "government by consent of the governed," "give me liberty or give me death", and “equal protection under the law” or in my situation, the pursuit for “equal justice under the law”. Well, those words, reflects the values and tradition that American have exported throughout the world in promoting democracy and freedom. Based on these principles, Americans have fought and died for two centuries. In retrospect, Martin Luther King in his infamous speech could not have said it better:

“But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. For at the real heart of battle for equality is a deep seated belief in the democratic process. Equality depends not on the force of arms or tear gas but depends upon the force of moral right; not on recourse to violence but on respect for law and order.”

In digesting the philosophical meaning of the quote above, Plaintiff-Debtor stands today with a sense of deep humility and great assurance -- humility in the wake of those great American jurists who have stood up for righteousness; assurance in the reflection that the written words, “Equal Justice Under Law”, at the facade of the United States Supreme Court signifies equal protection, fair and balance ruling in the ‘eyes of the average citizen’.

As in the words of Franklin D. Roosevelt, “Let not the keenness of our spirit ever be dulled. Let not the impacts of temporary events, of temporal matters of but fleeting moment let not these deter us in our unconquerable purpose” [in the search for equal justice under the law].

Plaintiff-Debtor addresses this court and the defense attorneys with neither rancor nor bitterness

despite the unwarranted deprivation of his ‘property rights‘, but with one purpose in mind, to:

[let the innerant truth carries the scales of justice, let equality depends upon the force of moral right, let the respect for law and order be the underlying principle for the fair and equal administration of justice and at last, but not least, Let the infallibility of Justice triumph!].

Plaintiff-Debtor has been in an uphill battle in asserting his rights in a field of nebulous legalities in this insatiable quest of justice as follows:

Plaintiff-Debtor states that (1) the Mortgage Fraud cause of action raised in his ‘Adversary Proceeding’ falls under the bankruptcy exemption of July 20, 2006 and (2)Section 522(l) operates to remove from the Bankruptcy estate interest that had become property of the estate in a fashion similar to abandonment under section 554 since according 11 USC 522(a)(2), it explicitly states that exemptions are to be determined as of the date the bankruptcy petition was filed and is analogous to Christy v. Heights Fin. Corp., 101 B.R. 542 (C.D. Ill. 1987) (debtor had standing to assert Truth in Lending claim that had been exempted)..

The difference is that the “abandonment” effectuated by Section 522(l) is automatic and Plaintiff-Debtor can participate in particular litigation independent from the estate‘s trustee (In re Gulph (woods Corp. 24 C.C.C. 2d 206, 116 B.R. 423 (Bankr. Ed. Pa. 1990) which is consistent with the Supreme Court’s decision in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644 (1992).

Fundamental Basis Of Argument
Ronald Dworkin regards law as an interpretive process under which individual rights are paramount. Therefore, let us consider the following two situation by Dworkin:

1. First Quotation by Dworkin
“An impatient beneficiary under a will murder the testator. Should he be permitted to inherit?”

2. Debtor’s Contextual Analogy of First Quotation
Chase Home Finance as an impatient beneficiary strips away Plaintiff-Debtor’s property rights despite his timely legal objections and defenses. Should Chase Home Finance be permitted to inherit the profit by depriving Plaintiff-Debtor’s of his property and rights?

3. Second Quotation by Dworkin
“A chess grand master distracts his opponent by continually smiling at him. The opponent objects. Is smiling in breach of the rule of chess?”

4. Debtor’s Contextual Analogy of Second Quotation
Chase Home Finance blind folded their eyes and put their two hands over their ears by not answering to Plaintiff-Debtor’s timely legal objections and defenses by maintaining silence. Plaintiff-Debtor objects but no one is looking or listening. Is the silence of Chase Home Finance in breach of the rules of law that led to the deprivation of Plaintiff-Debtor‘s property rights?

Argument
The first quotation mentioned above by Dworkin is “drawn from the New York Decision of Riggs v. Palmer in 1899. The will in question was validly executed and was in the murderer’s favour. But whether a murderer could inherit was uncertain: the rules of testamentary succession provided no applicable exception. The murderer should therefore have a right to his inheritance. The New York Court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Hence, a murderer could not inherit from his victim.”

According to Dworkin, in the second quotation, “the referee is called upon to determine whether smiling is in breach of the rules of chess. The rules are silent. He must therefore consider the nature of chess as a game of intellectual skill; does this include the use of psychological intimidation? He must, in other words, find the answer that best ‘fits’ and explains the practice of chess.”

1. Affirmative Defense to Motion to Dismiss based on Force Majeure
Force majeure (French for "greater force") is a common clause in contracts which essentially frees one or both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of God (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract. (see memorandum in support of adversary proceeding based on psychology and the law).

2. Affirmative Defense to Motion to Dismiss based on Mortgage Fraud
The assignee of a mortgage is subject to all claims or defenses with respect to that mortgage that the consumer could have asserted against the original creditor (New Century Mortgage). One such defense against both original creditor and assignee is Civil Conspirary for committing mortgage fraud. Civil conspiracy of defendants ('The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an 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'' by illegally and fraudulently assigned his deed on January 29, 2007 at the registry of Deed, (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 44, citing Mox Incorporated v. Woods (1927) 202 Cal. 675, 677-78.)' (Id. at 511.)). Plaintiff-Debtor has alleged that the original creditor, New Century Mortgage, committed fraud in connection with the transaction. Plaintiff-Debtor can assert such fraud as a defense to the illegal foreclosure that assignee has enforced.

A note and mortgage induced by either common law or statutory fraud is voidable. See Farm Credit Bank of St. Louis v. Isringhausen, 210 Ill. App. 3d 724, 727, 569 N.E.2d 235, 237 (4th Dist. 1991) (both fraud in the inducement and in the execution are valid defenses to action on a note); If a note and mortgage are voidable because of fraud, they do not become valid in the hands of the assignee. Plaintiff-Debtor is alleging the defense of mortgage fraud. “The rule is that an assignee of a contract takes it subject to the defenses which existed against the assignor at the time of the assignment” Allis-Chalmers Credit Corp. v. McCormick, 30 Ill. App.3d 423, 424, 331 N.E.2d 832, 833 (1st Dist 1975). Thus, the foreclosure was not warranted on that basis.

The assignee of a mortgage knows that it is not assignable at common law but only in equity and that he takes it subject to all equities existing in favor of the mortgagor. It is therefore the duty of the assignee to inquire of the mortgagor if there is any reason why it should not be paid.”); Halla v. Chicago Title & Trust Co., 412 Ill. 39, 104 N.E.2d 790 (1952); Inland Real Estate Corp. v. Oak Park Trust & Savings Bank, 127 Ill. App.3d 535, 542 469 N.E.2d 204, 209 (1st Dist. 1983) (“It is a well established general rule that the assignee of a trust deed in the nature of a mortgage takes it subject to the same defenses that existed between the original parties to the instrument”); Schoenbrod v. Rosenthal, 36 Ill. App.2d 112, 183 N.E.2d 188 (1st Dist. 1962); Ainsworth Corp. v. Cenco Inc., 107 Ill. App.3d 435, 437 N.E.2d 817 (1st Dist.1982); Matter of Neprozatis’ Estate, 62 Ill. App.3d 563, 569, 378 N.E.2d 1345, 1349 (1st Dist. 1978)(“fraud will vitiate a contract, making it voidable at the option of the defrauded party)[citation omitted]; Cain v. Cross, 293 Ill. App.3d 255, 687 N.E.2d 1141 (5th Dist.1997).

Plaintiff-Debtor alleges that there is strong irrefutable evidence of Civil Conspiracy in committing FRAUD because he suffered injury of fact since (a) Allied (Mortgage Broker/Loan Company) fraudulently manipulated the facts on the mortgage application by (b) approving the mortgage on Appellant’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 Plaintiff-Debtor’s equity, (2) the causal connection of Allied fraudulent mortgage resulted in the civil conspiracy of amongst Allied, New Century now Chase Home Finance and Deuthsche Bank National Trust and Commonwealth via assignment in benefiting from the refinance transactions while Debtor’s debt liability surpassed his asset that contributed to Debtor’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).

3. Affirmative Defense to Motion to Dismiss Of Unclean Hands
Plaintiff-Debtor’s Affirmative defenses adequately alleges that New century Mortgage
committed fraud and violated both federal and state law in connection with the mortgage
transaction. For that reason, Plaintiff-Debtor has sufficiently stated a defense of unclean hands
against the assignee, Chase Home Finance and Deuthsche National Trust Company.

4. Affirmative Defense to Motion to Dismiss based on 522(l)
Since section 522(l) operates to remove from the Bankruptcy estate interest that had become property of the estate in a fashion similar to abandonment under section 554 since according 11 USC 522(a)(2) explicitly states that exemptions are to be determined as of the date the bankruptcy petition was filed, then both Plaintiff-Debtor’s property and cause of action were properly exempt (with no prejudice or bad faith)(Kaelin v Bassett (In re Kaelin), (308 F.3d, 885 (8th Cir. 2002)), allowed a debtor to amend his schedule of exemptions to claim as exempt a cause of action soon after he learned that the cause of action existed) and has standing to defend his exempted property and to assert his property rights.

5. Affirmative Defense to Motion to Dismiss Based on Deprivation of Rights
The Supreme Court has ruled and has reaffirmed the principle that "justice must satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). Congress’ desires to provide a bankrupt-debtor (Appellant) with a “fresh start” justifies the fact that under the former Bankruptcy Act (5 Collier on Bankruptcy, ¶541.HH[1]-[3] (15th Ed. Rev. 2005), exempt property never became property of the estate.

Exempt property is property that the debtor can retain and therefore not available for distribution to creditors (see 4 Collier on Bankruptcy, Paragraph 521.12 (15th ed. Rev.). Plaintiff-Debtor’s claimed of exemption on his principal dwelling was not objected by neither the Trustee nor the creditors. Also, Plaintiff-Debtor’s filed to exempt his causes of action on July 3, 2006 and was granted by the Bankruptcy Court with no objection on July 20, 2006.

Consequently, those two interests ceased being property of the estate by operation of Section 522(l), when neither the Trustee nor any of the creditors filed an objection within the deadline, as soon as the deadline under Fed. R. Bank. P. 4003(b) had passed. Section 522(l), then, operates to remove from the Bankruptcy estate interest that had become property of the estate in a fashion similar to abandonment under section 554. That interpretation is consistent with the Supreme Court’s decision in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644 (1992). Thus, the asset would be treated as if the bankruptcy petition had never been filed, leaving the Debtor free to pursue the causes of action for himself.

Thus, Plaintiff-Debtor shows and alleges that (1) the Mortgage Fraud cause of action raised in his ‘Adversary Proceeding’ falls under the bankruptcy exemption of July 20, 2006 and (2) Section 522(l), then, operates to remove from the Bankruptcy estate interest that had become property of the estate in a fashion similar to abandonment under section 554. The difference is that the “abandonment” effectuated by Section 522(l) is automatic and Debtor can participate in particular litigation independent from the estate‘s trustee (In re Gulph (woods Corp. 24 C.C.C. 2d 206, 116 B.R. 423 (Bankr. Ed. Pa. 1990) which is consistent with the Supreme Court’s decision in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644 (1992). Put another way, abandonment moots any dispute about whether an asset is exempt (S. Rep. 95-989, at 75-76, reprinted in 1978 U.S.C.C.A.N. 5787, 5861-62; H.R. Rep. 95-595, at 549, reprinted in 1978 U.S.C.C.A.N. 5963, 6455.

6. Affirmative defense to Motion to Dismiss based on 11 USC 522(a)(2)
Because Plaintiff-Debtor’s home was sold after he filed for bankruptcy, the exemption is preserved since 522(a)(2) explicitly states that exemptions are to be determined as of the date the bankruptcy petition was filed. 11 USC 522(a)(2) fixes the exemptions as of the date of filing. (See In re Sadkin, 36 F.3d 473 (5th Cir. 1994)(even if exemption is without merit, failure of any party to file a timely objection results in allowance of exemption); In re Green, 31 F.3d 1098 (11th Cir. 1994) (if no party challenges debtor’s valuation of asset claimed as fully exempt, Plaintiff-Debtor is entitled to exempt the entire asset regardless of what the value ultimately proves to be); In re Morgan-Busby, 272 B.R. 257 (B.A.P. 9th Cir. 2002) (deadline for objections includes objections based on valuation of property clearly claimed as exempt).

7. Affirmative defense to Motion to Dismiss based on Exempt Property
Once property is exempt by virtue of the expiration of the deadline for objections as outlined in this motion, nothing prevents the debtor for initiating this adversary proceeding to recover his property. (Wissman v. Pittsburgh Nat’l Bank, 942 F.2d 867 (4th Cir. 1991) (debtors may pursue an exempt cause of action in order to recover their exemption); Ball v. Nationscredit Fin. Serv. Corp., 207 B.R. 869 (N.D. Ill. 1997) (exempt property reverts in debtor when time to object to exemptions expires); Seifert v. Selby, 125 B.R. 174 (E.D. Mich. 1989) (absent timely objection, exempt property revests in the debtor and is no longer property of the estate).

8. Affirmative Defense to Motion to Dismiss Based on Section 522(c)
An important feature of the bankruptcy exemption scheme is the continuing protection given to exempt property after the discharge. Section 522(c) provides that no creditor holding a pre-bankruptcy claim may ever execute against the property that has been claimed as exempt. The principal significance of this subsection is that even creditors holding claims that were not discharged may not reach exempt property to execute on their still-valid claims whereas Plaintiff-Debtor did timely and legally rescinded the mortgage.

Thus, if a debt is not discharged because of a false financial statement, because the debt was not listed, because of fraud or willful and malicious injury or on a student loan, the Plaintiff-Debtor may nevertheless be fully protected from execution on that debt if she has no property except the property exempted in the bankruptcy case. This provision serves the obvious purpose of ensuring that the debtor’s fresh start is not frustrated by pre-existing debts. It gives the exemptions a permanent character, protecting that minimum grubstake afforded by the exemption provisions from almost every attack arising out of the debtor’s pre-bankruptcy circumstances. (In re Farr, 278 B.R. 171 (B.A.P. 9th Cir. 2002).

9. Affirmative Defense based on the Supreme Court and Exemptions Precedents
As the Supreme Court observed in Taylor, “[d]eadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.” Taylor v. Freedland & Konz, 503 U.S. at 644, 112 S.Ct. at 1648. Taylor honored Congress by giving effect to what it had enacted through Section 522(l) and what it had adopted through through F.R.B.P.4003(b). The Trustee and Creditors were on notice that the Plaintiff-Debtor intended to keep the property claimed as exempt. The Trustee and creditors chose not to object to Plaintiff-Debtor’s exemption of his property and cause of action which were authorized by the Bankruptcy court with no objection. Thus, there can be no fresh start unless Plaintiff-Debtor can be assured that the property he has claimed has exempt is free of subsequent efforts by the creditors to set aside and deprive that right and protection.

Plaintiff-Debtor’s amendment is analogous to the Equitable tolling which is a principle of tort law stating that a statute of limitations shall not bar a claim in cases where the Plaintiff-Debtor, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. "Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996).

The Court of Appeals for the Eight Circuit in Kaelin v Bassett (In re Kaelin), (308 F.3d, 885 (8th Cir. 2002)), allowed a debtor to amend his schedule of exemptions to claim as exempt a cause of action soon after he learned that the cause of action existed is analogous to Plaintiff-Debtor acted to exempt his cause of action upon the discovery that it had to be listed in his bankruptcy schedules. Because the debtor in Kaelin acted promptly to exempt the cause of action and because the debtor had not concealed the property, the court found that no bad faith existed.

The Supreme Court unequivocally said in Taylor that the 30-day period by Fed. R. Bankr. P. 4003(b) set a clear deadline within which the trustee or another party in interest must object to an exemption claimed by the Plaintiff-Debtor. However, equally important in Taylor is a separate determination by the court: [that the property of the estate that is claimed as exempt ceases being property of the estate once the deadline passes without objection]. Thus, Section 522(l) operates to remove from the bankruptcy estate interests that had become property of the estate. Congress’ desire to provide a bankrupt debtor with a “fresh start” justifies this difference. Exempt property never became property of the estate (See generally, 5 Collier on Bankruptcy, ¶541.HH[1]-[3], (15th Ed. Rev. 2005).

10. Affirmative Defense based on the Supreme Court and the Rooker-Feldman Doctrine
The Supreme Court has also made it clear that the Rooker-Feldman doctrine does not apply if the federal plaintiff was not a party to the state case, even if the parties were in privity (See Lance v. Dennis, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006),(Accord Mercado v. Playa Realty Corp., 2005 WL 1594306 (E.D.N.Y. July 7, 2005).

The doctrine also does not apply if the consumer could not have raised the TIL claim in the state court proceeding (Bush v. SA Mortgage Serv. Co., 2005 WL 1155851 (E.D. La. May 9, 2005)(tax sale case; when notice of state court proceeding was allege to be constitutionally inadequate, plaintiff did not have reasonable opportunity to raise federal claim, Rooker-Feldman doctrine is inapplicable).
Plaintiff-Debtor was never a party in state court with any of the creditors nor did he ever has the opportunity to raise any defenses in state proceeding. Thus, the Rooker-Feldman doctrine does not apply if the federal plaintiff presents some independent claim, even if the claim denies a legal conclusion that a state court has reached in a case to which the plaintiff was a party. Once again, Plaintiff-Debtor was never a party in any state court proceedings (see In re Ameriquest Mortgage Co., 2006 WL 1525661 (N.D. ILL. May 30 2006)(granting preliminary injunction ordering creditor to preserve potential defenses to foreclosures), (Exxon Mobil Corp v. Saudi Basis Indus, Cop. 125 S. Ct. 1527 (2005)).

11. Federal Rule Of Civil Procedure 12 (B)(6)
A 12(b)(6) motion does not test the evidentiary sufficiency of a Plaintiff-Debtor's claim. Instead, it assumes that if the case were to go to trial, Plaintiff-Debtor would be able to prove all of the allegations in his adversary complaint. Thus, the sole question posed by a 12(b)(6) motion is whether Plaintiff-Debtor allegations are legally sufficient to allow recovery based on his ability to prove them at trial.

Even if at the time of filing, Plaintiff-Debtor lacks evidence to prove certain key allegations to be as long as the Plaintiff-Debtor believes they are "likely to have evidentiary support after a reasonable opportunity for further investigation or discovery..." As the Federal Rules Advisory Committee explained, "sometimes a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation." Advisory Committee Note, 1993 Amendments, 146 F.R.D. 401, 585.

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the Plaintiff-Debtor's claims for relief; therefore the motion admits, for purposes of the motion only, the factual allegations of the pleading, but asserts that those allegations cannot support any claim for relief.
In reviewing the sufficiency of the complaint, the issue is not whether the Plaintiff-Debtor will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims asserted. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Also, if a defense of failure to state a claim is sustained under rule 12(b)(6), the pleader should usually be given the opportunity to amend the pleading to cure its deficiencies. See Moore's Federal Practices, § 12.34[5] (Matthew Bender 3d ed.). In Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th cir. 2001) whereby district court erred in not only resolving disputed factual issues, but in even considering them, because motion under Rule 12(b)(6) tests only legal sufficiency of claims, not factual sufficiency; Morse v. Regents of the Univ. of Colorado, 154 F.3d 1124, 1127-1129 (10th Cir. 1998), though pleaded theory was insufficient, facts alleged supported another theory of liability so dismissal was improper; Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1204-1206 (7th Cir. 1998), dismissal reversed when Plaintiff-Debtor's allegations arguably stated claim under Family and Medical Leave Act.

12. Affirmative Defense of TILA By Way Of Recoupment
In In re Coxson, 43F.3d 189 (5th Cir. 1995), the 5th Circuit concluded That a Truth in Lending Act claim could be raised defensively by way of an adversary proceeding. Plaintiff-Debtor is reframing all his previously claims for TILA and other consumer violations by way of recoupment since they can be used to raise fraud, unfair trade practice and other damage claims emerging from the facts giving rise to the formation of the loan contract. See Beach v. Ocwen Fed. Sav. Bank, 523 U.S. 410, 118 S. Ct/ 1408, 140 L. Ed 2d 566 (1998) (limiting Truth in Lending right of rescission by recoupment to situations where it is permitted after foreclosure by state law as in Massachusetts), see Matter of Coxson, 43 F.3d 189, 194 (5 th Cir. 1995) (allowing a debtor to bring a TILA claim for recoupment by way of adversary proceeding more than one year after the alleged violations took place); Roberson v. Cityscape Corp. (In re Roberson), 262 B.R. 312, 322 (Bankr. D. Pa. 2001) (holding that “TILA does not bar Plaintiff from raising her claim against [the lender] defensively,” Plaintiff could bring her claim by way of recoupment); Shaw v. Federal Mortg. & Inf. Corp. (In re Shaw), 178 B.R. 380 (Bankr. D.N.J. 1994) (noting that “The right of a debtor in bankruptcy to invoke the doctrine of recoupment, as authorized by 15 U.S.C. § 1640(e) has been recognized again and again”); and In re Jones, 122 B.R. 246 (D. Pa. 1990) (holding that when TILA violations arise from the same transaction and is brought as a defense, TILA claim is a recoupment defense and is not barred by 15 U.S.C. § 1640(d)).

13. No Judicial Estoppel
The equitable tolling principles are to be read into every federal statute of limitations unless Congress expressly provides to the contrary in clear and ambiguous language, (See Rotella v. Wood, 528 U.S. 549, 560-61, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000)). Since TILA does not evidence a contrary Congressional intent, its statute of limitations must be read to be subject to equitable tolling, particularly since the act is to be construed liberally in favor of Plaintiff.

The filing of Bankruptcy tolls or extends the rescission time since Plaintiff had filed for bankruptcy on September 26, 2005 and obtained a discharge on September 26, 2006. Also, the principle of equitable tolling does apply to TILA 3 years period of rescission since despite due diligence, Plaintiff could not have reasonably discovered the concealed fact of TILA violations in-depth and explicitly until September 17, 2006 at about 5 a.m. as in Kaelin v Bassett (In re Kaelin), (308 F.3d, 885 (8th Cir. 2002) (allowed a debtor to amend his schedule of exemptions to claim as exempt a cause of action soon after he learned that the cause of action existed). See also In re Baldwin, 307 B.R. 251 (M.D. Ala. 2004) (judicial estoppel did not apply because debtor was not aware of lender liability claim when bankruptcy filed and later promptly amended schedules), (Hoffman v. Truck Driving Academy, Inc., 777 So. 2d. failed to show it was prejudiced by debtor’s failure to disclose claims in bankruptcy).

14. Plaintiff-Debtor Made Proper Service To Ameriquest Mortgage
Under rule 5(b)(2)(B), service may be made by mail at the attorney’s or party’s “last known address”, FRCP(4)(f)(3), (see Exhibit #1, service made by U.S. Marshall at the same “last known address“) and is complete on the date of the mailing and the date of receipt is of no consequence (see Russell v. City of Milwaukee, 338 F. 3d 662, 665-667 (7th Cir. 2003). If a party is represented by multiple attorneys, serving any of the attorney is sufficient (see Buchanan v. Shenill, 51 F. 3d 227, 228 (10th Cir. 1995). For purpose of this rule, the date of mailing is the date the paper was deposited in a mailbox or delivered to the post office (see Theede v. United States Dept. of Labor, 172 F.3d 1262, 1266 (10th Cir. 1992). Also, according to F.R.C.P. Rule 4(d)(3), “mailing a copy to the defendant” as proper service.

The use of certified mail to achieve service of process meets the requirements of Rule 7004(b) (See Exhibit #2) (see In re Ted A. Ptetros furs, Inc., 31 C.B.C. 2d 1614, 172 B.R. 170 (Bankr. E.D. N. Y. 1994). Service is complete when properly issued summons is placed in the mail together with the complaint (see In re Coforth, 33 C.B.C. 2d 985, 183 B.R. 560 (Bankr. W.D. Ark. 1995) according to 7004(b). Thus, the mere statement provided by Ameriquest Mortgage that the summons and complaint were not received is insufficient to rebut proof that the documents were properly mailed and therefore served (see In re Cossio, 163 B.R. 150 (B.A.P. 9th 1994), aff’d, 56 F.3d 70 (9th Cir. 1995).

CONCLUSION
1. Debtor has Standing
The bankruptcy code states that “The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. … Unless a party in interest objects, the property claimed as exempt on such list is exempt.” 11 USC 522(l). No one had objected to Plaintiff-Debtor’s claims of exemption of his property and cause of action. Until someone objects and until that objection is sustained, the property claimed exempt is exempt and is analogous to Christy v. Heights Fin. Corp., 101 B.R. 542 (C.D. Ill. 1987) (debtor had standing to assert Truth in Lending claim that had been exempted).

The creation of a bankruptcy estate does not extinguish a chapter 7 debtor’s property rights to exempt or removed property from the estate (see In re Hodes, 402 F.3d 1005, 1010 (10th Cir. 2005)(Stating that exemption is an interest of the debtor carved out of the bankruptcy estate for the benefit of the debtor and thereby shielded creditors claims), (See also in re Moreira, 173 B.R. 965 (Bank. D. Mass 1994) whereby the court held that the exemption claim was enough to confer standing (11 USC 522(b) and 11 USC 522(l)). The proper balance is for the Plaintiff-Debtor’s property claimed exempt to remain in the Plaintiff-Debtor’s possession and control since the time has run out to object (Rule 4003(b)).

In reality, the trustee has no interest, economic or practical, in obtaining possession of exempt property or in assisting Plaintiff-Debtor in regaining possession of exempt property taken from him through an illegal foreclosure. Trustee need not abandon exempt property in order for it to cease being property of the estate; it is enough that Trustee does not timely object to claimed exemption (Bankruptcy, 11 USCA 541 & 544). The Plaintiff-Debtor should not be required to rely on a trustee in bankruptcy whose interest are in conflict with him to protect his statutory rights to exempt property. The Trustee and the Plaintiff-Debtor have different roles and rights in the bankruptcy process. The Plaintiff-Debtor has express statutory authority to exempt property at the time of filing the petition as described in 11 USC 522(a)(2).

A person has standing if the Bankruptcy Court order “diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights.” Williams v. Marlar (In re Marlar), 267 F.3d 749, 753 n.1 (8th Cir. 2001). Please review other Memorandum on Psychology as to why Debtor could not have known of a possible cause of action existed based on the principle of 'equitable tolling'.

The mere loss of a statutory right to disclosure is an injury that gives Plaintiff-Debtor standing for Article III purposes (DeMando v. Morris, 206 F.3d 1300 (9th Cir. 2000). Also, he exempted his causes of action from the estate in good faith and no objection was filed. Thus, Plaintiff-Debtor states that (1) the ‘Mortgage Fraud’ cause of action falls under the bankruptcy exemption on July 20, 2006 and (2) Section 522(l), then, operates to remove from the Bankruptcy estate interest that had become property of the estate in a fashion similar to abandonment under section 554. The difference is that the “abandonment” effectuated by Section 522(l) is automatic and Plaintiff-Debtor can participate in particular litigation independent from the estate‘s trustee (In re Gulph (woods Corp. 24 C.C.C. 2d 206, 116 B.R. 423 (Bankr. Ed. Pa. 1990). That interpretation is also consistent with the Supreme Court’s decision in Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644 (1992).

Plaintiff-Debtor did claim federal and homestead exemption of his residence, thus, he has retained an interest in the dwelling. Having retained an interest, Plaintiff-Debtor is permitted to exercise his rights after the filing of petition (Ralph J Rohner and Fred H. Miller, Truth in Lending ¶8.02[2][a] (2000), (see In re Celona, 90 B.R. 104 (Bankr. E.D. Pa. 1988), (In re Melvin, 75 B.R. 952 (Bank. E.D. Pa. 1987), (In re Tucker, 74 B.R. 923 (Bank. Ed. Pa. 1987)) and Rule 6009 provides the right to prosecute and defend cases without the need for bankruptcy court approval. Thus, Plaintiff-Debtor has standing to defend exempt property or pursue exempted cause of action (see In re Kaelin, 308 F.3d 885 (8th Cir. 2002) (debtor could exempt recently discovered cause of action because debtor had acted promptly to amend exemptions after learning of its existence) which have ceased being property of the estate pursuant to Plaintiff-Debtor’s claim of exemption (bankruptcy code 11 USCA 522(a)(2)).

2. Debtor’s Requested Relief for Equal Justice
Plaintiff-Debtor is not looking for sympathy. Plaintiff-Debtor is not looking to be rewarded. Plaintiff-Debtor is not seeking the punishment of the defendants. However, Plaintiff-Debtor is only asking to be allowed to defend his properly exempted (with no objection) property (his home and cause of action) rights in front of a jury that that the law allows him to do in his quest to recover his property. (See Ryan Operations, Gen. P’ship v.. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996) (suit on claim not listed in bankruptcy schedules not barred by judicial estoppel, as debtor had not attempted to play fast and loose with rules and failure to list claim had no impact on bankruptcy case); (Elliot v. ITT Corp., 150 B.R. 36 (N.D. Ill. 1992) (failure to initially schedule debt as disputed or note cause of action did not estop debtors from raising consumer protection claims against creditor after those claims were discovered).

The Chase mortgage in question is fraudulent as outline above because somebody else (New Century Mortgage) did something wrong out of lack of due care, act of negligence and failure to exercise reasonable care that has not only injured the Plaintiff-Debtor, but also deprived him of his property rights. This Adversary Proceeding seeks to nullify the mortgage based on ‘Fraud’ as an equitable action and as a defensive measure against the illegal foreclosure in order for Plaintiff-Debtor to recover his exempted property. Paradoxically, a trustee has no interest, economic or practical, in obtaining possession of exempt property or in assisting a debtor in regaining possession of exempt property taken from him through an illegal foreclosure. Thus, the defendants should be responsible for their acts, not the debtor, the innocent victim of corporate financial greed and manipulation.

Your Honor, in this insatiable quest of justice, Plaintiff-Debtor moves the Court to: let the innerant and irrefutable truth of mortgage fraud resound in the conscience of man, let equality depends upon the force of moral right, let the respect for law and order be the underlying principle for the formulation of justice and at last, but not least, Let the infallibility of Justice triumph because it is [Right] in the eye of man and God.

Respectfully submitted,
Pierre R. Augustin, Pro Se, Plaintiff-Debtor, 28 Cedar Street, Lowell, MA 01852, Tel: 617-202-8069

Emergency Request to STOP Predatory Loan by Chase Home Finance

Emergency Request for Help to Stop Chase Home Finance's from Evading Predatory Loan Practices

Summary
Given that all reasonable efforts have failed to stop Chase Home Finance’s Fraudulent Foreclosure, this emergency request to avoid these irreparable harms is in line with the law of public policy, public interest and justice.

Lowell, Massachusetts, May 8, 2007 - Mr. Pierre Augustin of Lowell, Massachusetts, a victim of predatory lending, has timely and legally invoked the Truth-in-lending Act (TILA) right of rescission pursuant to 15 U.S.C. §1635 and M.G.L. c. 140D 10(f) and 260 § 5A to protect his property rights. Thus, the mortgage on his property is considered void and unenforceable upon rescission according to the law enacted by Congress.

Despite Mr. Augustin’s legal objections and defenses, Chase Home Finance & Deuthsche Bank National Trust are going forward with their illegal and fraudulent foreclosure action which is clearly improper and immoral. Silence is consent. Would you please make every effort to help stop this Fraud? Next time, it might be you.

“Unequivocally, to allow these foreclosure proceedings to go any further will not only be a gross injustice but will violate all notions of public policy, will trample the spirit of the law and will violate the equal protection principle as well as disregard the notion of the pledge of allegiance of the United States of America Pledge that states “one nation under God, indivisible, with liberty [and justice for all]”, said Mr. Augustin

TILA is a remedial statute designed to protect and to defend consumer’s property rights such as Mr. Augustin’s, who is not on equal footing with lenders such as Chase Home Finance or Deuthsche Bank National Trust, who are powerful corporations with unlimited budget and who are represented by the most savvy lawyers of Partridge, Snow and Hahn, LLP, Providence, Rhode Island, Tel. (401) 861-8293, who are determined to violate and to usurp the law to achieve their aim of stripping away his home illegally and fraudulently.

This is an emergency request and alert to the public, consumer protection organizations and public officials to stop Chase Home Finance and Deuthsche Bank National Trust since all other remedies, reasonable and good faith efforts have failed. The auction sale scheduled on May 16, 2007 will be irreversible and render any subsequent and pending legal actions moot. Mr. Augustin can be reached at 617.202.8069.

# # #

Qualified Written Letter Sent to Chase Home Finance and Deutsche National Trust Company

Pierre R. Augustin, Pro Se
28 Cedar Street
Lowell, MA 01852
Tel: 617-202-8069


April 12, 2007


Attorney Charles Lovell
Attorney for Chase Home Finance
and Deutsche Bank National Trust
Providence, RI 02903

Dear Attorney Charles:

In honoring your request to respond to your letter dated April 4, 2007, I am not waiving any rights under TILA, including the 20-day respond period that had expired since October 10, 2006. I categorically reject all allegations made on that letter since my TILA rescission notice sent to you on September 21, 2006, has precedence, negate your foreclosure actions and voided the security interest in my property.

Please treat this letter as a “qualified written request” under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e). Mr. Pierre R. Augustin, Pro Se disputes this debt and notice of foreclosure since on September 21, 2006, you have received a TILA notice of rescission which voided the security interest and the note on his principal dwelling.

Therefore, I must point out that you are in:

· Violation of the Truth-In-Lending Act (TILA) notice of rescission sent to defendants on September 21, 2006 which automatically void the security interest in my property. (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b).

· Violations of the Federal Fair Debt Collection Practices Act and Massachusetts Debt Collection Laws, Violation of the Fair Credit Reporting ACT and seeking punitive damages per 15 USC 1681 n(a)(2), 15 USC 1681o, 15 USC 1692e(8).

· Violation of Statute of Limitation. If you or any of the defendants disputes the plaintiff’s right to rescind, they should have filed a declaratory judgment action within twenty days after receiving the rescission notice, before the deadline of October 10, 2006 to return the plaintiff’s money or property and record the termination of its security interest according to 15 USC 1635(b).

· On November 15, 2006, you and all the other defendants were on notice that they were in default for TILA violations (see docket # 80, Case #: 06-10368).

· Violation of the statute of limitations and fraudulent assignment of the mortgage. Without a security interest in the plaintiff’s property, New Century Mortgage, Chase Home Finance, Deuthsche Bank National Trust and any other parties do not have the authority to foreclose or to assign neither the mortgage nor the note.

· Violation of the Federal Rule of Civil Procedure 17(a), (East Coast Properties v. Galang, 308 A.D.2d 431, 765 N.Y.S.2d 46 (N.Y. App. Div. 2003). Neither you nor any of the defendants are Real Party in Interest or Holder in Due Course, since the TILA notice of rescission automatically voids the security interest.

· Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).

In summary, Mr. Augustin states that the mortgage is not valid and in violation of TILA (failure to respond to TILA rescission notice by October 10, 2006) by not complying with required procedures. Without an interest in the debt, you do not have the authority to foreclose since you do not have an enforceable security in the property because the mortgage and note assignment were improper and ineffective.

If you are not the current holder of the note and mortgage relating to Mr. Pierre R. Augustin’s mortgage account, please provide the name and address of said true owner of the obligation (15 USC, 1641(f)(2)) or holder and indicate your relationship to this entity. Therefore, absent of transferring debt precludes action for foreclosures because the assignment of the mortgage alone is a nullity, the note cannot be enforced and in violation of U.C.C. requirement. This is a Fraudulent maneuver.

Mr. Augustin loan account should be zero due to TILA rescission notice. Thus, the Loan account is in error. In invoking the protection of the service act, Mr. Pierre R. Augustin is challenging this notice of foreclosure since the foreclosure proceeding is erroneous (12 USC 2602(1)(a). Do take the necessary action to correct this error in responding to this qualified written request by complying with 12 USC 2605(d), 12 USC 2605(e) and 12 USC 2505(f). Thank you for taking the time to acknowledge and answer this request as required by the Real Estate Settlement Procedures Act (sec. 2605(e)).

Sincerely,
Pierre R. Augustin, MPA, MBA

617-202-8069

STOP Illegal Foreclosure by Chase Home Finance

Emergency Request for Help to Stop Fraudulent Foreclosure Action by Chase Home Finance

Summary
Given that all reasonable efforts have failed to stop Chase Home Finance’s Fraudulent Foreclosure, this emergency request to avoid these irreparable harms is in line with the law of public policy, public interest and justice.

Lowell, Massachusetts, May 8, 2007 - Mr. Pierre Augustin of Lowell, Massachusetts, a victim of predatory lending, has timely and legally invoked the Truth-in-lending Act (TILA) right of rescission pursuant to 15 U.S.C. §1635 and M.G.L. c. 140D 10(f) and 260 § 5A to protect his property rights. Thus, the mortgage on his property is considered void and unenforceable upon rescission according to the law enacted by Congress.

Despite Mr. Augustin’s legal objections and defenses, Chase Home Finance & Deuthsche Bank National Trust are going forward with their illegal and fraudulent foreclosure action which is clearly improper and immoral. Silence is consent. Would you please make every effort to help stop this Fraud? Next time, it might be you.

“Unequivocally, to allow these foreclosure proceedings to go any further will not only be a gross injustice but will violate all notions of public policy, will trample the spirit of the law and will violate the equal protection principle as well as disregard the notion of the pledge of allegiance of the United States of America Pledge that states “one nation under God, indivisible, with liberty [and justice for all]”, said Mr. Augustin

TILA is a remedial statute designed to protect and to defend consumer’s property rights such as Mr. Augustin’s, who is not on equal footing with lenders such as Chase Home Finance or Deuthsche Bank National Trust, who are powerful corporations with unlimited budget and who are represented by the most savvy lawyers of Partridge, Snow and Hahn, LLP, Providence, Rhode Island, Tel. (401) 861-8293, who are determined to violate and to usurp the law to achieve their aim of stripping away his home illegally and fraudulently.

This is an emergency request and alert to the public, consumer protection organizations and public officials to stop Chase Home Finance and Deuthsche Bank National Trust since all other remedies, reasonable and good faith efforts have failed. The auction sale scheduled on May 16, 2007 will be irreversible and render any subsequent and pending legal actions moot. Mr. Augustin can be reached at 617.202.8069.

# # #

Qualified Written Letter Sent to Chase Home Finance and Deutsche National Trust Company

Pierre R. Augustin, Pro Se
28 Cedar Street
Lowell, MA 01852
Tel: 617-202-8069


April 12, 2007


Attorney Charles Lovell
Attorney for Chase Home Finance
and Deutsche Bank National Trust
Providence, RI 02903

Dear Attorney Charles:

In honoring your request to respond to your letter dated April 4, 2007, I am not waiving any rights under TILA, including the 20-day respond period that had expired since October 10, 2006. I categorically reject all allegations made on that letter since my TILA rescission notice sent to you on September 21, 2006, has precedence, negate your foreclosure actions and voided the security interest in my property.

Please treat this letter as a “qualified written request” under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e). Mr. Pierre R. Augustin, Pro Se disputes this debt and notice of foreclosure since on September 21, 2006, you have received a TILA notice of rescission which voided the security interest and the note on his principal dwelling.

Therefore, I must point out that you are in:

· Violation of the Truth-In-Lending Act (TILA) notice of rescission sent to defendants on September 21, 2006 which automatically void the security interest in my property. (Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b).

· Violations of the Federal Fair Debt Collection Practices Act and Massachusetts Debt Collection Laws, Violation of the Fair Credit Reporting ACT and seeking punitive damages per 15 USC 1681 n(a)(2), 15 USC 1681o, 15 USC 1692e(8).

· Violation of Statute of Limitation. If you or any of the defendants disputes the plaintiff’s right to rescind, they should have filed a declaratory judgment action within twenty days after receiving the rescission notice, before the deadline of October 10, 2006 to return the plaintiff’s money or property and record the termination of its security interest according to 15 USC 1635(b).

· On November 15, 2006, you and all the other defendants were on notice that they were in default for TILA violations (see docket # 80, Case #: 06-10368).

· Violation of the statute of limitations and fraudulent assignment of the mortgage. Without a security interest in the plaintiff’s property, New Century Mortgage, Chase Home Finance, Deuthsche Bank National Trust and any other parties do not have the authority to foreclose or to assign neither the mortgage nor the note.

· Violation of the Federal Rule of Civil Procedure 17(a), (East Coast Properties v. Galang, 308 A.D.2d 431, 765 N.Y.S.2d 46 (N.Y. App. Div. 2003). Neither you nor any of the defendants are Real Party in Interest or Holder in Due Course, since the TILA notice of rescission automatically voids the security interest.

· Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).

In summary, Mr. Augustin states that the mortgage is not valid and in violation of TILA (failure to respond to TILA rescission notice by October 10, 2006) by not complying with required procedures. Without an interest in the debt, you do not have the authority to foreclose since you do not have an enforceable security in the property because the mortgage and note assignment were improper and ineffective.

If you are not the current holder of the note and mortgage relating to Mr. Pierre R. Augustin’s mortgage account, please provide the name and address of said true owner of the obligation (15 USC, 1641(f)(2)) or holder and indicate your relationship to this entity. Therefore, absent of transferring debt precludes action for foreclosures because the assignment of the mortgage alone is a nullity, the note cannot be enforced and in violation of U.C.C. requirement. This is a Fraudulent maneuver.

Mr. Augustin loan account should be zero due to TILA rescission notice. Thus, the Loan account is in error. In invoking the protection of the service act, Mr. Pierre R. Augustin is challenging this notice of foreclosure since the foreclosure proceeding is erroneous (12 USC 2602(1)(a). Do take the necessary action to correct this error in responding to this qualified written request by complying with 12 USC 2605(d), 12 USC 2605(e) and 12 USC 2505(f). Thank you for taking the time to acknowledge and answer this request as required by the Real Estate Settlement Procedures Act (sec. 2605(e)).

Sincerely,
Pierre R. Augustin, MPA, MBA

617-202-8069

Emergency Request for Help to Stop Fraudulent Foreclosure Action by Chase Home Finance

Summary
Given that all reasonable efforts have failed to stop Chase Home Finance’s Fraudulent Foreclosure, this emergency request to avoid these irreparable harms is in line with the law of public policy, public interest and justice.

Lowell, Massachusetts, May 8, 2007 - Mr. Pierre Augustin of Lowell, Massachusetts, a victim of predatory lending, has timely and legally invoked the Truth-in-lending Act (TILA) right of rescission pursuant to 15 U.S.C. §1635 and M.G.L. c. 140D 10(f) and 260 § 5A to protect his property rights. Thus, the mortgage on his property is considered void and unenforceable upon rescission according to the law enacted by Congress.

Despite Mr. Augustin’s legal objections and defenses, Chase Home Finance & Deuthsche Bank National Trust are going forward with their illegal and fraudulent foreclosure action which is clearly improper and immoral. Silence is consent. Would you please make every effort to help stop this Fraud? Next time, it might be you.

“Unequivocally, to allow these foreclosure proceedings to go any further will not only be a gross injustice but will violate all notions of public policy, will trample the spirit of the law and will violate the equal protection principle as well as disregard the notion of the pledge of allegiance of the United States of America Pledge that states “one nation under God, indivisible, with liberty [and justice for all]”, said Mr. Augustin

TILA is a remedial statute designed to protect and to defend consumer’s property rights such as Mr. Augustin’s, who is not on equal footing with lenders such as Chase Home Finance or Deuthsche Bank National Trust, who are powerful corporations with unlimited budget and who are represented by the most savvy lawyers of Partridge, Snow and Hahn, LLP, Providence, Rhode Island, Tel. (401) 861-8293, who are determined to violate and to usurp the law to achieve their aim of stripping away his home illegally and fraudulently.

This is an emergency request and alert to the public, consumer protection organizations and public officials to stop Chase Home Finance and Deuthsche Bank National Trust since all other remedies, reasonable and good faith efforts have failed. The auction sale scheduled on May 16, 2007 will be irreversible and render any subsequent and pending legal actions moot. Mr. Augustin can be reached at 617.202.8069.

# # #

Qualified Written Letter Sent to Chase Home Finance and Deutsche National Trust Company

Pierre R. Augustin, Pro Se
28 Cedar Street
Lowell, MA 01852
Tel: 617-202-8069

April 12, 2007

Attorney Charles Lovell
Attorney for Chase Home Finance and Deutsche Bank National Trust Providence, RI 02903
Dear Attorney Charles:

In honoring your request to respond to your letter dated April 4, 2007, I am not waiving any rights under TILA, including the 20-day respond period that had expired since October 10, 2006.

I categorically reject all allegations made on that letter since my TILA rescission notice sent to you on September 21, 2006, has precedence, negate your foreclosure actions and voided the security interest in my property.

Please treat this letter as a “qualified written request” under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e). Mr. Pierre R. Augustin, Pro Se disputes this debt and notice of foreclosure since on September 21, 2006, you have received a TILA notice of rescission which voided the security interest and the note on his principal dwelling.

Therefore, I must point out that you are in:

· Violation of the Truth-In-Lending Act (TILA) notice of rescission sent to defendants on September 21, 2006 which automatically void the security interest in my property(Reg. Z §§ 226.15(a)(2), 226.23(a)(2), Official Staff Commentary § 226.23(a)(2)-1) and 15 U.S.C. § 1635(b).

· Violations of the Federal Fair Debt Collection Practices Act and Massachusetts Debt Collection Laws, Violation of the Fair Credit Reporting ACT and seeking punitive damages per 15 USC 1681 n(a)(2), 15 USC 1681o, 15 USC 1692e(8).

· Violation of Statute of Limitation. If you or any of the defendants disputes the plaintiff’s right to rescind, they should have filed a declaratory judgment action within twenty days after receiving the rescission notice, before the deadline of October 10, 2006 to return the plaintiff’s money or property and record the termination of its security interest according to 15 USC 1635(b).

· On November 15, 2006, you and all the other defendants were on notice that they were in default for TILA violations (see docket # 80, Case #: 06-10368).

· Violation of the statute of limitations and fraudulent assignment of the mortgage. Without a security interest in the plaintiff’s property, New Century Mortgage, Chase Home Finance, Deuthsche Bank National Trust and any other parties do not have the authority to foreclose or to assign neither the mortgage nor the note.

· Violation of the Federal Rule of Civil Procedure 17(a), (East Coast Properties v. Galang, 308 A.D.2d 431, 765 N.Y.S.2d 46 (N.Y. App. Div. 2003). Neither you nor any of the defendants are Real Party in Interest or Holder in Due Course, since the TILA notice of rescission automatically voids the security interest.

· Violation of the rule of law, since neither you nor any of the defendants have Standing to pursue foreclosure action because, once TILA notice of rescission is given, the lien or security interest in plaintiff’s property becomes void ab initio, even if a court has not yet ruled on the validity of the plaintiff’s rescission (Willis v. Friedman, Clearinghouse No. 54,564 (Md. Ct. Spec. App. May 2, 2002)).

In summary, Mr. Augustin states that the mortgage is not valid and in violation of TILA (failure to respond to TILA rescission notice by October 10, 2006) by not complying with required procedures. Without an interest in the debt, you do not have the authority to foreclose since you do not have an enforceable security in the property because the mortgage and note assignment were improper and ineffective.

If you are not the current holder of the note and mortgage relating to Mr. Pierre R. Augustin’s mortgage account, please provide the name and address of said true owner of the obligation (15 USC, 1641(f)(2)) or holder and indicate your relationship to this entity. Therefore, absent of transferring debt precludes action for foreclosures because the assignment of the mortgage alone is a nullity, the note cannot be enforced and in violation of U.C.C. requirement.

This is a Fraudulent maneuver. Mr. Augustin loan account should be zero due to TILA rescission notice. Thus, the Loan account is in error. In invoking the protection of the service act, Mr. Pierre R. Augustin is challenging this notice of foreclosure since the foreclosure proceeding is erroneous (12 USC 2602(1)(a).

Do take the necessary action to correct this error in responding to this qualified written request by complying with 12 USC 2605(d), 12 USC 2605(e) and 12 USC 2505(f). Thank you for taking the time to acknowledge and answer this request as required by the Real Estate Settlement Procedures Act (sec. 2605(e)).

Sincerely,
Pierre R. Augustin, MPA, MBA
617-202-8069