Oppostiton To Ameriquest

http://rcxloan.com/Opposition_to_Ameriquest_Motion_to_Strike.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.


United States District Court - District of Massachusetts

Pierre Richard Augustin, PRO SE )
Plaintiff, )
)
v. ) C.A. No. 06-10368 (NMG)
)
DANVERSBANK, ET AL., )
Defendants. )

Plaintiff's Written Opposition To Defendants’ (Ameriquest)
Motion to Strike his Motion to Clarification to the Court

Plaintiff, 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 Plaintiff, “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).

On December 19, 2007, Defendant, Ameriquest filed its Motion in Opposition and to Strike Plaintiff’s Motion of Clarification. According to the Court entry below, the letter of clarification by Plaintiff was not considered as a Motion as Ameriquest claimed in the 3rd paragraph, (see line 2-3-4 in parentheses) of its filed motion:

11/27/2007 135 Letter of Clarification (non-motion) from Pierre Augustin. (Sonnenberg, Elizabeth) (Entered: 11/27/2007) -- (source: Court Docket)

Thus, the letter was listed as a non-motion. For that matter, Plaintiff submitted a Motion of Clarification to explain the reasons why he is requesting a transfer from this Court.

I. Pleading
In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. In general, Federal Rule of Civil Procedure 7(a) permits only two pleadings: (1) the pleading asserting the claim and (2) the pleading in response. No other pleadings are allowed, unless the court orders a reply to an answer or third-party answer. Also, no other paper will be considered a pleading except those specifically named in Rule 7(a).

II. Motion
Whereas, a legal motion is a procedural device in law to bring a limited but contested matter before a court for decision. A motion in any form cannot stand as a pleading. The submissions to which Defendants’ motion to strike under Rule 12(f) is directed at Plaintiff’s Motion for clarification. As such, Plaintiff’s Motion of Clarification is not subject to Rule 12(f).

III. F.R.C.P 12(f)…
A motion to strike (F.R.C.P, 12(f)) is defined as a request for a judge's order to eliminate all or a portion of the legal pleading (complaint, answer) of the opposition on any one of several grounds.

A motion to strike is applicable when a complaint or other pleadings contains “redundant, immaterial, impertinent or scandalous” materials or legally insufficient defenses, a party may move to strike those [p]ortions of the [p]leading under Rule 12(f).

The current opposition motion to strike by Ameriquest do not meet the first facial requirements of this Rule by failing to point out any ‘immaterial, impertinent or scandalous materials or legally insufficient defenses’ as well as not being a pleading, but simply a Motion filed by Plaintiff.

IV. Plaintiff’s Motion for Entry of Default does not Violate Rule 12(f)
Under the guise of a Motion to Strike which deals with pleading or Rule 7(a), the Lawyers of Ameriquest are presenting, in bad faith, to this court an ‘improper purpose’ that has no reasonable basis in both fact and law. At best, this motion to strike can be strictly classified an improper purpose to cause delay, harassment or other improper objective that Plaintiff cannot decipher.

The paramount reasons for Ameriquest making the above assertions are based on Counsels’ groundless legal contention since they are simply attempting to deflect attention away by invoking Local Rule 7.1(a)(2) and 7.1(B)(3) that most of the defendants‘ Attorneys have not followed and the Court have said nothing when Plaintiff have raised similar objections in the past in his opposition to Defendants’ motion to dismiss.

Plaintiff is demanding equal treatment in regard to Rule 7.1(a)(2) and 7.1(B)(3) since the court’s past ruling on those objections have been totally silent. Thus, the rules should apply for all, not just a disregard local rule that has never been enforced in the past by the Court in this case that is [now being resurrected from the abyss to technically silence Plaintiff‘s legal right] to file a motion asking the court for a decision.

Unfortunately, whether or not the attorneys for Ameriquest like it, the facts are the facts and nothing in the Plaintiff’s Motion of Clarification warrants being struck. Ameriquest’s Legal Counsel are flagrantly telling this court that Plaintiff filed Motion without express leave of court is a paradox because Plaintiff, to the best of his ability and knowledge, has respected, abided and followed very closely the Federal Rules of Civil Procedures and has no other means to request a decision from this court via a Motion since his letter was listed as a non-motion. Plaintiff, being a law abiding citizen, would like to point out that even prisoners’ right of access to courts may not be denied or obstructed (Johnson v. Avery, 393 U.S. 483, 485 (1969)).

Moreover, such motions to strike are not favored in the law, North Penn Transfer, Inc. v. Victaulic Co. of America, 859 F. Supp. 154 (W.D. Pa. 1994); Resolution Trust Corp. v. Scaletty, 8 10 F. Supp. 1505 (E. D. Kan. 1992), and they should be denied unless the allegations can have no possible relation to the controversy (Augustus v. Board of Public Instruction 306 F.2d 862 (5th Cir. 1962); Lipsky v. Commonwealth United Corp., 551 F.2d 887 (2d Cir. 1976) (motion to strike matter allegedly immaterial will be denied unless it can be shown that no evidence in support of the allegations would be admissible)).

V. Federal Rules of Civil Procedure - Rule 15(a)
The Defendants’ motion to strike are based upon the Federal Rules of Civil Procedure 12(f) and 15(a); however, even a surface perusal of these rules demonstrates that they have no applicability whatsoever to the instant situation. For the record, Plaintiff submitted a Motion of Clarification to the Court, not an amended or supplemental pleading per Rule 15(a).

If this was an amended or supplemental pleading per Rule 15(a), it would be analogous as in In Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (citing Moore’s), whereby the Supreme Court interpreted Rule 15(a) and held that in the absence of some identifiable justification for denying leave to amend—such as undue delay, bad faith or dilatory motive by the movant—leave to amend should be granted, and that a court abuses its discretion in denying leave to amend in the absence of such reasons. (James v. Hurson Assocs, Inc. v. Glickman, 229 F.3d 277, 282-283 (D.C. Cir. 2000) (district court erred in rejecting plaintiff’s amended complaint because defendant had filed only motion to dismiss and not answer, so that plaintiff was entitled to amend its complaint)).

VI. Plaintiff’s and Defendants alike have a Fundamental Right To Request A Just Order from this Court
The request made within the Defendants’ motion to strike is not warranted by existing law and can be further categorized as a frivolous argument for the delay, extension, modification or reversal of Plaintiff’s fundamental right of asking the judge to issue a ruling or order on a legal matter under rule 7(b)(1), (a motion is an “application to the court for an order”).

While a judge may require parties to confer before filing a motion, the failure to confer does not justify preventing the parties from filing a motion (See Richardson Greenshields Secs., Inc. v. Mui-Hin Lau, 825 F.2d 647, 652 (2d Cir. 1987)(absent demonstrated history of frivolous and vexation litigation or other extenuating circumstances, court has no power to prevent party from filing motions authorized by federal rules)).

Finally, the lawyers from Ameriquest stated on page 2, 2nd paragraph that it “became aware of the instant Motion upon receipt of the electronic notice from the Court that the Court has docketed the Motion on December 17, 2007”. The Motion of Clarification was mailed to the District Court via certified mail on November 28, 2007 and it was signed by a certain “Russo” on November 30, 2007 and never found and docketed by the Court.
Here is the official report of the United States Postal Service:

Label/Receipt Number: 7006 0100 0005 9760 2177, Status: Delivered

Your item was delivered at 11:33 AM on November 30, 2007 in BOSTON, MA 02210.

Thus, according to the records of the United States Postal Service, that Motion of Clarification was delivered on November 30, 2007, but it was never found. Plaintiff had to resend another copy to the Clerk with the above certification that it was delivered and subsequently put on the docket by the Clerk.

VIII. Conclusion
The standard for striking under Rule 12(f) is strict (In Re Catanella and E.F. Hutton & Co., Inc, Securities Litigation, 583 F. Supp. 1388, 1400 (E.D.Pa. 1984). More specifically, “only allegations that are so unrelated to Plaintiff’s claims as to be unworthy of any consideration as a defense should be stricken”. Immateriality under this rule has been defined as ‘any matter having no value in developing the issues of a case”.

As explicated above, Rule 12(f) does not authorize this Court to strike Plaintiff’s Motion of Clarification. Indeed, the applicable legal authorities indicate that motions to strike should not be granted in this instance since Plaintiff’s Motion of Clarification have ‘relevant evidences and in relation with his request to transfer his case’.

Wherefore, Plaintiff respectfully asks this Court that Ameriquest’ Motion in Opposition and to Strike be denied in all things and Plaintiff’s Motion for Clarification be granted based on the Motion itself and the evidence submitted.

Respectfully Submitted,
Pierre R. Augustin, Pro Se
Plaintiff
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617)202-8069

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document is filed at US District Court, District of Massachusetts, on December 28, 2007 and served by United States Postal Mail, postage upon counsel for the defendant.

X ____________________________________
Pierre R. Augustin, Pro Se, Plaintiff
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 District Court - District of Massachusetts

Pierre Richard Augustin, PRO SE )
Plaintiff, ) C.A. No. 06-10368 (NMG)
)
v. ) Plaintiff’s Affidavit/Affirmation
)
DANVERSBANK, ET AL., )
Defendants. )

I, Pierre R. Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:

1) I am the plaintiff in this action, and I respectfully submit this affidavit/affirmation in opposition to motion to strike.

2) The Motion should be granted because of the facts outlined in the written response by Motion.

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 granted.

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, Plaintiff, Tel: 617-202-8069
3941 Persimmon Drive, #102, Fairfax, VA 22031

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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