UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND (GREENBELT DIVISION) Arnold, et. al, Plaintiffs, vs. CitiMortgage Inc., et. al., Defendants, ) ) ) ) ) ) ) ) ) ) ) ) Case No: RWT 07-2617 MOTION FRCP § 60(b) (2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE §§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§ §§§§§§§§§§§§ FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE I. RELEVANT CASES 1) Case No. 04-0-05-000046 FC, CitiMortgage Inc. et. al., vs. Arnold and Cotten, 01/14/2005, Calvert County Circuit Court; 2) Case No. 55-06253-(bk), Docket No. 130, 06/19/2006, in Bk. Case No. 05-13246 TJC, CitiMortgage Inc. is Plaintiff Creditor, vs. Arnold and Cotten, Defendants, 2nd Illegal Complaint to Foreclose & Lift Stay Action filed by CitiMortgage;
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UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
I. RELEVANT CASES
1) Case No. 04-0-05-000046 FC, CitiMortgage Inc. et. al., vs. Arnold and Cotten, 01/14/2005, Calvert County Circuit Court;
2) Case No. 55-06253-(bk), Docket No. 130, 06/19/2006, in Bk. Case No. 05-13246 TJC, CitiMortgage Inc. is Plaintiff Creditor, vs. Arnold and Cotten, Defendants, 2nd Illegal Complaint to Foreclose & Lift Stay Action filed by CitiMortgage;
3) Case No. 06-2056-(bk), 12/14/2006, Counter Defendant, Cotten in reply to Case No. 55-06253, Docket No. 130, 06/19/2006, Bk. Case No. 05-13246 TJC;
4) United States Federal District Court, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart this Motion for Relief, FRCP § 60(b);
All Fraudulently removed cases relate-back to 1st. Civil Case No. 04-0-05-000046 FC, 01/14/2005, and Bk. Adversary Case No. 55-06253-(bk), Docket No. 130, 06/19/2006, and Counter-Complaint, Bk. 06-2056, 12/14/2006, Cotten and Arnold, “Original Defendants”, Bk. Case No. 05-13246 TJC.
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
IX. COURTS OF COMPETENT JURISDICTION…………………………………….
X. COURTS WANTING OF SUBJECT MATTER JURISDICTION………………..
XI. U.S. DISTRICT COURTS APPLIED LAWS UNEQUALLY AS TO AUTOMATIC STAY AND THE EFFECTS ON THE DEBTOR AND PROPERTY OF THE ESTATE AND THE RETURN TO STATUS QUO UPON DISCHARGE, DISMISSAL OR CASE
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
CLOSURE………………………………
XII. TILA ABUSE OF DISCRETION OBJECTIONS AS TO UNEVENAPPLICATION OF
LAWS…………………………………………………………
XIII. LEGAL FACTS………………………………………………………………………..
XIV. COURTS ABILITY TO REVIEW DE NOVA THE LAWS FOR ABUSE OF DISCRETION………………………………………………………………………
II. CASE INDEX:NO. 2
XV. STANDARD OF REVIEW FOR MOTION TO SET ASIDE “VOID ORDERS” ON MOTION PURSUANT TO FRCP 60(b)(2)(4)…………………………………..
XVI. JURISDICTION ARGUMENTS……………………………………………………..
XVII. ARGUMENTS AND MEMORANDUM OF LAW………………………………….
XVIII.LEGAL ACTIONS BY CASES & PARTY POSITION CHRONOLOGICAL LITIGATION HISTORY……………………………………………………………
XIX. VERIFICATION………………………………………………………………………
XX. CERTIFICATE OF SERVICE……………………………………………………….
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
III. CASES CITED, No. 1
1. Adams v. Administer Defense Servs., Inc., 901 F. Supp. 78, 79 (D. Conn. 1995)……..
2. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 951)…
3. Arizonans for Official English v. Arizona, ... 520 U.S. 43, 117 S.Ct. 1055, 1071, 137 L.Ed.2d 170 ... (1997)....Id., 118 S.Ct. at 1012-13……………………………………..
4. Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, (4th Cir. 1998)…...
6. Benson v. State, 389 Md. 615, 653 (2005); Wormwood v. Batching Systems, Inc., 124 Md. App. 695, 700 (1999)
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
………………………………………………………... 7. Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 280 (5th Cir. 1987)……...
8. Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1029 (6th Cir.1968)……………...
California v. LaRue, 409 U.S. 109, 112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972)
……………………………………………………………………………….
9. Capron v. Van Noorden, 2 Cranch 126…………………………………………………
10. Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998)…………………………………
11. Celotex Corporation v. Edwards, 514 U.S. 300, 313, 115 S. Ct. 1493, 1501, 131 L. Ed.2d 403 (1995)
…………………………………………………………………….
12. Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir. 1999)...………………………………………………………………….
13. Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88…………………
14. Christian v. College Boulevard Nat. Bank, 795 F.Supp. 370, 371 (D. Kan. 1992)……..
15. Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 21, 116 S. Ct. 286, 290, 133 L.Ed.2d 258 (1995)
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
18. Conway v. Delgado, C.A. No. 92-0905(JHG), 1992 WL 189428, at *2 (D.D.C. July 21, 1992)……………………………………………………………………………….
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
29. Guas v. Miles Inc., 980 F.2d 564, 566 (9th Cir. 1992)………………………………….
30. Healy v. Ratta, 292 U.S. 263, 270 , 54 S.Ct. 700, 703 supra part II…………………… 31. Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (11th Cir. 1994)…………
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
52. Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1049 (11th Cir. 2001)..
53. Scott v. Communications Services, Inc., 762 F.Supp. 147, 150 (S.D. Texas 1991)…...
54. Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992)………………………….
55. Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam)…………………………
56. Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972………………...
57. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)……………………………………………………………………………….
58. Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir. 1992)………..
59. Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed.
1214……………………………………………………………………………………
60. Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938)…………………………..
61. Scott v. Communications Services, Inc., 762 F.Supp. 147, 150 (S.D. Texas 1991)…..
62. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)………………………………………………………………………………
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
71. Wall. 139 West v. Aurora City 73 U.S. 139, 18 L.Ed. 819, 6…………………………..
72. United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990)……………………..
73. United States v. Augenblick, 393 U.S. 348………………………………………….
74. Victory Carriers, Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d 83 (1971)………………………………………………………………………………..
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
75. Victory Carriers, 404 U.S. at 212, 92 S.Ct. at 425…………………………………..
76. Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir.1985)…………………………………..
82. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir.1990)………………………
83. Zoren v. Genesis Energy, L.P., 195 F. Supp. 2d 598, 602 (D. Del. 2002)………….
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
IV. FEDERAL AND STATE LAWS
FEDERAL LAWS
28 U.S.C. § 455.(a)(b)(1) 28 U.S.C. § 144404 U.S. § 202, 212,28 U.S.C. FRCP § 60(b)(2)(4)28 U.S.C. §1331,§ 1332, §1441(a), §1441 (b), §1446 (b),§1447(c)United States Constitutional III Amendments § 1, 5 and 149 U.S.C. § 12
Maryland Constitution, Amendments 1, 5 and 14;Maryland Rule § 7-105, Real Property.
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
V. PRELIMINARY STATEMENTS
NOW COMES, “Original Defendants, Kathleen Arnold and Timothy A.
Cotten”, in the above captioned case, and, arising from the initial action filed in Calvert
County Circuit Court, Civil Case No. 04-0-05-000046 FC, declare they are, “Original
Defendants” for removal and other legal purposes in the above captioned case, this case,
and at all times hereto, CitiMortgage Inc. et. al., “(CMI)” are, the “Original
Plaintiffs/Counter-Defendants of both Civil Case No. 04-0-05-000046 FC and
Bankruptcy Adversary Complaint to Lift Stay to Foreclose, Case No. 55-06253, Docket
No. 130, 06/19/2006 of Bk. Case No. 05-13246 TJC, and, Counter-Defense Complaint,
filed by Arnold and Cotten, “Original Defendants” to reply Adversary Case No. 06-2056,
12/14/2006 Counter-Complaint, in Bk. Case No. 05-13246 TJC, see Attached Exhibits,
Docket Sheets in Evidence, ( all attached exhibits are incorporated into this motion by
reference hereafter).
1. “Original Defendants, Arnold and Cotten”, further present reversible error and
abuse of discretion of the courts in dismissal of non-diverse defendant who was properly
served with summons, defendant “Congressional Funding Inc.”, or, “CFI”. The courts in
error during the January 26, 2010, did so on rushed assertions, wherein it was purported
the courts possessed a wanting of subject matter jurisdiction over CFI who purportedly
was in bankruptcy as of January 26, 2010. Those relied on assertions incorrect and were
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
incorrect the day of the hearing and caused improper dismissal of Arnold and Cottens
claims against defendants “CFI”. The courts improperly dismissed the causes against
CFI as opposed to rendering due summary judgment for defendants default in answering
the complaint, also an abuse of discretion. The court failed to confirm these facts without
first exercising what would have been considered the usual judicial care, failing to at a
minimum, confirm by PACER CFM Courts system, those ill proffered statements.
Instead the courts dismissed CFI without further proof of the bankruptcy. In contrast,
CFI was never in bankruptcy at all but was merely a party to an action in the bankruptcy
courts, therefore the claims against CFI were improperly dismissed, see Attached
Exhibits, (Pacer Bk. CFM Search of CFI), and is as said, a reversible mistake and error
by the courts, justly due to be corrected by this timely motion FRCP § 60(b)(2) and (4)
as it applies to VOIDS.
2. This Motion to Set Aside for “Void”, FRCP § 60(b)4 - arises out of the
fraudulently removed cases by “(CMI)” and the courts refusal to remand those cases nor
hold a hearing and render ruling as to the courts challenged jurisdiction that which may
be reviewed because Section 1447(d) does not bar review where the remand was based
on a party’s contractual waiver of removal rights. In addition, appellate review is not
barred on the issue of attorney fees awarded under § 1447(c)., such fees were wrongfully
awarded in this case. See Waters v. Browning Ferris Indus., 252 F.3d 796, 797 (5th Cir.
2001); In re Delta Am. Re Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990). AND, See e.g.,
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Roxbury Condo. Ass’n v. Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003);
Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir. 1992).
3 “(CMI)” initiated all fraudulent removals knowing very well they were never
qualifying defendants entitled to avail themselves to removal pursuant to 28 U.S.C. §
1441(a)(e).
4. By fact, the initial foreclosure Complaint giving rise to this action, raised no issue
of federal law and was filed by original plaintiffs “(CMI)”in the state Circuit Courts.
5. Established, followed law dictates removal extends only to defendants and not to
plaintiffs and that a federal counterclaims does not qualify as an action “arising under”
and does not extend to those claims, see Shamrock Oil, 313 U.S. at 106; Holmes Group,
Inc. v. Vornado Air Circulation Systems, Inc., 535 U. A party seeking removal bears the
burden of proving their right to removal, “(CMI)” here, failed to carry their burden
forward to the courts, see also in, Steel Valley Auth. v. Union Switch & Signal Div. Am.
F. Supp. 2d 598, 602 (D. Del. 2002), “(CMI)” could never carry their burden to the
courts because they were not and are still not “True Defendants” who could never
remove.
6. Pursuant to the “Well Plead Complaint”, the rule does not permit a counterclaim
to serve as the basis for the "arising under" federal jurisdiction §1331, exactly as
“(CMI)”, based their fraudulent rights to remove upon as well as relying further on a
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
purported “Diversity of Jurisdiction” which candidly, at the time of the removal, never
and still does not exist, see In Holmes, the Supreme Court reiterated the primary reasons
supporting the well settled rules on removal based upon federal claims contained in
counterclaims and found accordingly:
“Allowing a counterclaim to establish "arising under" jurisdiction would also
contravene the long standing precedents. The courts abused their discretion in
applying the “arising under”, (though “(CMI)”, was barred from removal). The
Courts reasonably found that to allow counter defendants such leave for
acceptance or rejection of a state forum, would in fact make the counter
defendants and would confer a power upon the defendant that would radically
expand the "due regard for the rightful independence of state governments"
Corp. v. Sheets, 313 U.S. 100, 109, 85 L.Ed. 1214, 61 S.Ct. 868 (1941)”.
7. “The appropriate course [for a federal court] is to examine for subject matter
jurisdiction constantly and, if, it is found lacking, to remand to state court if appropriate,
or otherwise dismiss." Because the right of removal is vested exclusively in true
defendants, a plaintiff who has chosen to commence the action in state court cannot
later remove to federal court, even to defend against the counterclaim, the case here
and now brought correctly on this rule FCRP 60(b)4 Motion. See 14C Wright, Miller
and Cooper, Federal Practice and Procedure: Jurisdiction 3d §3731 (1998). The “well-
established rule is that the plaintiff, who chooses the forum, is bound by that choice
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and may not remove the case.” Scott v. Communications Services, Inc., 762 F.Supp.
147, 150 (S.D. Texas 1991).
8. By law and fact, “(CMI)” could never avail themselves to removal relief from a
counterclaim regardless even if pleading a Federal Matter Question raised as a
counterclaim.”, (the case here in Arnold and Cottens case matters). Metro Ford Truck
Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998). The courts abused
their discretion in overlooking the fact A Plaintiff is the “Master of the Claim”, The “well
pleaded”. This removal was ‘improvident as is the case here in this instant matter and
without jurisdiction, see Adams v. Administer Defense Servs., Inc., 901 F. Supp. 78, 79
(D. Conn. 1995) wherein they held ("It is axiomatic that in the usual case, removal can be
achieved only by a defendant, who is by implication a party to the state-court action.")
and, Conway v. Delgado, C.A. No. 92-0905(JHG), 1992 WL 189428, at *2 (D.D.C. July
21, 1992) (concluding that the parties seeking removal from state court did not have
standing to remove a case in which they were not defendants), like Arnold and Cotten,
“(CMI)” did not have the right to remove.
9. “(CMI)” when deciding to foreclose fraudulently against Arnold and Cottens
home were at all times “the masters of their claims” and were bound to the courts they
had selected, those being, the Circuit Courts of Calvert County. Federal courts have
limited jurisdiction and may only exercise that power prescribed to them by the
Constitution or the United States Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co.
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
of America., 511 U.S. 375, 377 (1994). “A Defendant may remove a case which has
originally been filed in state court to a federal district court pursuant to 28 U.S.C. §
1441(a)”, in the alternative, if,…..the district court has original jurisdiction over the
matter“(CMI)” is not a defendant and never was a defendant but is the “True, Original
Plaintiff” and was never vested with removal rights as narrowly granted by law.
10. All actions arouse out of “(CMI)” fraudulent foreclosure actions against Arnold
and Cottens property. “(CMI)” knew by fact and law they were prohibited and barred
from removal because they first, waived their rights in failing to remove then, (though
they were barred), the first affirmative action case, (5th Case No. 04C07000353,
03/20/2007, Calvert County Circuit Courts). “(CMI)” were never “True and Original
Defendants” in the 2 Initial Foreclosure Cases” and are not a party who may avail
themselves to removal options, no matter when nor how or if Arnold and Cottens
counter-claims are ones raising Federal Question.
11. The courts abused their discretion upon failing to conclude these facts based on
pleadings, inferences and other reasonable investigations into“(CMI)”purported removal
rights. Had the courts not abused their discretion in failing to burden “(CMI)”, the
removing party, to carry their burden onto the courts at the outset of the case and the
behest of Arnold and Cottens objections, the courts would have, and should have,
properly concluded the case was not one that could be removed.
12. Repeatedly Arnold and Cotten stated these case facts, clearly relating them back to
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
their Initial Counter-Claims Defensive Claims.
13. “(CMI)”, deceptively omitted the “Related Cases” from their Case Removal Intake
Forms, doing so with the expressed intent of misleading the courts as these omissions
clearly did mislead the, causing unreasonable reliance on these deceptive forms by the
courts and is an unmistakable knowing fraud onto the courts by “(CMI)” and their legal
agents.
14. In fact, these omissions made by “(CMI)” damaged Arnold and Cotten and grossly
prejudiced them to the courts; notably the Courts Admonished and flogged Arnold and
Cotten in one of their “Orders” “indicating the parties had closed on a loan and then
Arnold and Cotten filed a “plethora of lawsuits”. By fact this was a false and prejudicial
assumption drawn directly by the courts from the “(CMI)” removal case intake forms.
The courts admonishments were that Arnold and Cotten, out of the blue sky, just
randomly and devoid of cause sued “(CMI)”. Had the Intake forms been filled out
correctly by “(CMI)”, the courts may not have been prejudiced but instead would have
realized Arnold and Cotten were defendants and may have valid claims due redress by
way of counter-claims for the injuries sustained by “(CMI)” and, as provided by law,
therefore the courts abused their discretion in drawing these unfounded conclusions
wrongfully and in error.
15. Had the courts known of those two initial foreclosure cases in which“(CMI)” was
at all times, the true and Original Plaintiffs, the fraudulently removed cases would have
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
been remanded and sanctions should have been rightfully imposed by the courts for such
deliberate deception and fraud onto the courts.
16. To the detriment of Arnold and Cotten, and for the benefit of “(CMI)”, “(CMI)”,
deceptively omitted from all removal forms their two fraudulent foreclosure actions that
started “the purported plethora of lawsuits”, not Arnold and Cotten as the courts
wrongfully found. “(CMI)” left these “related cases” off of the removal forms
intentionally and with the intent to deceive the courts as they so did, because in providing
the required information, “(CMI)” could not justify any right to remove and in answering
the removal case intake forms factually and honestly, these facts would have been known
from the outset and removal would have and should have been denied. The Court must
sua sponte review all removed actions to confirm that federal jurisdiction is proper. 28
U.S.C. § 1446(c)(4) (stating that the “district court in which such a notice [of removal] is
filed shall examine the notice promptly”); Snell v. Cleveland, Inc., 316 F.3d 822, 824,
826 (9th Cir. 2002) (explaining that a “court may raise the question of subject matter
jurisdiction, sua sponte, at any time”); Galvez v. Kuhn, 933 F.3d 773, 775 n.4 (9th Cir.
1991) (defects in jurisdiction can be raised sua sponte, whether the parties raise the issue
or not). Under 28 U.S.C. § 1441(a), an action must be “fit for federal adjudication when
the case is removed, in contrast to the court's ability to remand sua sponte for procedural
defects upon removal. See Kelton Arms Condominium Owners Ass'n, Inc. v. Homestead
Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (holding that district courts have no
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
authority to remand a case sua sponte for procedural defects), notable however the court
took no action and the wrong action refusing all motions to remand and refusing to
substantiate their subject matter jurisdiction challenges made by Arnold and Cotten, thus
amounting to further, an abuse of the courts discretion and is also a denial of due process
alike.
17. Arnold and Cotten contend the “Original Related Cases”, had they been,
accurately, honestly and candidly disclosed by being listed on the Removal Case Intake
Forms, or, had the District Courts conducted any… reasonable due diligence as mandated
in executing their standing orders of removal, by way of possibly searching a general
civil litigant parties search in the courts public records inquiry, such searches justly
would have contradicted the frauds being perpetrated onto the courts by “(CMI)”, as
stated and evidenced on the removal forms as clearly had any search been performed, it
would have revealed the incomplete Removal Intake Forms and the extent of the
omissions.
18. “(CMI)”, is not all to blame however for the abusive and overreaching of the
United States District Courts of Beltsville into legal matters in which they had no
jurisdiction authority to preside over. These courts who possessed a binding duty to
examine and verify removal case information to ensure that it was legally and accurately
petitioned with those courts and the courts having a greater due diligence duty in the
removal of cases with that diligence extending well beyond the superficial
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
misrepresentations stated by “(CMI)” on the Removal Case Intake Forms provided by the
removing party, “(CMI)”, in their fraudulent attempts to illegally retain the federal courts
jurisdiction. It is established law, the burden of proof lies with the party seeking removal
and that party is charged with the burden of proving the grounds necessary to support
removal, including compliance with procedural requirements, clearly lacking here in this
case now on motion, See Christian v. College Boulevard Nat. Bank, 795 F.Supp. 370,
371 (D. Kan. 1992); Dawson v. Orkin Exterminating Co., Inc., 736 F.Supp. 1049, 1050
19. The courts abused their discretion in refusing to force “(CMI)” to carry their
burden forward onto the courts. Arnold and Cotten noticed the courts repeatedly they
lacked jurisdiction and that there was no diversity of citizens at the time of removal
because CFI and Martin Dennis both resided in the forum state of Arnold and Cotten,
Maryland. Not even the courts erroneous dismissal of defendant CFI, based on an
erroneously purported bankruptcy filings by CFI, still could never grant onto the courts
complete diversity of jurisdiction, (immaterial here however because “(CMI)” are
plaintiffs, and could never remove the TILA counter claims of Arnold and Cotten).
20. Defendants CFI was never in Bankruptcy and in fact, was properly served with the
complaint. CFI failed to appear nor answer the complaint with a default judgment due to
be granted not an order of dismissal.
21. A PACER Court System CFM, public bankruptcy case search shows CFI was
22
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
never in Bankruptcy as of the hearing on January 26, 2010, and the erroneous entry of the
courts Order dismissing the case. Arnold and Cotten could not address this surprise
revelation during the hearing but did expect that at a minimum, due diligence would
prevail and the courts would have at least performed a PACER Courts System case
search, doing so during the hearing as oppose to merely accepting false and
unsubstantiated proffered information, information patently wrong, presented with the
sole intent, just as it did, to mislead the courts and trick an entry of dismissal.
22. The courts err in dismissing the case against CFI in what could appear to be an
attempt to wrongfully extend jurisdiction to the courts, (noting this very notion is flawed
if it were legally factual but, by fact, wrongfully dismissing CFI, still never entitled
“(CMI)” to fraudulently remove any of the cases because they are the true, original
plaintiffs who have been subjected to counter claims and are otherwise not defendants
and are barred from removal.
23. Had the federal courts functioned as statutorily mandated in removal matters,
being courts of limited jurisdiction, they would have demanded the case Removal Intake
Forms be completely and correctly filled out and that “(CMI)” be forced to carry their
burden of right to remove onto the courts, with the courts abusing their discretion in
failing to enforce these statutory mandates and the Removal Statutes be Strictly Applied.
Because there is a presumption against removal jurisdiction, the court must strictly
construe the federal removal statute and resolve all doubt in favor of remand. Fajen v.
23
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The courts abused
their discretion in failing and refusing to remand as doubt was correctly raised with
legitimate and timely challenges to the courts standing and “(CMI)” being barred from
removing their counterclaims.
24. The District courts abused their discretion in refusing to ensure accuracy in the
removal forms, as mere superficial recitals of statutes and conclusions are not sufficient
reasons do confer nor act to establish legal authority and rights to removal that grant the
Federal Courts Subject Matter Jurisdiction, what was lacking at the entry of the courts
orders in these grave matters and is still lacking and that must be corrected by this motion
to “Void and Set Aside”.
25. All Case Removal Intake Forms failed to join all parties to the removing
complaint as mandated and, the courts refused to accept these challenges in error when
they overlooked all of Arnold and Cottens timely, technical and subject matter
jurisdictions challenges to removal; the lacking of complete diversity of citizens of the
removing parties also, see Attached Exhibits, Case Dockets, Arnold and Cottens timely
removal objections to technical removal fatalities with the removals being fraudulent as
correctly and rightfully alleged. See Russell Corp. v. Am. Home Assurance Co., 264
F.3d 1040, 1049, (11th Cir. 2001) and Guas v. Miles Inc., 980 F.2d 564, 566 (9th Cir.
1992). The court refused to remand and refused to defend subject matter jurisdiction
therefore review is permitted.
24
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
26. The courts violated Arnold and Cottens “Due Process Rights”, a right to be heard
and to receive redress of their claims in a forum which the law provides, that being their
State Courts; plaintiffs “(CMI)” are barred from removal to federal courts and were the
masters of their complaints. “(CMI)”sued in the Circuit Courts of Calvert County and
were not allowed to remove their counter complaints to the federal courts regardless of
their being named as defendants. The courts abused their discretion in not drawing
reasonable inferences from these facts that were contained in Arnold and Cottens
pleadings, motions and many and timely demands for remand.
27. Fact is, all of these things collectively should have put the U.S. Federal District
Courts of Beltsville on a more then reasonable Notice the removals were fraudulent and
defective and that this created doubts that were real and that the courts had a duty to
question, abusing their discretion in refusing to exercise such diligence and definitely
when failing to resolve the matters by remand with the presumption against removal
jurisdiction, the court must strictly construe the federal removal statute and resolve all
doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333
(10th Cir. 1982).
28. The courts had to conclude at some time and point “(CMI)” was not a defendant
who could avail themselves to removal relief therefore these federal District Courts at all
times lack subject matter jurisdiction pursuant to 28 U.S.C. § 1441.
29. Leaving out the above errors with the removal case intake form and the
25
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
illegitimacy of the fraudulent removals, once the court read the complaint, it would have
become apparent beyond doubt through inferences made in the well plead complaint, the
removing parties “(CMI)”, were not in fact “Defendants” vested with right to remove
because “(CMI)”, was at all times relevant thereto, and is, for removal purposes, the
“Original Plaintiffs”; these party facts, underscore the motivational causes and
considerations for “(CMI)” to fraudulently and knowingly by intention, omit their two
previous illegal foreclosure cases wherein they are the “Original Plaintiffs”, see Attached
Chronology of Cases.
30. Arnold and Cotten present correctly on this motion, in this motion to “Void and
Set Aside” the courts void orders for wanting at all times of subject matter jurisdiction
pursuant to 28 U.S.C. § 1441, plaintiffs may not remove and “(CMI)”, are the true
plaintiffs with no counter claim changing these facts whatsoever. Arnold and Cotten
seek a Demand for Orders of Remand from these Courts because at no time ever, did
these courts obtain or possess jurisdictional authority and lack subject matter jurisdiction
causing this courts orders to be “Void Orders” and are, “Voids” and “Nullities”, ab initio,
at inceptions; as such, Arnold and Cotten are seeking due and just relief from this Courts
Wrongful Orders and that they be declared “VOIDS”.
31. By law and fact, Arnold and Cotten should have been granted remand of their
cases fraudulently removed, 28 U.S.C. §1447(c). American Fire & Cas. Co. v. Finn,
341 U.S. 6, 71 S.Ct. 534 (1951). In addition, the court can, and should raise lack of
26
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
subject matter jurisdiction on its own motion, sua spontra. See Laughlin v. Kmart Corp.,
50 F.3d 871, 873 (10th Cir. 1995) (“If the parties fail to raise the question of the
existence of jurisdiction, the federal court has the duty to raise and resolve the matter.”).
Sua sponte remand for procedural defects is also permissible in Kansas. See Townsell v.
City of Kansas City, Kansas, Case No. 95-2339-KHV, 1996 WL 225194 (D.Kan. April
12, 1996). This motion to “Void and Set Aside is made Pursuant to FRCP § 60(b)4, for
the courts wanting of Subject Matter Jurisdiction, and at all times relevant thereto, Arnold
and Cotten are the “Original Defendants” as defined by law for Removal Purposes.
32. This Motion to Set Aside, Void and Remand, arises from all Fraudulently
removed Cases from the Circuit Courts of Calvert County by “Original Plaintiffs”
“(CMI)”. Arnold and Cotten, are the “Original Defendants”, see Attached Exhibits,
Calvert County Circuit Court, Civil Case No. 04-0-05-000046 FC, and, Bankruptcy
Complaint to Lift Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in
Bk. Case No. 05-13246 TJC and Counter-Defense Complaint, Case No. 06-2056,
12/14/2006 Counter-Complaint in Bk. Case by Arnold and Cotten, in Bk. Case No. 05-
13246 TJC.
33. Arnold and Cotten “framed-up” and initiated their counter-defenses against
“(CMI)”, therefore “(CMI)”, knew, at all times they were never a defendant party who
could remove the case to federal courts, regardless of counterclaims raising federal
questions, removal was clearly barred. “(CMI)”, desired to escape liability from Arnold
27
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and Cottens State Courts.
VI. COURTS JURISDICTION
34. Jurisdiction is as correct as can be for this motion in as much as this motion is
dealing with the intrusion of the Federal Courts into Arnold and Cottens matters without
jurisdiction to have done so.
35. This court entered its Order on January 26, 2010 and this Motion is being filed on
January 10, 2011, less then one year and as soon as practical, exhausting all other relief.
36. These Honorable District Courts had no authority to preside over the fraudulently
removed cases and abused their discretion in so doing therefore making of their orders as
“Void Orders” that are “Legal Nullities” for the Federal District Courts wanting of
“Subject Matter Jurisdiction” in all Removed Cases and hearing because Arnold and
Cotten are the “Original Defendants” therefore, beyond doubt, Plaintiffs “(CMI)”, lacked
authority to ever legitimately remove any case from the state courts even though they
were characterized as defendants in the counter claims filed by Arnold and Cotten.
“(CMI)”knew they were “not the sort of defendant permitted to avail themselves to
removal”. “(CMI)”, deceptively and fraudulently removed Arnold and Cottens cases,
time and time again from their state courts with the intention to, as it did, cause them
harm, undue delay, frustration and denial of redress and due process and in the forum of
their choosing, as provided by law.
28
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
37. 28 U.S.C. § 1331, to remove a case “arising under” federal law, 28 U.S.C. §
1446(b) provides that the case stated by the initial pleading must, in the first instance, be
removable: Foreclosure was the first case filed by “(CMI)” in the Circuit Courts of
Calvert County and would not have been removable ever by “(CMI)”.
38. Arnold and Cottens counterclaims could never form the basis for invoking
removal to federal court. See also Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d
815, 822 (9th Cir. 1985) (“The federal question defendants raise in their counterclaims
does not provide a basis for removal.”). Therefore, although in their counterclaim Arnold
and Cotten assert that Plaintiff “(CMI)” violated federal law, the counterclaims
fraudulently removed to federal courts, (all cases), cannot serve as the basis for invoking
federal jurisdiction, only “True Defendants are allowed to remove” thus defendants
cannot bring their counterclaims to federal court.
39. The serious problems with “Subject Matter Jurisdiction”, based on the pleadings,
the courts should have recognized their abuse of discretion at some time and immediately
remanded the cases to State court for failure of the complaint to constitute a suit that may
be removed under the 12th Section of the Judicial Act., see, 73 U.S. 139, 18 L.Ed. 819, 6
Wall. 139 West v. Aurora City., December Term, 1867, see See H. Rept. No. 1078, 49th
Cong., 1st Sess., p. 17. “If, in reenacting in substance the pertinent provisions of 12 of
the Judiciary Act, Congress intended to restrict the operation of those provisions or to
reject the construction which this Court had placed upon them, by saving the right of a
29
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
plaintiff, in any case or to any extent, to remove the cause upon the filing of a
counterclaim praying an affirmative judgment against him, we can hardly suppose that
it would have failed to use some appropriate language to express that intention.”
40. In Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85
L. Ed. 1214, the Supreme Court held that the filing by the defendant in a suit in a State
court of a counterclaim setting up an independent cause of action does not confer
upon the plaintiff the right of removal, this applies here and must be applied.
41. Appellant courts are to look to the supreme courts words, “Quoted further from
the Court's opinion in the Shamrock case at page 108 of 313 U.S., at page 872 of 61 S.
Ct., 85 L. Ed. 1214”: "Not only does the language of the Act of 1887 evidence the
Congressional purpose to restrict the jurisdiction of the federal courts on removal, but
the policy of the successive acts of Congress regulating the jurisdiction of federal
courts is one calling for the strict construction of such legislation. The power reserved
to the states under the Constitution to provide for the determination of controversies in
their courts, may be restricted only by the action of Congress in conformity to the
Judiciary Articles of the Constitution. 'Due regard for the rightful independence of
state governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the statute has defined ."
42. These Courts abused their discretion in presiding over and exercising jurisdiction
they could not gain legally in all illegally and fraudulently removed cases. The power
30
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
reserved to the states [313 U.S. 100, 109], under the Constitution to provide for the
determination of controversies in their courts, and may be restricted only by the action of
Congress in conformity to the Judiciary Articles of the Constitution. Arnold and Cottens
injuries arouse from “(CMI)”, 2 fraudulent foreclosure actions, therefore the case was not
one that the federal District Courts would have had initial jurisdiction over.
43. While this honorable courts orders are “Void” due to lack of subject matter
jurisdiction and cannot make a finding as to these matters, Arnold and Cotten maintain
also these courts misapplied the laws and TILA statutes even going against settled law of
this very court. Arnold and Cotten exercised their extended right to rescind the loan for
material disclosure violations affecting the amount financed, the interest rate, the total of
payments and the cost of the credit disclosures. The evidence is plead in the Complaint
and Evidence Submitted by both parties and is a part of the record, the courts need not
look any further. The record reveals there are unresolved controversies and technical
violations of the “Act” affecting Arnold and Cottens extended rights to rescission with
summary judgment issued in error and not supported by the case file facts and exhibits
entered thereto that clearly support rescission for material disclosure violations was
proper and timely issued.
44. Consumers have an ongoing right to rescind as an affirmative defense and may
seek redress far past the three-year statute of limitations by equitable remedy of
recoupment, a remedy that well exceeds the three-year statute of limitations under
31
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
“TILA”, a statute of repose.
45. The equitable provisions under TILA allow that rescission may be used as a bases
of counter defense and can be issued in counter-defense of a foreclosure action as Arnold
and Cottens rescission was so issued in counter-defense of “(CMI)”, in response to their
illegal foreclosure actions.
46. Notably Arnold and Cotten issued rescission within……the three year extended
right to rescind; there was no default of mortgage payments.
47. Importantly, 9 U.S.C. § 12, equitable tolling is to be applied unless a statute
expressly prohibits the tolling of a specific statute; no prohibition exist for a consumer to
exercise their extended rights to rescission for material loan disclosure violations as
detailed in the appellants 4th amended complaint, rescission being timely at all times
therefore Arnold and Cotten take issue with the uneven, misapplication of the law that of
which is contained in the case file and is free and independent of the case history that is
not needed to draw the same inferences and conclusions of law that will support these
assertions the District Courts misapplied the laws unequally.
48. Pursuant to TILA Violations 15 U.S.C. 1641, an enforcement action may ensue up
to one year from the date of default of the offending creditor thus making the latest time
appellants could have brought their affirmative counterclaims defense lawsuit being far
later then August 27, 2007.
49. The courts error in applying case relation back requirements and TILA criminal
32
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
liability statutes to an offending creditor for refusing to rescind the loan and application
of legal remedy requirements available to the offending creditor to seek out an injunctive
order within the same 20 days they are allowed to complete the acts of rescission.
50. Arnold and Cotten at all times relevant thereto the rescission, were willing, ready
and poised to tender, requesting time and again repeatedly payoff statements reflecting
the effects of the rescission, reiterating this was 2006 and mortgage loans were still
readily available to Arnold and Cotten, even though “(CMI)” had destroyed their credit
with fraudulent reporting and illegal collection of a debt not due and owed nor was ever
in default.
51. These Federal courts have abused their discretion when failing to apply the laws
equally and fairly in all matters before the District Courts.
52. The District Courts undermine all faith Arnold and Cotten would hold in the
federal courts based on their unconstitutional behavior in administering their fraudulently
removed cases and eschewing of the laws just in the removal matters alone yet, the
wrongful application of BK Stay on Legal Claims of the Estate and legal mutilation of
the strict technical requirements of the courts under TILA, the “Act”.
53. The courts have misapplied the laws in the fraudulent removals alone, Arnold and
Cotten have been oppressed and denied additionally their due process and access to
redress in the Courts of their forum, those being Maryland State Courts.
54. Arnold and Cotten were never met by bar to seek out redress for creditor
33
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
violations of “TILA” with no case and record evidencing any such legal facts. The courts
should have been well able to infer from the case record Arnold and Cotten were met
with any bar in brining their TILA Violation Cause case.
55. The courts further abused their discretion in their continuing to preside over non-
removable State Law Claims and when allowing parties not restrained by strict
mandatory statutes to remove cases to Federal Courts, the Plaintiffs “(CMI)”,
intentionally disrupted Arnold and Cottens state case and their litigation.
56. Because the “Order is Void” as a matter of law, Arnold and Cotten are being
detained further by these courts in that not only may Arnold and Cotten seek relief under
Rule 60(b)4, so can the violating defendants should ever they have such whim or need
and therefore such void “Orders” have create uncertainty and undermine the judiciary
system.
57. In the Courts allowing the fraudulently removed cases, the Federal Courts have
traveled well beyond their jurisdictional territory with all “Orders being Nullities” and
“Voids” ab initio.”, the District Court never had jurisdiction over the cases and could not
gain authority because “(CMI)”, was the sort of defendant barred from removal.
VII. GENERAL MATERIAL FACTS
58. The U.S. District Courts of Maryland, Beltsville, seems to have willfully engaged
in a method, either freely or for other Political and Judicial Agendas, that is contrary to
34
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
those orders to the Court Mandating Due Process, Equal Access and Equal Application of
the Peoples Laws.
59. These District Federal Courts have neglectfully mishandled all fraudulent
removals of Arnold and Cottens cases from their Circuit Courts of Calvert County by
litigants, “(CMI)”,, who failed at all times to meet removal defendant criteria established
by Supreme Courts Removal Dictum, “a Plaintiff is barred from removal relief”.
60. “(CMI)”, removal frauds rest on the Removal Forms, Court Case Intakes Forms
wherein, “(CMI)”, knowingly Omitted from the Case Removal Forms all “Related Case
Information”, those which include their two illegal foreclosure actions and Arnold and
Cottens Counter-Claims and Adversary Complaint, (Cotten and Arnold are the
defendants in these actions).
61. Arnold and Cotten contend “(CMI)”, sought dismissal of “(CMI)”, Case No. 04-0-
05-000046 FC, CitiMortgage Inc. et. al., vs. Arnold and Cotten, 01/14/2005 and
closed on 01/9/2007, the state court foreclosure claims expanding far and well over one
year after the case was filed therefore another reason as to fraudulent removal, No
Diversity of Parties, and Federal Question, purported to grant right to remove by “(CMI)”
yet not proven to sufficiently grant removal jurisdiction and, most importantly,
fraudulent removals under the guise of “arising under” federal question jurisdiction as
asserted by “(CMI)”, a plaintiffs counter claims brought by defendants are not
removable.
35
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
62. The District Courts after being put on notice there were more then legitimate
disputes and causes to Arnold and Cottens objections to the fraudulent removals of all
cases by “(CMI)”, and that the courts were on guard, that in their proceeding without
defending first their challenged jurisdiction, they not only exercised powers well beyond
their judicial authority and traveled beyond the courts boundaries, acting to detain by
force and restraint, Arnold and Cotten in these federal courts, denying them from seeking
their due redress in the forum of their choosing, the courts ignored their statutory
mandates that the Removal Statutes be Strictly Applied. Because there is a presumption
against removal jurisdiction, the court must strictly construe the federal removal statute
and resolve all doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d
331, 333 (10th Cir. 1982). The courts refused to uphold their judicial mandates here in
these matters.
63. These District Federal Courts exhibited extreme and severe abuses of discretion in
their prejudicial treatment of Arnold and Cotten, when refusing to afford the same and
equal applications of the laws as guaranteed them under law and decidedly gave
preferential treatment of the law “(CMI)” they were not judicially due to receive because
they had knowingly and fraudulently removed the cases, there was no mistake in these
actions whatsoever.
64. As a direct and proximate result thereto, these courts and “Original Plaintiffs”
“(CMI)” have caused, and continue to cause, severe harm, disruption, frustration, and
36
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
insuperable barriers to justice, those which cause further Delay and Loss of Opportunities
justly due the “Original Defendants”, Arnold and Cotten, in their state forum to which
Arnold and Cotten have right to choose, and did so choose their State Courts to bring
their counterclaims in the forum where the claims arouse out of free of harassment, delay
and upset and have reasonable right to rely on equal applications of these laws to their
ends.
65. The Federal Courts would not have had ever “Original Jurisdiction” if the
originating foreclosure case could be or were filed in the U.S. District Courts of
Beltsville, MD, Prince Georges County: The Foreclosure case is an Action by Plaintiffs
“(CMI)”, Case No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Court Case
and is the Originating Case that began all ensuing litigation.
66. The Competence of the U.S. District Courts discretion in the Fraudulently
Removed Cases is Justly Concerning, Questioned and Challenged by Arnold and Cotten
as these courts proceeded to knowingly trespass on the law by courts who lacked capacity
at all times over the Issues and Parties of the fraudulently removed cases.
67. Congress expressly limited Federal Courts Jurisdictional Powers and especially so
in Removed Cases, realizing the harm that could come out of wrongfully and
fraudulently removed cases from state courts, just as Arnold and Cotten have been
wittingly frustrated, delayed and harmed by this uneven and wrongful application of clear
law.
37
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
68. Congress has long perceived these fraudulently removed cases would acquire a
most grave threat, and that federal courts would usurp state courts' residual jurisdiction
authority, a threat that is very real and is precisely what has occurred here in these instant
matters in which relief from these “Void and Null Orders” is justly being sought out by
Arnold and Cotten in this FRCP 60(b)4 Motion.
69. The Federal Courts abused their discretion in failing to examine continuously their
right to jurisdiction as had they removed political persuasions and discretion and applied
the laws as the courts are charged with such duty with strictness in removal and
jurisdictional disputes, the courts would have had to identify, sua spontra, at some point
and time over the three year plus long period the District Courts wrongfully detained
Arnold and Cottens case and in which Arnold and Cotten were oppressed by the courts
abuse of discretion and detained by the overreaching of these federal courts, as it had to
have become apparent in one of their four amended complaints, Arnold and Cotten were
complaining of injuries sustained at the hands of “(CMI)” and their two illegal
foreclosure actions and that logically speaking, “(CMI)” could not be a Defendant
accorded the legal right to removal ever, how did these Federal Courts get this so very
wrong, or, why did they? The courts clearly abused their discretion in getting these facts
wrong, which is clear however, as a result thereto, lacked necessary subject matter
jurisdiction to preside over these matters.
70. Why were Arnold and Cottens motions never answered and they not afforded an
38
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
opportunity to be heard with the courts prejudicially treating them with a lesser regard
then their adversaries “(CMI)”?
71. The District Courts further abused their discretion in failing to recuse, as it is
apparent these courts have acted in a prejudicial manner when favoring one party so
much that they refuse the duties of their position and refuse to treat parties and laws
equally and fairly in administration upon refusing to defend subject matter jurisdiction as
the courts were required. This type of judicial abuse and overreaching is exactly what
Congress sought out to stem and protect their citizens against, Arnold and Cotten here in
these matters.
72. The courts abused their discretion in determining their Subject Matter Jurisdiction
as for fact and in particular to Removed cases, those which mandate a greater care of
handling by the courts; it appears the courts shrugged off their duty to investigate,
refusing to venture beyond the exterior, shallow and superficial surface of “(CMI)”, Case
Intake Forms, something these courts possessed a binding duty to ensure care be
exercised in removals based on superficial proffers and incomplete forms, all justly
challenged by Arnold and Cotten timely pleads in addition to their pleads to wanting of
Subject Matter Jurisdiction of the Courts, the courts denied Arnold and Cotten equal
treatment of the law, due process, redress, and equal access to the courts, violating their
protected constitutional rights of due process in so doing.
73. The courts possessed a much greater burden upon removal, a duty to go beyond
39
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
the superficial surface of words, recitals of statutes, conclusions of law on the Case
Removal Intake Form and were to exercise judicial prudence and due diligence, that
would guide them to journey to the ends necessary to establish their jurisdiction beyond
doubt; as such, the courts failed to investigate omitted facts by the removing party
“(CMI)”, and accepted in error these recitals of statutes, words and statements of
proffered entitlement to remove.
74. “(CMI)”, clearly did not carry their burden to remove onto the courts and the
courts clearly ignored “(CMI)” infirmed removal statements as legal facts, “(CMI)”, was
never a defendant who could remove and in their omitting the related cases and
foreclosure cases, by actions of these frauds, gained access to the Federal Courts they
otherwise did not have right to admittance.
75. None of the deficient Removal Forms identifies the cases related, the two
foreclosure cases that are, and remain, the nexus of Arnold and Cottens injuries as do
their TILA injuries and other well plead consumer injuries alike.
76. Had the courts read the complaints in the proper light and examined the case
records, it would have concluded some three years sooner, the removals were fraudulent
because “(CMI)” was not a defendant who could avail themselves to Removal Remedies
that raises questions as to exactly why “(CMI)” and their legal agents not know these
material facts and how did the courts miss case inferences as to these facts plead?
77. These grave material facts then must rationally draw into question exactly what
40
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
the federal courts are attempting to accomplish in their acts of judicial defiance as to
established black letter law; one may reasonably infer by their actions contrary in the law,
the Federal Courts may possess other agendas such as political and judicial agendas that
decidedly happen to rest outside the alignments with the Maryland and United States
Supreme Courts Laws governing Removals and Mandated Limitations placed on Federal
Courts Jurisdiction.
78. Throughout the whole of these matters and thru even the appeal process, Arnold
and Cotten have justly challenged the federal courts lack of subject matter jurisdiction
and that, all, these challenges have gone unanswered to this very day and in stark contrast
of exactly what is not suppose to happen in cases that are fraudulently removed and in
which a party justly challenges the courts Standing Orders of Removals as Cotten and
Arnold so did repeatedly and do now yet still, the cause of their valid Motion to Void and
Set Aside the courts orders.
79. The District Courts pushed their jurisdiction onto Arnold and Cotten when by law
and fact they had no right to exercise any jurisdiction at all over the parties and the issues
raised in the fraudulently removed cases and had they not abused their discretion, and,
had they afforded Arnold and Cottens motioned hearings, it is thought jurisdictional
issues could have been resolved three years sooner and at a far less cost to Arnold and
Cotten.
80. The District Courts have acted in a manner so as deny constitutional redress rights
41
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and have burdened Arnold and Cottens fundamental rights under their constitutional
Amendments 1, 5 and 14 and have exercised a jurisdiction denied those federal courts by
the clear and unambiguous Supreme Courts Removal Case Laws followed to date in
Shamrock Oil, West vs. Aurora and Holmes.
81. The courts must sustain constitutional protections and equal application of the
laws of the land.
82. The federal courts are courts of limited jurisdiction for very good concern of
federalism that which is real and present when a court attempts to further agendas
whether those be political and or judicial agenda matters, pushing them onto states and
their citizens for who they do not have such authority or right over, exactly what has
occurred in this instant case at bar.
83. Arnold and Cotten are under consumer protection classification of citizens and
maintain the federal courts must sustain those laws as opposed to flouting these laws and
mandates when acting without authority in attempting to modify, alter and exceed
judicial rights these courts never possessed by clear, applied and followed law.
84. The federal courts in their overreaching have overlooked the applied rational basis
of scrutiny, which presumes the Consumer protection and debtors rights under the laws
enacted by government legislation and are to be valid so long as "the classification,
(Arnold and Cotten are Consumers), and are rationally related to a legitimate state
interest."
42
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
85. Such a classification of Citizen, as does in TILA, Bk. and the Fraudulent
Removals, may appear on the face of the legislation or may be demonstrated by the
plaintiff to have been intentionally utilized in the government's administration of the law.
See Sylvia, 48 F.3d at 819. SUSTAINED 473 U.S. 432, 440 (1985) (citations omitted);
see Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d
275, 290 (4th Cir. 1998) (citations omitted).
86. The legislation must be sustained "if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification." International Science &
(quoting Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996)). These mandates were
ignored, pushed to the side and and overlooked by these federal courts. See Case
Chronology of Cases and Parties, XVIII.
VIII. ISSUES
87. Arnold and Cotten declare their rights to obtain redress and a rendering of due
process of their claims and injuries sustained at the hands of the offending removing
plaintiffs and as a proximate result, have a right to expect these claims will be heard by
an impartial and unbiased court of law, and by a fact finder who is disinterested and
possesses free of conflicts all and any duties owed to either party.
88. The District Courts September 12, 2008 Multiple Case Disposition Order, see
43
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Attached Exhibit, Contained No Supporting Proof as to the Courts Meeting their
Jurisdictional Duty to Removal and Subject Matter Jurisdictional Challenges, failing to
ever carry the courts burden forward in proving jurisdiction explanations upon refusing to
establish proof of subject matter jurisdiction, the District Courts never had and could
never have acquired jurisdiction due to the removing party, “(CMI)”, not being a class of
“Original Defendant” allowed to avail themselves by law to removal relief, as such, the
courts abused their discretion in refusing to hear and ignoring these legal facts.
89. In eschewing the Federal Courts duties as to just challenges to Jurisdiction, the
courts, 1) failed to apply the law fairly and equally as guaranteed by law, 2) denied
Arnold and Cotten their right to redress of their injuries in the forum of their state court
and dong so free from vexatious, expensive disruption to the litigation, 3) denied equal
access to the courts and 4) abused its discretion in so doing all, with which resulted in
misapplication of Established Laws of the Supreme Court Removal Rulings and Dictum
and Consumer Laws alike.
90. Fraudulent Removals wrongly convey jurisdiction to Federal Courts they
otherwise would not have and could not have attained by any legal means, what has
occurred here and must be corrected by an “Order to Set Aside as Voids and Remand of
All Cases Fraudulently Removed”.
91. Federal courts are known to seat themselves in matters in which they lack
jurisdiction in doing so in direct contravention as to schemes rooted not in due process
44
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and the doing of the peoples work but in the courts own agendas, those which congress
has vowed to protect citizens against in limiting those federal courts powers and
jurisdiction as they so did in removal jurisdiction.
92. A watchful eye must be lent at all times to protect against those Federal Courts of
limited jurisdiction from their overreaching tentacles, traveling beyond their granted
boundaries, just as they have done in these very same matters regarding Arnold and
Cotten and the fraudulent removals by “(CMI)”.
93. The Federal Courts have acted in a manner consistent with overreaching, doing so
without legal compass nor sight. One must infer the courts cause and interest in
proceeding in matters in which they lack clear jurisdiction is not one associated to the
works of those courts citizens, the people. Arnold and Cotten make a more persuasive
augment in favor of the appearance that these Federal Courts are operating in a more
Political and Judicial manner then one that is Just and Legal in these matters.
94. Arnold and Cotten maintain the District Courts have overstepped their judicial
boundaries as is the case with the U.S. District Federal Courts of Beltsville, and, is,
exactly why Congress restricted the powers of federal Courts as to jurisdictions, for fear
they could wrongfully attempt to exercise for political and or other judicial agendas such
as “Tort Reform by Force”, in exercising power over people and property they are not
entitled to, exactly, sadly what has occurred in this instant case.
95. Congress intended to protect the public from Federal Courts with Overreaching
45
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Political and Judicial Agendas by enacting the limiting powers of federal courts, and thus,
limiting federalism.
96. These limitations were put in place by congress to protect citizens from a courts
political and or other like judicial agendas which do not embody the laws and United
States and Maryland Constitutional protections as to the most fundamental of rights to
Due Process and Legal Redress under the 1st, 5th and 14th Constitutional Amendment
Rights.
97. The U.S. District Court Case No. RWT 07-2617 was by far not the first civil case
fraudulently removed and should not have been regarded in the determining of any bar
dates, or for like purposes however remarkably, the federal courts lacked capacity to ever
make any findings of merit because they are not courts of competent jurisdiction for
wanting of subject matter jurisdiction and therefore are trespassers on the law.
98. The federal courts lacked Subject Matter Jurisdiction over state law counterclaims
and cases, the initial foreclosure action of Plaintiffs “(CMI)”, Case No. 04-0-05-000046
FC, 01/14/2005, Calvert County Circuit Court, therefore acting at all times beyond their
powers in their continued attempt to enforce the “Void Orders” and, the undue exercise
of restraint caused onto Arnold and Cottens personal jurisdiction that could not be
otherwise attained by those federal courts because “(CMI)” was and could never be a
defendant who could remove and was not allowed to escape liability of Arnold and
Cotten in their state court forum for injuries exacted against Arnold and Cotten in their
46
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
fraudulent foreclosure actions, instituted by “(CMI)” in their state court actions as
plaintiffs, those being, the originating cases along with the subsequent affirmative
counter claims defense actions.
99. As evidenced in a long line of Supreme Court Cases, the supreme courts have
found consistently to date, a court eschewing Subject Matter Jurisdictional challenges
may not ignore correct challenges in an attempt to exercise personal jurisdiction first, that
which is, and forever remains dependant first on the courts Subject Matter Jurisdiction.
The Federal Courts never could have had, and could not attain by any means except fraud
and oppression, (exactly what occurred here), Subject Matter Jurisdiction. “(CMI)” is
not being the type of defendant vested with the rights to remove.
100. The federal courts in their abusive overreaching have disrupted the otherwise
efficient administration of the state courts and Arnold and Cottens case and while
technicalities in removal procedure can be waived if not challenged, (technical objections
were timely and made, the court refused to remand), Subject Matter Jurisdiction can
never be waived and must be promptly defended by the court who is challenged, by
statutory mandates, the Removal Statutes are to be Strictly Applied. Because there is a
presumption against removal jurisdiction, the court must strictly construe the federal
removal statute and resolve all doubt in favor of remand. Fajen v. Foundation Reserve
Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The courts abused their discretion in
refusing to remand and therefore may be reviewed.
47
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
IX. COURTS OF COMPETENT JURISDICTION
101. The U.S. Federal District Courts have proven themselves incompetent courts of
jurisdiction in these matters upon presiding over matters in which reasonably their
jurisdiction was properly, timely and continuously challenged but yet never defended
against by the court.
102. A court of competent jurisdiction is a court that does the work of its people and
applies the laws of the land equally and fairly. Decidedly correct because, another Court
would not have reached the same conclusions of law as did the District Federal Courts in
these matters when getting it so wrong upon eschewing justly challenged objections to
the courts Standing Orders of Removals, and in allowing the fraudulent removals to
remain in their courts when they had to know the removals were illegal and fraudulent as
per the case pleadings in objection and the courts refusal to defend and account
vigorously against challenges to the Federal Courts Subject Matter Jurisdiction and
resolve all disputes by an order of remand as mandated.
103. It appears the District Federal Courts have taken the notion Subject Matter
Jurisdiction may be waived, even though it flies in the face of well established removal
law that dictates precisely, defendants such as those like “(CMI)” are not “Defendants”
who may avail themselves to removal, why were they granted removal rights wrongfully
by these courts and allowed to upset, disrupt and interfere with Arnold and Cottens
48
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Affirmative Defense Actions in their state courts?
X. COURTS WANTING OF SUBJECT MATTER JURISDICTION
104. In fact, the legal ends and conclusions of the Federal Courts overreaching is that
they are trespassers onto jurisdictions, laws and parties for want of “Subject Matter
Jurisdiction”; only a defendant may remove a case to federal courts, Arnold and Cotten
are the true Defendants who filed their Counterclaims in the state courts and had right to
expect they would not be disturbed by vexatious litigants fraudulently removing their
cases in order to seek preferential treatment wrongfully attained in pretending to be the
unfortunately attacked defendants they were not. The courts feed into “(CMI)”
deceptions and even attacked Arnold and Cotten accordingly in their admonishments as
to Arnold and Cottens purports to “filing a Plethora of lawsuits”, implying that “(CMI)”
were victims when in fact the opposite was fact. What is worse, “(CMI)” was allowed to
continue these fraudulent removals at the objection and expense of Arnold and Cotten.
105. The Federal District Courts had no legal right to proceed first to the findings on
merits and will be denied all illegal takings of authority exercised in traveling well
beyond their boundaries of jurisdiction, acting beyond their power. Fact remains, the
District Court was without authority and jurisdiction when it entered its “Void Orders”.
106. By established and followed Supreme Court Law and Cases involving removal
challenges to “Subject Matter Jurisdiction” are accorded a unique status. See, e.g.,
49
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702,
102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) ("[N]o action of the parties can confer
subject-matter jurisdiction upon a federal court."); California v. LaRue, 409 U.S. 109,
112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972) (parties may not confer subject-
matter jurisdiction upon the court by consent); American Fire & Casualty Co. v. Finn,
341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) (principles of estoppel may not be used to
confer subject-matter jurisdiction on a court that would otherwise lack it). Unlike
other issues not involving the merits of a case, subject-matter jurisdiction may be
raised at any time, by any party or even sua sponte by the court itself. Von Dunser v.
Aronoff, 915 F.2d 1071, 1074 (6th Cir.1990).
107. Wherein a case is purportedly tried on the merits, and the federal district court
enters judgment, the issue of subject-matter jurisdiction is cognizable upon appeal. Von
Dunser, 915 F.2d at 1074; the appeals court evaded their duty alike to find correctly
Original Plaintiffs, who became counterclaim defendants, “(CMI)”, were not defendants
permitted to remove and who in no way could avail themselves to the remedy relief of
removal.
108. Because this federal court refused to remand and refused to accept timely
challenges to all fraudulent removals and subject matter jurisdiction, this court has
authority to review under abuse of discretion De Novo for the courts refusal to remand
and accept the authority of their position, that which does not lend validity to actions and
50
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
hearings that were “Voids” “ab initio” and cannot be corrected by an “Order” nunc pro
tunc, but must be “Set Aside as Voids” and “Legal Nullities”.
109. The other jurisdictional challenges were bar for failure to remove, (though
removal not permitted, “(CMI)” did not remove timely also), for the lack of diversity
jurisdiction, facts also alleged by Arnold and Cotten yet ignored by the District courts,
and new evidence CFI was never in bankruptcy at the time of the hearing on January 26,
2010, therefore dismissals was in error and must be reversed and all cases be remanded to
state courts.
XI. U.S. DISTRICT COURTS APPLIED LAWS UNEQUALLY AS TO AUTOMATIC STAY AND THE EFFECTS ON THE DEBTOR AND PROPERTY OF THE ESTATE AND THE RETURN TO STATUS QUO UPON DISCHARGE,
DISMISSAL OR CASE CLOSURE
110. While these matters are moot because the federal courts lacked jurisdiction to
entertain their orders, the district courts wrongly applied established bankruptcy law
when looking past the fact “a bankruptcy filing automatically stays ‘any legal act to
obtain possession of property of the estate or exercise control over property of the estate,’
and ‘any act to collect, assess, or recover a claim against the debtor which arose before
the commencement of the case[.]’” Citizens Bank of Maryland v. Strumpf, 516 U.S. 16,
21, 116 S. Ct. 286, 290, 133 L.Ed.2d 258 (1995).1 The automatic stay is triggered by the
1The automatic stay provision of 11 U.S.C. § 362(a) provides:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section
5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. §
51
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
act of filing a bankruptcy petition and the “Order for Relief” by the court, (not an order of
Discharge), see Matter of Eugene L. Pieper, P.C., 202 B.R. 294 (D.Neb. 1996).
111. The debtor and or creditor will be returned as much as possible to “Status Quo”
upon either three events, Dismissal, Discharge or Closure of Case, until one of these
events occurs, the United States Bankruptcy Court maintains complete control of the
property of the estate.
112. The District Courts wrongly applied none Bk. law statute of limitations as to
claims of the estate, the timely Counterclaims filed by Arnold and Cotten by way of their
December 14, 2006 Adversary Complaint against Plaintiff Creditors, “(CMI)”, see
78(a)(3)), operates as a stay, applicable to all entities, of(1) the commencement or continuation, including the issuance or
employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
(7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
(8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.
52
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Attached Exhibits, Bk Docket evidencing Plaintiffs “(CMI)”, the filing of their second
fraudulent foreclosure and Motion to Lift Stay and Cottens answer wherein Cotten filed
his Counterclaim Adversary Complaint and framed up and executed his “Defensive
Defendant Complaints”. The courts were apprised as the record was replete with these
facts by way of pleadings, motions, the complaint yet, the courts ignored these facts and
all indications pointing to “(CMI)” not being a defendant allowed to remove their counter
claim defenses to federal courts, how and why did the courts get this so wrong?
113. The court misapplied the law regarding consumer actions against TILA Violations
of the “Act”. Arnold and Cotten had one year from the date of creditor, “(CMI)”, Default
under the “Act” by the offending Creditor in which the injured consumer may file a
complaint for violation of the “Act” TILA. In this instance the violating creditor,
(“(CMI)”), refusing to rescind the loan or, in the alternative, seek out an immediate
Injunctive Order of Determination by the offending creditor. A creditor who does not
abide by these requirements waives in complete to preserve any creditor defense a
creditor may mount at a later time.
114. “(CMI)” violated the “Act” in their refusal to rescind and while they sent a boiler
plate letter of denial to Arnold and Cotten on August 23, 2006, the bases for their denial
was patently frivolous and misplaced as properly rebutted presumptions to these facts
were properly plead in Arnold and Cottens 4th Amended Affirmative Defense Complaint
that sustained these defenses.
53
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
115. Applying the none bk. laws of tolling: Arnold entered Bk on 2/14/2005 - all
defenses and legal actions vested to the estate controlled by the courts pursuant to the
estate created and managed by the courts pursuant to 28 U.S.C. § 157, Estate Matters.
The Bk. case was closed on May 29, 2007, see Attached Exhibits, Bk. docket sheets.
116. Cotten and Arnold had one year from May 29, 2007 to file their Violation of TILA
action and would be barred after May 29, 2008.
117. TILA expressly applies equitable tolling statutes in enforcement actions,
permitting the relating back to the initial action filed within one year of the violation.
The courts make no distinction between three years and one year right to bring the action
for violation of the “Act”. “(CMI)” violated the “Act” on August 23, 2006 upon refusing
to rescind. The record shows three actions were filed; the first on December 14, 2006,
the second on March 20, 2007 and the third on August 6, 2007. All actions timely filed
and all amended complaints should have as plead in the complaints relate back to these
dates as for bar questions and dates are concerned.
118. The Bk and Maryland Court Records uphold Arnold and Cotten timely filed their
violation actions immediately upon “(CMI)”,. defaulting on rescission on August 23,
2006, the date of “(CMI)” unfounded Denial Letter.
119. Cotten and Arnold filed their first Defensive Counterclaim complaint just over
three months later on December 14, 2006, more then well within one year of the violation
with public evidence in contradiction the courts misapplication of the law, and same
54
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
findings also found in the case records as this was a summary judgment hearing, no fact
finding was conducted and the prima fascia evidence as to “Material Disclosure
Violations” submitted with the complaint supports. The court acted without authority in
refusing to find the non-disclosure of PMI was a material violation affecting interest
charges, interest, amount financed and total of payments as was the failure to properly
disclose the payment schedules was also a Material Disclosure Violation with the courts
rulings being without merit and law.
120. All amended complaint actions related back to “(CMI)” initial fraudulent
foreclosure actions and again to Cottens December 14, 2006 Affirmative Defense
Adversary Complaint filed in the Bk. Case. Just because “(CMI)”, did not press on with
their fraudulent foreclosure actions after being served with Arnold and Cottens
Counterclaims, this is not a grant to removal rights to the “Original and True Plaintiffs”.
“(CMI)” is the Plaintiff for removal purposes and were never a qualifying defendants
under established removal case law, and were barred from ever removing.
121. The stay is effective upon the filing of the petition even though the parties have no
notice of its existence. In re Scott, 24 B.R. 738 (M.D.Ala. 1982). The automatic stay is
broad in scope and applies to almost every formal and informal action against the debtor
or property of the debtor, except as set forth under 11 U.S.C. § 362(b). 2 Lawrence P.
King, et al., Collier on Bankruptcy ¶ 362.04, at 362-34 (15th ed. 1996).
122. The Federal District Courts declined to apply equitable tolling statutes, (though
55
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
none need be applied as Arnold and Cotten were well within their bar dates), to the filing
of the bankruptcy on February 14, 2005 and the Closing of the Case on May 29, 2007,
this uneven application of established law is in error because all statute of limitations that
are non-bankruptcy law statute of limitations were merely paused during the pending Bk
case (except for Tila Rescission, the action of rescinding is a statute of repose and was
timely exercised. Rescission was Timely and not the issue), and resumed upon the May
29, 2007 Final Dispositional Order closing Arnolds Bk. case with the courts release of
the debtors estate property, Cottens interest alike, because their interest was at all times
joint and because Cotten was also a creditor under Title 11.
123. The courts refused to apply TILA law in bringing of the action and instead applied
Maryland general statute of limitation rules wrongfully, because 5-103 is a none
bankruptcy statute subject to the stay while Arnold was in Bk. and therefore was tolled
until the case was dismissed in May of 2007.
124. Applying the tolling statutes in accord to followed settled federal law that
equitable tolling will be read into every statute unless the law specifically states contrary;
there was no need to toll the statute of repose requiring Arnold and Cotten rescind within
the 3 years allowed them; they clearly rescinded timely so, the only tolling that was not
applied was the general limitations period and as presented in the 4th Amended
Complaint and in the record accord, Arnold and Cotten did not have to bring their first
enforcement action against Plaintiffs “(CMI)”, until at the very earliest, February 8, 2008;
56
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
they brought their Counterclaim complaints first on December 14, 2006 and again on
March 20, 2007, with these cases and the initial foreclosure actions of “(CMI)”,as
Relation Back to Cases, what did the court miss here and how did they grossly misapply
the law substantially to Arnold and Cottens detriment?
125. Arnold and Cotten, framed up and executed Counterclaims as true defendants that
could not be removed to Federal Courts as they fraudulently were, and in which the
federal courts have presided over said matters without jurisdictional authority and right.
126. The District Courts wrongfully applied the laws in contradiction to settled law
cases to the contrary in both TILA and BK case matters as well as removal matters as
plead.
127. Worse case scenario, Arnold and Cotten have TILA claims in Recoupment.
XII. TILA ABUSE OF DISCRETION OBJECTIONS AS TO UNEVEN APPLICATION OF LAWS
128. Arnold and Cotten timely rescinded within the extended three year statute of
limitations, the loan closed on September 15, 2003 and Cotten rescinded on August 7,
2006, in defense to “(CMI)”, second illegal foreclosure action with notice of rescission
issued by Arnold and Cotten for “Material Disclosure Violations” as plead in Arnold and
Cottens 4th Amended Complaint for TILA Violations, emphasis added.
129. “(CMI)”, failed to seek out an injunctive order to determine the validity of their
objections to the rescission therefore is estopped from any such creditor defenses, see
57
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Supra, National Consumer Law Center, 5th Edition, Truth in Lending Series, The
Consumer Credit and Sales Legal Practice Series, plaintiffs “(CMI)”, never sought out an
order of injunction pursuant to 15 U.S.C. 1625(b) and therefore, has no defense
protections due them nor exemptions to be granted.
130. The Courts abused their discretion in application of the law as there was never a
bar to Arnold and Cotten bringing their Counterclaims timely and within statute,
reminding the Court, see Case No. 06-2056, 12/14/2006 Counterclaim in Bk. Case by
Arnold and Cotten, “True Original Defendants” Adversary, Bk. Case No. 05-13246 TJC.
131. Plaintiffs “(CMI)”, are in knowing violation of “TILA The Act” and the
substantive consumer protections afforded consumers relief thereto and remain in
violation to this very day unabated.
132. The courts erred in refusing to apply TILA technical requirements to violations of
the “Act”.
133. Arnold and Cotten argue the courts wrongfully applied TILA Criminal Statute
Violations for Willful and Knowingly Violating TILA, refusal to rescind and issuing and
giving misleading material disclosures constitutes knowing and willful violations of the
“Act” pursuant to 15 U.S.C. 1607, 1611 and 1615.
134. Plaintiffs “(CMI)”, and their willful refusal to rescind, and knowing reliance on
materially defective disclosures they knew were materially altered and forged as they had
altered and forged these documents themselves and thus, these very disclosures were
58
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
never given.
135. Arnold and Cotten provided prima fascia evidence of fraud and deed forgery and
fraudulent knowing of disclosure violations yet the courts ignored these facts also. The
facts are sufficient enough to establish a knowing admittance of “(CMI)”; respectively
the violating creditor is supposed to be unable to avail themselves to any such creditor
defenses whatsoever. The District Court abused their discretion in allowing any such
arguments under the strict mandates of “TILA” and the creditors mandatory compliance
mandates as to rescission. The courts have acted in direct contradiction of their
subsequent rulings of these very courts and of the Supreme Courts with the District
courts refusing to apply established TILA and BK laws as this case record clearly and
establishes and proves with the laws being applied unevenly and unfairly in this case and
these matters.
136. Another court most assuredly would have recognized as plead in the 4th
Amended, Well Plead Complaint, Arnold and Cotten were forced to rescind the loan in a
defensive action in reply to “(CMI)”, and their two illegal foreclosure attempts, yet and
the courts abused their discretion when ignoring these case facts.
137. Because “(CMI)”, 2 illegal foreclosures disclosed loan terms that were in direct
contradiction to sums disclosed and paid “(CMI)”, and their illegal misapplication of
more then timely mortgage payments, Arnold and Cotten rescinded when they discovered
their TILA material disclosure violations on or about August 7, 2006 as to “Material
59
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Disclosure Violations” affecting interest rate, amount financed, total cost of credit and
payment schedules and contradicting documents and disclosures thereto that had been
forged post closing and without their knowing or consent.
138. Arnold and Cotten had a three-year extended right to rescind until September 15,
2006, for material disclosure violations correctly plead in Arnold and Cottens 4th
Amended Complaints and that those causes relate back to the foreclosures and
Counterclaims that were filed timely.
139. Enforcement actions for violations of the “Act” make no distinction in calculating
the year statute in 1 year or 3 year actions because it is the creditors actions or inactions
that causes “the violation of the “Act” with the action beginning to accrue for the first
time upon the creditors violations. Hence, anytime a creditor violates the Act or
continues to violate the Act, the consumers right is ongoing and any creditor who refuses
to uphold the “Act” is in violation of the “Act”, so how did the Federal District Courts
get this so wrong also? The complaint contained well plead facts in support of these facts
and TILA Material Disclosure Violations.
140. Another Court would clearly recognize Arnold and Cottens rights by mandate to
avail themselves to remedies of rescission when a creditor is attempting to fraudulently
foreclose and, in particularly, under TILA, Regulation Z. Subpart B and fair credit and
billing act, when a creditor is claiming interest, loan alterations and charges and a default
not legally due and owed, facts in Arnold and Cottens case.
60
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
141. The offending Creditor pursuant to National Consumer Law Center, 5th
Edition, Truth in Lending Series, The Consumer Credit and Sales Legal Practice
Series, Supra 6.9.5.1 Vesting of Ownership in the Consumer If the Creditor Does
Not Accept Tender. 142. “(CMI)”, only needed to provide a payoff balance
reflecting the affects of rescission and therefore is a creditor who refuses to knowingly
and willingly carry out any section or provision under Regulation Z, Subpart B, of “the
Act”, such creditor is therefore denied and estopped from making those counter-defenses
in a consumer brought actions for violation of the “Act”.
143. TILA is self regulating and to force consumers into court to attain redress due by
the violating creditors was never envisioned by congress because creditors are mandated
and expected to comply with all provisions of the “Act”, these were voluntary solutions
the credit industry sought out as opposed to more extensive and stringent regulation and
government control and oversight of the industry.
144. “(CMI)”, was estopped and not allowed to make any defenses yet the courts failed
to apply the law equally and fairly noting that even the slightest technical violation of the
“Act” is met with harsh an severe consequences to the offending creditor; these laws
were meant to deter creditors from Knowingly and Willfully violating the “Act”, not
encourage and enable them as is the case here in these very sad and grave matters.
145. The District Courts ignored the well plead violations and prima fascia evidence of
material violations contained in the 4th Amended Complaint and contained in the
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Exhibits with there being more than sufficient evidence disclosures were materially
deficient, misleading and deceptive as they relate to the true cost of the loans interest,
cost, payments and amount financed. The District Courts instead attempted to hide
behind a purported bar statute that further fails in law, fact, argument and merit, as
detailed above and herein. All subsequent actions flowed from the initial foreclosure
actions and Arnold and Cotten were and are the “True, Original Defendants” who
brought their initial Counterclaim complaint in just over three months of the offending
creditors violation of the “Act” pursuant to 15 U.S.C. 1640, for just cause of “(CMI)”,
refusal to rescind and refusing yet further Arnold and Cottens many attempts to Tender
while refinance mortgages were readily available even though “(CMI)”, had destroyed
their credit fraudulently, they still were able to locate a refinance loan programs in 2005-
2007.
146. A violating creditor of the “Act” comes with no defenses in hand. The offending
Creditor pursuant to National Consumer Law Center, 5th Edition, Truth in
Lending Series, The Consumer Credit and Sales Legal Practice Series, Supra 7.5
Creditors Defense Not Expressly Provided by TILA affects of rescission and
therefore “Material Violations” were correctly plead by Arnold and Cotten with specific
enough detail in the 4th Amended Complaint as well as there was sufficient evidence to
prove Arnold and Cotten, rescinded the loan within the three year extended right period
also and did so in Counterclaim of “(CMI)”, in reply to their 2nd fraudulent foreclosure
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
actions.
147. The federal courts overlooked the fact Cotten and Arnold stated and correctly
plead their action that was for “Violation of “TILA” the “Act” and offered sufficient
evidence in support, i.e. the four first payment letters documenting conflicting disclosures
of the first payment amounts due, the charging of PMI that was never disclosed on the
Good Faith Estimates or HUD-1 and all violations plead in the 4th Amended Complaint
that either were or lead to “Material Disclosure Violations”.
148. The loan transaction was one wherein Arnold and Cotten relied to their detriment
on false and misleading disclosures causing them to cancel an already closed loan to
accept the “better loan terms proffered” but not honored by the Loan Originator.
149. Arnold and Cotten framed up their Counter-Affirmative Defenses in both illegal
foreclosure cases.
150. To the extent tolling is to be applied to the federal mandates requiring the liberal
reading of Equitable Tolling into every federal statute…….unless expressly prohibited
otherwise by law, (no prohibitions exist in Creditor Violation Actions Under 15 U.S.C.
1640), with no distinction given to an action brought in one year or three years or upon
creditor default as was and is the case here in these case matters for violation of the Act
as it is the act of the Creditor Refusal to Carry Out their mandates in Knowingly
Violating the Act by refusing to uphold TILA mandates, therefore Violating TILA, “the
Act”, not the matter on which the violations were based, in this instant case the
63
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
“Misleading and Defective Material Disclosure Violations”, but their refusal to carry out
the acts of rescission those plead in detail in Arnold and Cottens 4th Amended Complaint
pursuant the Well Plead Complaint.
151. Disturbingly there was a finding that the TILA violating creditors who refused to
rescind a timely issued extended right to rescission, was entitled to protections of the
District Courts; in fact, the case evidences contrary, exhibiting “(CMI)”, creditor defying
the “Act” Knowingly and Willingly in refusing to seek out an injunctive order within the
rescission period time allotted the creditor, 20 days by law, or to carry out their duty to
Rescind the Loan and Tender the Mandated Sums by way of the payoff statement, how
did the courts get this wrong and why did they get it so wrong?
152. Arnold and Cotten sought out an adjusted payoff statement reflecting the effects of
the rescission so they could obtain loans they had secured in ready to tender however
“(CMI)”, refused to provide a payoff statement reflecting the effects of the Rescission,
therefore these creditors were in knowing violation at all times hereto and remain in
violation of the “Act” refusing to rescind and file the canceling documents as they were
mandated to do.
153. “(CMI)”, has by fact waived any right to a Creditors Defense, see Supra, 7.5
National Consumer Law Center, Truth in Lending, Professional Law Practice.
154. A rebuttal presumption was clearly plead in the complaint wherein Arnold and
Cotten alleged they did not receive the disclosures and that the signatures had been
64
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
applied by forgery post closing of the loan and not by their hand, these facts which are
clearly laid out and are legitimate and correct presumptive rebuttal arguments were
clearly made in the well plead complaint.
155. Arnold and Cotten were always able to establish detrimental reliance on the loan
disclosures, as plead in the complaint, because the disclosures clearly were deceptive at
all times failing to disclose the real loan offered and the true interest rate, amounts
payments and cost, in which the consumers correctly moved to cancel the loan in
response to “Material Loan Disclosure Violations” discovered on or about August 7,
2006 when they issued their Extended Right of Rescission Notice to “(CMI)” who
patently refused to Rescind as mandated under law, they were and remain in willful and
knowing violation of TILA mandates as is also this court is also in their refusal to
administer and apply these laws as intended by congress, no liberal application mandates
evident here by these courts.
156. CFI’s agent never appeared in the Summary Judgment hearing and the courts did
not verify CFI was in fact bankrupt when, by law and fact, CFI was not bankrupt and
happened to be a party only in two actions before the Bk courts.
157. This unwarranted dismissal appears to be a possible cure to the supposed diversity
of citizen defect, not that it applies here at all because “(CMI)”, is not a Defendant that
may be availed to removal relief. This sustains Arnold and Cottens timely challenges to
“Subject Matter Jurisdiction” and correctly placed opposition to the Plaintiffs “(CMI)”,
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
fraudulent removals.
158. In summary, the United States Federal District Courts of Beltsville trespass upon
the Law and Act this Courts Jurisdictional Powers with Knowing Usurp of the Maryland
State Courts Powers and these limited jurisdictional federal courts powers in this court
acting in a manner that is beyond their powers and contrary to established rulings
regarding Removals, and Government Mandates under Req. Z. Subpart B, TILA and Bk
laws of the Supreme Court Rulings Contrary said.
159. When a federal court acts outside their statutory rights of “Subject-Matter
Jurisdiction, it violates the fundamental constitutional precept of limited federal
power”.
XIII. LEGAL FACTS
160. This case wrongfully found its way to the United States Federal District Court of
Beltsville by way of Fraudulent Removals by offending, “Original Case Plaintiffs”
“(CMI)”.
161. “(CMI)” became Counter-Defendants when Arnold and Cotten filed their second
defensive counterclaim complaint in their Circuit Courts of Calvert County. for “(CMI)”
Illegal Foreclosure Actions, TILA and Illegal Collection of a Debt and other related
claims.
162. Arnold and Cotten framed up their Counter-Affirmative Defenses in both illegal
foreclosure cases, see Attached Exhibit, Foreclosure Case History and Bk Docket
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
reflecting Plaintiffs “(CMI)” Notice to Foreclose and Motion for Relief From Stay Case
No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Court and “(CMI)” Motion
to Lift Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case
No. 05-13246 TJC, “(CMI)”, is Plaintiff Creditor, AND, Case No. 06-2056, 12/14/2006
in Bk. Case, Arnold and Cotten, “True, Original Defendants” Adversary Counterclaim to
Illegal Foreclosures and TILA claims”, Bk. Case No. 05-13246 TJC.
163. Arnold and Cotten have always maintained they were never in default of their
mortgage payments and can still prove those facts today.
164. Upon fraudulent removal of all cases contained in this motion, see case
Chronology, the First, Third and Fourth cases prove “(CMI)” was at all times hereto the
“Original Plaintiffs”, who, at “(CMI)”, own behest, withdrew their complaints to
foreclose.
165. The supreme court has time and time again rejected courts who elude “Subject
Matter Jurisdiction” questions by attempting to proceed immediately to the merits
question, in the face of jurisdictional objections, as is the case here in these matters and
constitutes an abuse of discretion of the courts in exercising a discretion when is
permitted, Arnold and Cottens claims belonged in their State Courts where they had filed
them as Counter Defendants.
166. The Supreme Court has declined to endorse such a misplaced approach because it
carries the courts beyond the bounds of authorized judicial action and thus offends
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
fundamental principles of separation of powers. This conclusion should come as no
surprise to those Federal Courts, since it is reflected in a long and venerable line of court
cases. "Without Jurisdiction the Court Cannot Proceed at All in Any Cause”.
167. Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the cause."
170. "The general rule is that the parties cannot confer on a federal court
jurisdiction that has not been vested in that court by the Constitution and Congress”.
This means that the parties cannot waive lack of [subject-matter] jurisdiction by
express consent, or by conduct, or even by estoppel; the subject matter jurisdiction of
the federal courts is too basic a concern to the judicial system to be left to the whims
and tactical concerns of the litigants." 13 WRIGHT ET AL., supra, § 3522, at 66-68
68
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
(citations omitted); see, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982).
171. These Courts cannot dispute a Federal District court must determine its
jurisdiction before proceeding to the merits of the case. It contests only the proposition
that the federal court must reach the issue of “Subject-Matter Jurisdiction before reaching
a challenge to personal jurisdiction.
XIV. MARYLAND HONORABLE COURT OF APPEALS ABILITY TO REVIEW DE NOVA THE LAWS FOR ABUSE OF DISCRETION
172. Subject Matter Jurisdiction cannot be waived or consented to, particularly in
Removal cases, where genuine concern for overreaching of federal courts remains a real
and viable apprehension for every state court. Arnold and Cotten ask these Honorable
Courts to Void and Set Aside All Orders.
173. There is no evidence the District Federal Courts would ever have jurisdiction over
Arnold and Cottens Counterclaims because the removal laws are clear on qualifying
defendant criteria that only “True Original Defendants” may remove, “(CMI)”, are “True
Original Plaintiffs” and cannot remove.
174. Plaintiffs preserved technical arguments from the fraudulently removed cases in
support of “(CMI)” fraudulent removals and because the District Courts refusal to apply
the laws of the land equally and due all United States, Maryland Citizens, these acts
constitute denial of due process and are an abuse of the courts discretion because a court
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
is without discretion in matters regarding “Subject Matter Jurisdiction” of a court and is
correctly addressed by this “FRCP 60(b)(2)(4) Motion to Set Aside and Void”’.
175. The District Courts of Beltsville, MD have interfered with legally protected due
process and right to redress rights and have denied these right to Maryland Citizens doing
so against established Supreme Court Removal Laws and Constitutional Rights.
176. It appears clear these Federal Courts have exhibited a gross abuse of the courts
discretion in all these matters now stated in this Motion to Set Aside and “Void” all
Orders.
177. A trial court’s ruling on a motion to alter or amend falls under a review for abuse
of discretion. Benson v. State, 389 Md. 615, 653 (2005); Wormwood v. Batching
Systems, Inc., 124 Md. App. 695, 700 (1999).
178. The existence of a factual predicate of fraud, mistake, or irregularity, necessary to
support vacating a judgment under § FRAP 60(b)(1)(2)(3) or, the Order was a “Void” §
FRAP 60(b)4, hence, a Courts Lacking of Subject Matter Jurisdiction is the making of
“Void Orders”, that are a question of law, see Tucker v. Tucker, 35 Md. App. 710, 373
A.2d 16 (1977). In re Adoption/Guardianship No. 93321055/CAD,: 344 Md. 458, 475,
n.5 (1997). If the factual predicate exists, the court’s decision on the motion is reviewed
for abuse of discretion. Id. At 475.
179. Arnold and Cotten assert and maintain such predicate exist as a matter of fact and
law in these matters now before these honorable courts.
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
180. In the above captioned Civil Cases, Civil Case No. 04-0-05-000046 FC, Arnold
and Cotten are “Original Defendants” to this initial illegal action on which all subsequent
actions are predicated on with the counterclaim lawsuits being barred from removal.
180. “(CMI)” sought to foreclose were, and still are, “Original Plaintiffs”. “(CMI)” are
“(CMI)” is again the Plaintiff in their second Illegal Complaint to Foreclose and Lift
Stay,(filed by “(CMI)” Docket No. 130, No. 55-06253 of Bk).
181. Motion to these courts as a matter of law and fact, that be known now onto these
Courts, just as Arnold and Cotten have discovered, the “Order” is a “Void” and
“Nullity” “ab initio”, and must be set aside for what they are, nullities at inception for the
courts wanting at all times of “Subject Matter Jurisdiction” over both “Issues and
Parties”.
182. The courts could never attain personal jurisdiction over Arnold and Cottens claims
because they had a binding right to litigate their claims in their state courts forum where
the actions started out and because they were and are the “True Original Defendants” for
the purpose of all related removal actions. “(CMI)” is and was the “Original Plaintiffs”
and not allowed to remove.
183. Subject Matter Jurisdiction May not Be Waived Nor Estopped and has been
Wrongfully Conferred to the District Federal Courts by “(CMI) acts of Fraud in the
procurement of judgment.
XV. STANDARD OF REVIEW FOR MOTION TO SET
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
ASIDE “VOID ORDERS” ON MOTION PURSUANT TO FRCP 60(b)4
185. Motion to Void FRCP § 60(b)(2)(4), for Mistake and for Void is properly before
these honorable Courts by motion that is being made before the expiration of one year as
this statute applies to FRCP § 60(b)(2) Mistake, in that these courts dismissed defendant
CFI wrongfully and § 60(b)(2) Void has also been reasonably brought.
186. On Motion to set aside and void, this court is vested with the just authority to Set
Aside and Vacate the “Orders as Nullities and Voids” because they are just that, "Voids"
for both Courts Wanting of Jurisdiction, pursuant to Rule § 60(b)(4), See Heyman v. M.L.
Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997).
187. Arnold and Cotten assert these Honorable Courts possess full authority vested to
review a motion to vacate a judgment under Rule 60(b)(4) for lack of a courts
jurisdictional authority, abuse of that courts discretion and violation of due process. See
188. Here in this motion to vacate the courts “Orders”, the “Orders” Collectively are
clearly “Void Orders” under Rule 60(b)(4) and are due to receive the relief requested in
this motion for lack of the courts jurisdictional authority, abuse of the courts discretion
and violations of due process in refusing to apply the laws equally and fairly as they are
due to be applied.
189. This court has the authority to review de novo, for abuse of discretions. See
72
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
FRCP § 60(b)(4) are reviewed for abuse of discretion, that of which must also be
considered in this case as well as FRCP § 60(b)(4)); see also New York Life Ins. Co. v.
Brown, 84 F.3d 137, 142 (5th Cir. 1996).
190. “(CMI)” fraudulently removed the cases detailed in the case Chronology contained
in this Motion to Set Aside and Void and did so with the intent to mislead the courts as
had they listed all related cases, the courts long ago would have had no choice, as is the
same now, but to decline jurisdiction not due this court over the fraudulently removed
cases as the courts would have due notice and warning, aside from those warnings
provided the courts by Arnold and Cotten, remand for lack of jurisdiction of these
Federal Courts.
191. Under FRCP § 60(b)(4), any court of law may relieve a party from a final
judgment or order that is a “Void or a Nullity”, Arnold and Cotten justly are seeking this
honorable courts relief.
192. A movant claiming relief under Rule 60(b)(4) need not establish a meritorious
defense. See Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 280 (5th Cir.
1987). 193. Relief under Rule § 60(b)(4) remains an extraordinary remedy resting
exclusively in the concept giving rise to the fact that a "Void Judgment” arises out of and
from the assumption there has been an abuse in its discretion by those Courts, those facts
clearly laid out now and proven herein and now, the courts clearly abused their discretion
73
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and employed discretion in considering the objections to “Subject Matter Jurisdiction”
claims in this instant action at bar. It is clear discretion has no place where “Subject
Matter Jurisdiction” is concerned, the case facts must convey jurisdiction.
194. In so much as the Orders of this Courts are Voids ab initio, and the Court had a
duty which requires they examine jurisdiction continuously and sua sponta, that which
cannot be ignored, it is clear nothing can save these “Orders” that are “Voids and Legal
Nullities”, parties cannot and did not agree to jurisdiction trespasses of the fraudulent
removals that extend no authority to these courts because “(CMI)” are the “True and
Original plaintiffs for who cannot remove to federal courts nor can they remove
counterclaims either.
195. These Orders may not be held to be Orders that are “Void” merely because it is or
may be erroneous." Baumlin & Ernst, Ltd. v.Gemini, Ltd., 637 F.2d 238, 242 (4th Cir.
1980).
196. Instead, a judgment may be vacated for voidness under Rule § 60(b)(4) only if the
rendering court lacked Personal and Subject Matter Jurisdiction, or acted in a manner
inconsistent with due process of law, all is exactly what happened in these matters at bar,
Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992), all of these events have
occurred in these instant matters before the courts now on this motion.
197. The courts may not dodge Subject Matter Jurisdiction requirements of the court’s
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
hence resulting in the judgment being a "complete nullity and without legal effect.."
Baumlin & Ernst, Ltd. v. Gemini, Ltd., 637 F.2d at 241 (4th Cir. 1980).
198. “Subject Matter Jurisdiction” may not be granted by a few parties, as the District
courts “Orders” wrongfully imply and these courts order must be set aside on all
fraudulently removed cases.
XVI. JURISDICTION ARGUMENTS
199. Plaintiffs “(CMI)” never had the authority to remove and achieved removal by
deceptively failing to record all related cases, accomplishing the removal by their acts of
fraud, specifically, Civil Case No. 04-0-05-000046 FC and, Bankruptcy Complaint to Lift
Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case No. 05-
13246 TJC, and Bk. Case No. 06-2056, 12/14/2006 Counterclaims in Bk. Case by Arnold
and Cotten, “Original Defendants” Adversary Counterclaims by “Original Defendants
Arnold and Cotten”, Bk. Case No. 05-13246 TJC: The courts violated due process when
ignoring Arnold and Cottens many demands for remand and objections to the fraudulent
removals.
200. This court made a clear error in their jurisdictional authority and abused their
discretion in continuing to preside over matters when it was without doubt they had
usurped Congress and the Bankruptcy courts Authority and Power when refusing to carry
out the laws mandates and must be corrected as to permitting courts to act in such a
conflicting capacity as such actions, “seriously undercuts the orderly process of the law.”
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Celotex Corporation v. Edwards, 514 U.S. 300, 313, 115 S. Ct. 1493, 1501, 131 L. Ed.2d
403 (1995).
201. Lack of jurisdiction cannot be corrected by an order nunc pro tunc as evidenced
here in this instant case. The only proper office of a Nunc Pro Tunc order is to correct a
mistake in the records; it cannot be used to rewrite history." E.g., Transamerica Ins. Co.
v. South, 975 F.2d 321, 325-26 (7th Cir. 1992); United States v. Daniels, 902 F.2d 1238,
1240 (7th Cir. 1990); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987).
And Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir.
1999).
WHEREFORE PLAINTIFFS PREY FOR RELIEF, properly and justly
compel these Honorable Courts to “Order and DECREE “Void” this Courts “Orders” as
“Nullities” and restore onto “True, Original Defendants” Arnold and Cotten, the “Status
Quo” of all their Fraudulently Removed Cases, vesting further all legal rights thereto of
the fraudulently removed cases and Order Remand, Vacating All Orders and to grant all
and any other relief these honorable courts deem just and due, that which must further
include Court Cost and Sanctions for All Fraudulent Removals.
Respectfully Submitted,
_______________________________Kathleen Arnold & Timothy A. Cotten,
Pro Se Defendants9543 North Side Drive
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Owings, Md 20736(410) 257-5283
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UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
XVII. ARGUMENTS AND MEMORANDUM OF LAW
1. “The appropriate course [for a federal court] is to examine for subject matter
jurisdiction constantly and, if, it is found lacking, to remand to state court if appropriate,
or otherwise dismiss." Because the right of removal is vested exclusively in a true
defendant, a plaintiff who has chosen to commence the action in state court cannot later
78
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
remove to federal court, even to defend against the counterclaim, as here in this instant
case at bar. See 14C Wright, Miller and Cooper, Federal Practice and Procedure:
Jurisdiction 3d §3731 (1998). The “well-established rule is that the plaintiff, who chose
the forum, is bound by that choice and may not remove the case.” Scott v.
2. Arnold and Cotten contend the courts had and continue to have a duty to reconcile
the conflicting rights to removal by parties and therefore had a binding obligation to
immediately defend challenges made to the courts Subject Matter Jurisdiction raised
repeatedly by Arnold and Cotten. Despite the pleadings, motions and objections, the
Federal Courts patently ignored Arnold and Cottens just challenges and therefore abused
their discretion in so doing.
3. As those District Federal Courts have cause to know, “Subject Matter Jurisdiction”
may not be waived or Estopped, therefore the question must be presented and addressed
as to exactly why did these courts ignore “Subject Matter Jurisdiction” challenges by
Arnold and Cotten in these matters?
4. Arnold and Cotten contend the courts September 12, 2008 Order made under Case
No. 8:07-cv-02722-RWT, see Attached Exhibit, denying and dismissing all motions for
hearings on the fraudulently removed cases and claims, (those belonging to the State of
Maryland), and the District Courts refusal to account for the courts Subject Matter
Jurisdiction; both constitute severe abuses of discretion and denial of due process and
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redress. 'Due regard for the rightful independence of state governments, which should
actuate federal courts, requires that they scrupulously confine their own jurisdiction to the
precise limits which the statute has defined'. Healy v. Ratta, 292 U.S. 263, 270 , 54 S.Ct.
700, 703; see Kline v. Burke Construction Co., 260 U.S. 226, 233 , 234 S., 43 S.Ct. 79,
82, 24 A.L.R. 1077; Matthews v. Rodgers, 284 U.S. 521, 525 , 52 S.Ct. 217, 219; cf.
Elgin v. Marshall, 106 U.S. 578 , 1 S.Ct. 484.
5. The Federal Courts never defended as the are mandated to, their Subject Matter
Jurisdiction Challenges, failing to defend and prove their challenged Subject Matter
Jurisdiction that which they could not prove and had no legal authority or right to waive
these mandatory procedures in their proceeding with restraining Arnold and Cotten in
their courts illegally, Arnold and Cotten are the true defendants and they never removed
nor filed their counterclaim causes in these Federal District Courts, noting this court did
not even have personal jurisdiction over removing defendants “(CMI)” because they
were “True, Origional Plaintiffs not allowed to remove.
6. At some time and point this District Federal Court had to realize in reading Arnold
and Cottens 4th Amended Complaint and subsequent complaints, pleadings and motions,
that it was evident all cases evolved from the “Plaintiffs” “(CMI)” two foreclosure
actions, therefore eliminating “(CMI)” all together as a defendant charged with the right
permitted to remove under established removal law as only “Defendants” may remove,
with it being clear “(CMI)” is and always was the “Plaintiff” and, as Counterclaim
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Defendants, these cases are not cases eligible to be removed as the Supreme Court has
held repeatedly. “(CMI)”, and their Legal Agents knew this and had cause to know this
upon executing the all fraudulent removals.
7. Had these District Courts accepted their mandatory charges to challenges to
subject matter jurisdiction and the fraudulent removal allegations, they would have
discovered promptly, some three years earlier, their courts lacked Subject Matter
Jurisdiction to hear the fraudulently removed cases.
8. Removing true Plaintiffs “(CMI)” made intentional Omissions on the Case
Removal Court Intake Forms, see Attached Exhibits.
9. The honorable courts were content in not scratching the surface and refused to
look beyond the superficial case removal intake forms, and apparently negating to ever
conduct an independent removal analysis as required of Federal Courts in Removal
Cases, and especially those in which the removals are contested as here.
10. These courts had a duty to strictly construe removal statutes that dictates Removal
Statute are Strictly Applied. Because there is a presumption against removal
jurisdiction, the court must strictly construe the federal removal statute and resolve
all doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333
(10th Cir. 1982).
11. These Courts illegally restrained and detained Arnold and Cotten holding them in
a court without authority to enter any “Order” because Subject Matter Jurisdiction cannot
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be waived or acquiesced, and is only granted the courts by strict following of the
Removal Laws. Clearly here in this case, there was never any legal bases for this court to
proceed first to the merits of the case and particularly in light of Arnold and Cottens
urging onto the courts to examine the removals and demand for the courts to defend their
misplaced claim of rights to a jurisdiction they simply never had and doing so
independent of the removing parties notably infirmed pleadings……to which all these
actions or inactions, resulted in this court abusing their discretion.
12. Had the District courts exercised proper discretion and conducted an independent
case search as mandated, they would have more then concluded the fraudulently removed
cases were not cases subject to removal because the removing Defendants, “(CMI)” were
not the “True Original Defendants” but are and were the “True Original Plaintiffs”
therefore a reasonable diligent investigation beneath “(CMI)” removal case intake forms
combined with Arnold and Cottens timely motions for remand, these contrary facts
should have been obvious to the courts and the courts should have forced “(CMI)” to
carry their burden and ruled in favor of remand to resolve these discrepancies as the
courts are mandated to act in accord.
13. The courts could have spared Arnold and Cotten of these undue delays in their
case by fully defending their right to preside over the wrongfully and fraudulently
removed cases, as it stands now, because the courts lacked subject matter jurisdiction
Arnold and Cotten are left still waiting for justice because by law and fact, this courts
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
orders lacked legal standing and are voids.
14. The courts never defended their challenges to jurisdiction but yet, had a binding
duty to first decide Subject Matter Jurisdiction when confronted with challenges in
removal of cases in which the existence of subject-matter jurisdiction is reasonably
questioned as clearly here in these matters at bar. It was and continues to be reasonably
questioned by Arnold and Cotten repeatedly throughout the past three years and now
again formally in this motion to Set Aside and Void for Fraud and Mistake, the Mistake
being this court dismissal of CFI without just cause because CFI was never in
Bankruptcy as of the hearing on January 26, 2010, nor could plaintiffs remove cases to
federal courts, even if they become counterdefendants, plaintiffs cannot not remove.
15. Arnold and Cotten argue that the court should have as they are bound by Supreme
Court dictum, were to consider the issues first of subject-matter jurisdiction as
challenged by Arnold and Cotten justly, prior to this court proceeding to address matters
in the case they never had and could not gain authority to preside over said matters
because Plaintiffs cannot remove cases to federal courts even if they become
counterdefendants, a plaintiff is the master of their complaint.
16. There be never a reason for this Federal Court to exercise a power and authority it
merely never had when ignoring black letter law that has already been decided for this
district court and has been already described, Article III envisions state courts as the
default for all claims, based in both state and federal law. See Healy, 292 U.S. at 270,
83
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
54 S.Ct. at 703; supra part II.
17. Where Congress has not extended federal subject-matter jurisdiction, the courts
should respect the Article III default of residual state court jurisdiction. See, e.g., 13
Wright, Miller & Cooper, supra, § 3522, at 61-62. Therefore, although the ultimate
issue might prove to be one of federal law, a federal court may not deprive state courts
of their authority, regardless of consideration to a complaint raising federal question,
and as is consistent with recent Supreme Court Rulings.
18. This District court has attempted to decide personal subject matters prior to first
identifying they even possessed at all times a right that at all times was not existent, (all
cases were fraudulently removed and consolidated were non-removal cases).
19. We stand to remind these Honorable Courts of the limited extent of the Federal
courts jurisdictional powers over claims that arouse under the state courts of Maryland,
this is where Arnold and Cottens claims arouse pursuant to Plaintiffs “(CMI)”,
Fraudulent Foreclosure Actions.
20. Arnold and Cottens claims arouse in their state of Maryland and while the
“Original Plaintiffs”, “(CMI)” were in fact named as Defendants in Arnold and Cottens
CounterDefense Adversary complaints, “(CMI)” was at all times relevant thereto the
“Original Plaintiffs”, to which no removal was permitted and is exactly why Arnold and
Cotten contend they Omitted time and time again, on a total of 5 Fraudulent Removals,
the Two Subsequent Foreclosure Actions they had taken, and in which Arnold and Cotten
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had clearly framed up and executed their Affirmative Defense Countercomplaint
lawsuits, claims that which do not change the fact that Arnold and Cotten are and remain,
the “Original Defendants”, therefore making CitiMortgages Inc. et. al. Removals
Fraudulent as Alleged by Arnold and Cotten and as to the Removal Case Intake Forms
Exhibits, see Attached Exhibits, “(CMI)” “Omitted All Related Foreclosure Cases”, see
Cases and Party Chronicle in this complaint.
21. Had this District Court dug this out of the state court case history or, granted and
allowed Arnold and Cottens many timely motions for hearings on the courts wanting for
Subject Matter Jurisdiction, these courts would have timely discovered, if they did not
know, they lacked jurisdiction over the case.
22. The Technical Removal Violations were also asserted timely upon each fraudulent
removal; this court at all times thereto Abused their Discretion in Refusing to Resolve
these matters properly Raised by Arnold and Cotten as the record reflects.
23. The United States District Courts of Beltsville have acted beyond the powers
vested onto them, proceeding beyond their judicial powers in forcing upon Arnold and
Cotten a jurisdiction not conferred to these courts by law.
24. Fact is, quoting from Shamrock holding, "Only the jurisdiction of the Supreme
Court is derived directly from the Constitution. In Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941), the Supreme Court
considered the question of “whether the suit in which [a] counterclaim is filed is one
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removable by the [original] plaintiff to the federal district court ․,” id. at 103, 61 S.Ct.
868, under the statutory predecessor to § 1441(a), which provided that an action “may
be removed by the defendant or defendants therein to the district court of the United
States for the proper district,” id. at 105 n. 1, 61 S.Ct. 868. Although the Court
acknowledged that, between 1875 and 1887, the removal statute allowed “either
party” to remove the suit to federal court, id. at 104-05, 61 S.Ct. 868, the Court
concluded that Congress “narrow[ed] the federal jurisdiction on removal” by
amending the statute in 1887 to allow removal only “by the ‘defendant or defendants'
in the suit,” id. at 107, 61 S.Ct. 868. Noting that interpretation of removal statutes
“call[ed] for ․ strict construction,” id. at 108, 61 S.Ct. 868, the Court thus held that the
original plaintiff against whom the original defendant had filed a counterclaim could
not remove the case to federal court under § 1441(a)'s predecessor.
25. Congress has noted, defendants in the traditional sense of parties against whom
the [original] plaintiff asserts claims.” First Nat'l Bank of Pulaski v. Curry, 301 F.3d
456, 462-63 (6th Cir.2002) (noting that the American Law Institute has recommended
that Congress “make clear what the present law merely implies: the right of removal
applies only to the action as framed by the pleading that commences the action.
Counterclaims, cross claims, and third-party claims cannot be the basis for removal
[under § 1441(a) ]”); see also Florence v. ABM Indus., 226 F.Supp.2d 747, 749
86
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
(D.Md.2002) (“[I]n adopting the current language [of the removal statute], Congress
intended to restrict removal jurisdiction solely to the defendant to the main claim.”),
Arnold and Cotten are clearly the defendants to the main claim of “(CMI)”
foreclosure actions.
25. Every other federal court ... derives its jurisdiction wholly from the authority of
Congress. That body may give, withhold or restrict such jurisdiction at its discretion,
provided it not be extended beyond the boundaries fixed by the Constitution." Kline v.
Accordingly, "courts should proceed with caution in construing constitutional and
statutory provisions dealing with the jurisdiction of the federal courts," Victory Carriers,
Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d 383 (1971), and because
the Constitution leaves Congress the policy choice concerning how far the federal courts'
jurisdiction should extend.
26. "When Federal questions arise in cases pending in the state courts such as
“Original Defendants”, Arnold and Cottens Affirmative Defensive counterclaims against
“(CMI)” “those state courts are competent, and it is their duty, to decide them." Id. at
190-91, 22 S.Ct. at 49. The Supreme Courts and federal courts have stated repeatedly
they know of nothing in the intervening years to cause these courts to doubt the state
court's ability to apply federal law”.
27. Under our federal constitutional scheme, the state courts are assumed to be
87
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equally capable of deciding state and federal issues.
28. To the extent that Congress elects to confer only limited jurisdiction on the federal
courts, state courts become the sole vehicle for obtaining initial review of some federal
and state claims. Cf., e.g., Victory Carriers, 404 U.S. at 212, 92 S.Ct. at 425.
29. Where Congress has given the lower federal courts jurisdiction over certain
controversies, " 'Due regard for the rightful independence of state governments, which
should actuate federal courts, requires that they scrupulously confine their own
jurisdiction to the precise limits which a federal statute has defined.' " Id. (quoting
Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)).
30. Intervention of the District Courts without expressed authority has resulted in
“Void Orders” because this federal court has and is exceeding their authority in their
failure to defend subject matter jurisdiction before deciding personal jurisdictional
matters the court had a duty in which to apply the law fairly and equally, they have failed
to do so in these matters with it being unfair for the courts to deny proper, timely
remands to state courts that were at all times legally due.
31. The supreme courts have reached these decisions the same time and time again
and has ruled in allowing a court unfettered access to Personal Jurisdiction under the
appearance of Federal Question, if allowed, would have a tendency to allow a court to
abuse its jurisdictional privileges, which are limited by congress for reasons to prevent
the courts from exceeding their jurisdiction authority and as they have so done in these
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matters.
32. The Federal Courts in these grave matters, have proven they lack the desire and or
ability to apply the laws fairly and evenly as evidenced alone in their severe abuses of
discretion exhibited in the Fraudulent Removals of Arnold and Cottens cases from the
Circuit Courts of Calvert County and the jurisdictional challenges timely mounted by
Arnold and Cotten but yet eschewed by this court.
33. Arnold and Cotten have pause for alarm based over this Federal Courts
mishandling of the fraudulent removals of their state Cases, given weight and due
consideration to those courts uneven application of decided removal case law by the
Supreme Courts of the United States regarding removals, and, this very courts decisions
to ostensibly ignore Subject Matter Jurisdiction challenges, resulting in decisions clearly
contrary to established laws, that has caused an unreasonable application of clearly
established Federal laws by the Supreme Courts of the United States." 28 U.S.C. §
2254(d)(1).
34. This federal court has refused to defend against wrongful removals and subject
matter jurisdiction that goes against judicial guidance and rules of settled Supreme Court
Law in removal cases similar to this case such as Shamrock Oil v. Steel, Palisades and
West v. Aurora holdings, all cases affirmatively denied a defendant subjected to
counterclaims any right to remove, “(CMI)” falls under this category of defendants who
are barred from removal therefore these courts never could achieve personal jurisdiction
89
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
to enter their void orders.
35. This Federal Court has arrived at decidedly contrary and different conclusions of
law in this courts flawed misapplication of the law that which is profoundly inconsistent
to established Supreme Court Rulings over the same removal and case matters.
36. The U.S. District Courts arrived at a wrongful decision when eschewing Subject
Matter Jurisdiction challenges "contrary to" clearly established federal law that "if the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently from [the Supreme] Court
on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13
(2000). The "unreasonable application" are grounds for granting the writ and applies "if
the state court identifies the correct governing legal principle from [the Supreme Court's]
decisions but unreasonably applies that principle to the facts of the prisoner's case."
Williams, 529 U.S. at 412-13. See also Bell:
37. IN AN ESTEEMED LINE OF SUPREME COURT CASES, the Supreme
Court has held that, without proper jurisdiction, a court cannot proceed at all, but can
only note the jurisdictional defect and dismiss the suit, See, e.g., Capron v. Van Noorden,
2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43. Bell v. Hood,
supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414
U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v.
Avrech, 418 U.S. 676 , 678 (per curiam); United States v. Augenblick, 393 U.S. 348 ;
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United States v. Augenblick, 393 U.S. 348 ; and Chandler v. Judicial Council of Tenth
Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law’s
meaning or constitutionality when it has no jurisdiction to do so is, by very definition, an
ultra vires act. Pp. 8—17.
38. It should be noted here that as in this case at bar, a Rule 60(b)(4) motion involves
a different standard of review than the other Rule 60(b) subsections since the court held
"[w]hen the grant or denial turns on the validity of the judgment, discretion has no place
for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.
The judgment here must be set aside for it is, “Void” or Legal Nullity”.
39. A court considering a motion to vacate a judgment, which it finds void for lack of
jurisdiction, has no discretion to hold that the judgment should not be set aside. Watts v.
Pinckney, 752 F.2d 406, 410 (9th Cir.1985).
40. A Rule 60(b)(4), as motioned by Arnold and Cotten, is justly employed to attack
void judgment, see Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990). The judgment was
set aside for lack of personal jurisdiction based on improper service by publication. The
court defined a judgment as void "only if the court rendering it lacked jurisdiction of
the subject matter or of the parties, or if it acted in a manner inconsistent with due
process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala.
1978)). This is the case here at bar and subject this correctly motioned request for due
Rule § 60(b)(2)(4) relief, and is proper and must be applied.
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41. "The consequences of an act beyond the court's jurisdiction in the fundamental
sense differs from the consequences of an act in excess of jurisdiction.
42. An act beyond a court's jurisdiction in the fundamental sense is “void”; it may be
set-aside at any time and no valid rights can accrue there under. In contrast, an act in
excess of jurisdiction is valid until set aside, and parties may be precluded from setting it
aside by such things as waiver, Estoppel, or the passage of time", none of these elements
apply here and are not relevant as this was not an excess of jurisdiction but clearly no
doubt, a reaching of beyond the District Courts Jurisdiction, Plaintiffs cannot be a
removing party to federal courts.
43. In the Fifth Circuit, on its own motion, granted rehearing en banc, thereby
vacating the panel decision. See 129 F. 3d 746 (1997). In a 9-to-7 decision, the en banc
court held that, in removed cases, district courts must decide issues of subject-matter
jurisdiction first, reaching issues of personal jurisdiction "only if subject-matter
jurisdiction is found to exist." 145 F. 3d, at 214. Noting Steel Co. 's instruction that
subject-matter jurisdiction must be " `established as a threshold matter,' " 145 F. 3d, at
217 (quoting 523 U. S., at 94 ), the Court of Appeals derived from that decision "counsel
against" recognition of judicial discretion to proceed directly to personal jurisdiction. 145
F. 3d, at 218. The court limited its holding to removed cases; it perceived in those cases
the most grave threat that federal courts would "usur[p] ... state courts' residual
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
44. Arnold and Cotten correctly argue, "Once Challenged”, “jurisdiction cannot be
assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d
389. Accordingly, subject-matter delineations must be policed by the courts on their own
initiative, even at the highest level. See Steel Co. , 523 U. S., at 94 -95; Fed. Rule Civ.
Proc. 12(h)(3) ("Whenever it appears ... that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action."); 28 U. S. C. §1447(c) (1994 ed., Supp. III)
("If at any time before final judgment [in a removed case] it appears that the district court
lacks “Subject Matter Jurisdiction, the case shall be remanded."). Personal jurisdiction,
on the other hand, "represents a restriction on judicial power ... as a matter of individual
liberty." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S.
694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may
forgo that right, effectively consenting to the court's exercise of adjudicatory authority.
See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person
waivable); Insurance Corp. of Ireland , 456 U. S., at 703 (same), notably, Arnold and
Cotten never agreed to jurisdiction as the case is replete with evidence to such facts.
45. Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230-31 (8th Cir. 1997) (as long as
there is an "arguable basis" for subject matter jurisdiction, a judgment is not void but
merely voidable”; “No arguable basis for subject matter jurisdiction exist” because
CitiMortgage Inc., et. al. is not defined under law as a “true defendant” entitled to avail
themselves to removal therefore making the removal “Orders Void” and all Orders
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
therein and after “Voids”.
46. All “Orders” in Arnold and Cottens fraudulently removed cases are “Voids” and
as a matter of law and fact and must be set aside for the courts wanting of subject matter
jurisdiction. See, Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)
("A void judgment is to be distinguished from an erroneous one, in that the latter is
subject only to direct attack”), these Judgments are “Voids and are subject to direct
attach”.
47. A void judgment is one which, from its inception, was a complete nullity and
without legal effect."), emphasis added, the case here brought by original Subject Matter
Jurisdictional challenges to both Courts and all removed cases and the resulting orders at
bar.
48. In Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938) ("Every court in
rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties
and the subject matter."), this court either abused their discretion and or made error in
their determinations, those of which resulted in the “Void Orders” “at inception”, ab
initio, to which true and original defendants Arnold and Cotten, justly seek to set aside.
49. As applies here in this instant action before these courts, "A judgment is void if
the court acted in a manner inconsistent with due process. A void judgment is a nullity
and may be vacated at any time." 261 Kan. at 862.
50. What is more, "A void judgment is one that has been procured by extrinsic or
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collateral fraud or entered by a court that did not have jurisdiction over the subject
matter or the parties." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). The
exact case here at bar.
51. As strictly applies in these cases before these honorable courts, A judgment
obtained without jurisdiction over a party is void. Overby v. Overby , 457 S.W.2d 851
(Tenn. 1970), and Arnold and Cotten are justly seeking to escape these “Void Orders”
and “Legal Nullities”, that, are by law and fact, they are entitled to escape the effects of
these “Void Orders”.
52. When jurisdiction is challenged, courts generally do not accept the carte blanche
naked allegations of diverse citizenship or bald assertions See, e.g., Coburg, 369 F.3d
811, (requiring of jurisdictional facts). Plaintiff to state a substantial federal claim and
declining to base jurisdiction upon an allegation that his employer violated “his
constitutional rights”); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660,
(4th Cir.1998) (declining to accept conclusory allegations of residence as prima facie
proof of citizenship for diversity purposes and collecting cases on similar points);
Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1029 (6th Cir.1968), (“Jurisdiction is
not conferred on a federal court in a non-diversity case by mere conclusory allegations
that one's constitutional or civil rights have been violated.”); Powder Power Tool Corp.
v. Powder Actuated Tool Co., 230 F.2d 409, 414 (7th Cir.1956) (“The rule is firmly
settled that the mere allegation of the jurisdictional amount when challenged as it was
95
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
here, is merely not sufficient and that the burden is upon the plaintiff to substantiate its
allegation.” (citation omitted)).
53. Indeed, “[w]here the pleadings are found wanting, an appellate court may also
review the record for evidence that diversity does exist.” Penteco, 929 F.2d at 1521
(citing Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 48
L.Ed. 1027 (1904)); see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
56 S.Ct. 780, 80 L.Ed. 1135 (1936); F & S Constr. Co. v. Jensen, 337 F.2d 160 (10th
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
55. The Court, in Steel Co., acknowledged that "the absolute purity" of the
jurisdiction-first rule had been diluted in a few extraordinary cases, 523 U. S., at 101 ,
and Justice O'Connor , joined by Justice Kennedy , joined the majority on the
understanding that the Court's opinion did not catalog "an exhaustive list of
circumstances" in which exceptions to the solid rule were appropriate, id. , at 110. No
exceptions here in these matters before the this Court that could acquire personal
jurisdiction either. Arnold and Cottens claims belonged to their state of Maryland
therefore the Federal Courts had no just bases ever for any jurisdictional argument, nor
can one be made because the federal question “arising under” requirements of 1331 never
applied and could not be met.
56. In a respected line of the Supreme Court cases wherein they held that, without
proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional
defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans
for Official English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad
Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13;
Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678
(per curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421
U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88,
distinguished. For a court to pronounce upon a law’s meaning or constitutionality when it
has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17.
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
57. Arnold and Cotten contend “(CMI)” abused the removal laws and did so at all
times to cause expense, harm, confusion, frustration and delay. This case lay wasting for
almost three years in these Federal Courts with no action and a conclusion that has ended
decidedly in “Void Orders”. The Fifth Circuit noted the same concern for abuse, Arnold
and Cotten have noted in “Marathon” posit, the state-court defendants will abuse the
federal system with opportunistic removals. These courts looked to a discretionary rule,
they suggest, will encourage manufactured, convoluted federal subject-matter theories
designed to wrench cases from state court. See 145 F. 3d, at 219; This specter of
unwarranted removal, “we have recently observed”, "rests on an assumption we do not
indulge--that district courts generally will not comprehend, or will balk at applying, the
rules on removal Congress has prescribed... . The well-advised defendant ... will foresee
the likely outcome of an unwarranted removal--a swift and non-reviewable remand order,
see 28 U. S. C. §§1447(c), (d), attended by the displeasure of a district court whose
authority has been improperly invoked." Caterpillar Inc. v. Lewis, 519 U. S. 61, 77-78
(1996).
WHEREFORE MOVANTS ARNOLD AND COTTEN JUSTLY REQUEST
RELIEF DUE PURSUANT TO THIS MOTION TO SET ASIDE AND VOID
ORDERS, FRCP 60(b)(2)(4), from this District Federal Courts “Void Orders” and
Decree ALL “Orders Null and Void” and is to be applied to All Fraudulently Removed
Cases to the United States Federal District Courts of Beltsville, ORDER NOW AND
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
FOREVER THEREAFTER, this Court “Void Orders” be Decreed as “Voids ab inito”,
for wanting of Subject Matter Jurisdiction and ORDER all other relief these courts deem
just, due and proper as such.
Respectfully Submitted, _______________________________Kathleen Arnold & Timothy A. Cotten
Pro Se Defendants9543 North Side DriveOwings, Md 20736(410) 257-5283
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XVIII. LEGAL ACTIONS BY CASES & PARTY POSITION
CHRONOLOGICAL LITIGATION HISTORY
1st. Case No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Courts, First Case Illegal Foreclosure Initiated by “(CMI)”, vs. Arnold et. al., “(CMI)”, and are “Original Plaintiffs, Arnold & Cotten are “Original Defendants”, to this Action; All cases relate back to this complaint pursuant to removal rights, TILA, BK.;
2nd Case No. 05-13246 TJC, Arnold, 02/14/05, United States Bankruptcy Courts, Arnold is Debtor, “(CMI)” Plaintiff Creditor;
3rd. Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case No. 05-13246 TJC, Arnold is Debtor, and Cotten Creditor Defendant; “(CMI)” is Plaintiff Creditor in, 2nd Illegal Complaint to Foreclose & Lift Stay Action filed by “(CMI)”; All cases also relate back to this complaint and 1st. Case No. 04-0-05-000046 FC, 01/14/2005, the Foreclosure, pursuant to removal, TILA and BK. legal claims.
4th Case No. 06-2056, 12/14/2006 Counter-Defendants in Arnold Bk. Case, Action filed by Defendant Creditor Cotten, who is an “Original Defendant” in this Adversary Counterclaims by “Original Defendants” Arnold and Cotten”, Bk. Case No. 05-13246 TJC, Arnold; Cotten files 1st. Counterclaim, Affirmative Defense Adversary Proceedings, Cotten and Arnold Are “Original Defendants” and “(CMI)” remain “Original Plaintiffs, and cannot remove”. For Removal Purposes, Arnold and Cotten, continue as “Original Defendants” - Bk court abused discretion when refusing their motion for remand of Adversary Counterclaim case and forces “Original Defendants Arnold and Cotton” to File New Affirmative Defense Counterclaim in State Courts - Plaintiffs “(CMI)”, were Served this initial Counterclaim complaint thru their Legal Agents, their Foreclosure Lawyers in Arnolds Bk.;
5th Case No. 04C07000353, 03/20/2007, Calvert County Circuit Courts, “Arnold & Cotten”(Plaintiffs, for Filing Purposes Only), Retain “Original Defendant Status for Removal Purposes” in their 2nd Affirmative Defense Counterclaim, Against “(CMI)”, “Original Plaintiffs”; “(CMI)”, in Executing First Fraudulent Removal, Refused to Identify all Related Cases as Listed Above, Subsequent Foreclosure Cases”: “(CMI)” though Listed as Defendants for Purposes of filing the Counterclaim; “(CMI)”, Remains “Original Plaintiffs for Removal Purposes, “(CMI)”;
6th Case No. 04C07001044, 08/06/2007, ” Calvert County Circuit Courts, Arnold
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and Cotten file 3rd. Counterclaim as “Original Defendants” for Removal Purposes in Affirmative Defense to “(CMI)”, 2 Illegal Foreclosures and this 1st Fraudulent Removal by “(CMI)” who are Original Plaintiffs”, Barred From Removal, yet removed to U.S. District Courts, Case No. 08:07-CV-2722 RWT 10/10/2007”: Fraud in Removal - “(CMI)”, Aside from knowing they were not entitled to removal relief and did so fraudulently because they were never the “Original Defendants by Law”, the Original Foreclosure Case Remained Open for Over one Year, i.e., 1st. Foreclosure Case No. 04-0-05-000046 FC, opened on, 01/14/2005, and closed by Plaintiffs “(CMI)” on 01/11/2007; Plaintiffs “(CMI)” Failed to Join all Parties and Notice the Two Foreclosure Cases on the Removal Intake Forms, Original Case, 1st. Foreclosure Case No. 04-0-05-000046 FC, 01/14/2005, Case No. 06-2056 on 12/14/2006, Case No. 55-06253, Docket No. 130 on 06/19/2006, And Case No. 04C07000353 on 03/20/2007, “(CMI)”, failed to State Specifically the Reasons for Removal Avoiding the Question, and the Courts Allowed this to suffice for burden of proof to remove: “(CMI)”, left out the fact they were the “Original Plaintiffs” and did so at All Times Subject First Fraudulent Removal; Arnold and Cotten were Defendants at All Times with “(CMI)” having No Right to Remove because they were not “Original Defendants as Defined for Removal Purposes, But Are and Were “Original Plaintiffs” for removal purposes and were barred from removal at all times and is, therefore the reasons “(CMI)” left out the above two foreclosure cases and adversary affirmative defense complaints filed by “Original Defendants Cotten and Arnold”; these omissions made by “(CMI)” were acts intended to, and did, deceive at all times the Courts when leaving the cases out so that the removals appeared legitimate on superficial evidence provided the courts or on their face, (though there were other technical errors the courts overlooked too), when Arnold and Cotten were never, “Original Plaintiffs”; Just because “(CMI)” Dismissed their First Foreclosure Action in Attempts to Avoid Liability they could not just dismiss or withdraw their Counterclaim actions and force the true Defendants, “Original Defendants Arnold and Cotten” to just Disappear”.
FRAUDULENT REMOVAL ARGUMENTS - The above 6th Case No. 04C07001044, 08/06/2007, Removal Barred by Removing Party “(CMI)”, who at all times are the “Original Plaintiffs, “(CMI)”: the Courts Eschewed their Duties of Office when Ignoring Motions for Demand of Remand and Request for Hearings on Removal and Subject Matter Jurisdiction of the Courts to preside over the cases fraudulently removed with proper objections made, therefore Claims May Not be Barred or Subject to Waiver in Removal Cases and may not be barred by Waiver or Laches, and may not be waived. Arnold and Cotten timely raised Technical Removal Motions, those that were never answered, (a litany of denials in one super large Order is not sufficient showing of the courts jurisdiction and right to preside over fraudulently removed cases. These
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preliminary motions were made within the statutory Laches Time of Rights, 30 Days after Illegal Removal as Prescribed by Law and Evidenced in attached Exhibit, Docket Sheets and Docket Entries No. 24, 10/30/2007 - Complainants Demand to Remand Response to the 10/5/2007 Illegal Removal; Again, see Docket No. 37 on 1/23/2008 Motion to Compel Hearing on Demand to Remand; see Docket No. 38 on 2/5/2008 once more, Demand for Remand and Motion for Sanctions; see Docket No. 41 on 3/10/2008 Demand for Remand and Demand for Hearing on Challenges to the Courts Subject Matter Jurisdiction: The Honorable Courts possessed a binding duty to account exhaustively to the challenged duty to establish subject matter jurisdiction over the removed cases. Notably; removal was improper at all times as Arnold and Cotten plead and cited these facts. “(CMI)”, had been served with the affirmative defense counterclaims two subsequent times, once onto the creditor plaintiffs “(CMI)”, legal agent in the Bankruptcy Adversary Complaint, Case No. 06-2056 filed on December 14, 2006 and a second time in Arnold and Cottens Calvert Circuit Courts, 2nd Compulsory Affirmative Defense Complaint No. 04C07000353 filed on March 20, 2007, not that these arguments are needed because removing party was barred from removal all together and could never have removed.
7th Case No. 04C07001179, 09/04/2007, in the Calvert County Circuit Courts, Arnold and Cotten are Plaintiffs for the purpose of filing this Affirmative Defense Counterclaim and Remain “Original Defendants” for Removal Purposes, “(CMI)”. Remains “Original Plaintiffs” for Removal Purposes, and removed fraudulently to the District Courts Case No. 08:08-CV-00038 RWT, 10/05/2007: Again “Original Plaintiffs “(CMI)” Omitted the Above Related Cases on Removal Intake Form and did so with Intent to Deceive Courts to gain Forum Advantage. The Honorable Courts Went Beyond their Boundaries of the Court Allowing the Removal of Affirmative Defense Counterclaim filed by Arnold and Cotten from Circuit Court, to the U.S. Federal District Courts. The Honorable Courts continued Eschewing timely Demand for Remand Petitioned within Laches Rights of 30 Days Prescribed by Law, Evidenced in attached Exhibit Docket Sheets and Docket Entries No. 7, 1/18/2008 - Demand Remand to, see Docket No. 8 on 2/4/2008 Motion to Compel Hearing on Demand to Remand; see Docket No. 13 on 3/10/2008, Demand for Remand and Demand for Hearing on Courts Subject Matter Jurisdiction:
The Honorable Courts continued to ignore challenged duty to establish subject matter jurisdiction over the removed cases when issuing a blanket Order and Denial of All Arnold and Cottens Motions for Demand, Failing Ever to Establish the Courts Jurisdiction, Jurisdiction they Never Had and that Could Not be Taken, Given nor Waived.
102
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
8th. Case No. 04C07001622, Arnold & Cotten, 11/26/2007, in Affirmative Defense to Continued Illegal Collection Actions by Plaintiff “(CMI)”, Fraudulent Removed by Original Plaintiffs, “(CMI)”, to District Court, Case No. 07-2617, (this and 08-CV-2197 RWT-Consolidated Demand for Remand and New Demand for Remand Again of All Illegally Removed Cases): While the District Courts Detained Arnold and Cotten for over two and a half years never making one declaration as to the courts authority to preside over the cases fraudulently removed, failing to ever Reply,(other then their legally insufficient Order Establishing Subject Matter Jurisdiction, blanket Order, with No Declaration and Finding of Courts Jurisdiction mandated, emphasis added, to Challenged Subject Matter Jurisdiction with this blanket Order Dismissing All Motions and was not sufficient to prove legal right and lend the courts Subject Matter Jurisdiction of the District Courts because “(CMI)” was not an “Original Defendant”, Defined under Removal of the Illegally Removed Cases AND therefore all Removals Were Not Permitted because “(CMI)” was at all times, as the chronology of the case history proves, the Plaintiff for removal purposes and not a defendant who could remove because they were never the true, “Original Defendants”.
9th. Case No. 04C07001623, 11/ 24/ 2007, Complaint filed by “Original Defendants” Arnold and Cotten in the Calvert County Circuit Courts, AND Illegal Removal to District Court, Case No. 08:08-CV-00038 RWT: The Honorable Courts Went Beyond The Boundaries of the Court Allowing the fraudulent Removal of Arnold and Cottens Circuit Court Case to the U.S. Federal District Courts wherein The Honorable Courts continued Eschewing Arnold and Cottens timely Demand for Remand Petitioned within their Laches Rights of 30 Days Prescribed by Law, Evidenced in attached Exhibit Docket Sheets and Docket Entries No. 7, 1/18/2008 - Demand Remand to, see Docket No. 8 on 2/4/2008 Motion to Compel Hearing on Demand to Remand; see Docket No. 13 on 3/10/2008, Demand for Remand and Demand for Hearing on Courts Subject Matter Jurisdiction that Which the Court has No Discretionary Power to Relieve them of this Requirement and Mandate to Defend Subject Matter Challenges:
The Honorable Courts continued to flout their challenged duty to immediately and timely establish subject matter jurisdiction over the removed cases.
10th. Case No. 04C08000773, 06/30/2008, Complaint filed by Arnold and Cotten, (Original Defendants), as to Affirmative Defenses Counterclaim, in Circuit Court for Calvert County - AND District Court Case No. 08-CV-2197 RWT: Removal Barred, “(CMI)”, named in complaint, were the “Original Plaintiffs” in the litigation initiating actions, the 2 Illegal Foreclosures. Court refused to answer Challenged Subject Matter Jurisdiction, electing to ignore the duties of office. The honorable Courts traveled
103
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
beyond their jurisdiction at all times and acted outside of the law when proceeding because a Plaintiff may not remove, “(CMI)” are Plaintiffs for removal purposes and were barred from removal.
104
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
XIX. VERIFICATION
Timothy A. Cotten and Kathleen Arnold, “True and Original Defendants and Counterclaim Plaintiffs, hereby swear and affirm under penalties of perjury, that they have verified all the facts set forth in the foregoing, “Motion to Set Aside the United States District Courts Void Orders for the Courts Wanting of Subject Matter Jurisdiction Pursuant to FRCP § 60(b)(2)(4)” and those facts plead herein and so stated, are true and correct as to the very best of Timothy A. Cotten and Kathleen Arnold knowledge and belief.
Respectfully Submitted, _______________________________Kathleen Arnold & Timothy A. Cotten
Pro Se Plaintiffs9543 North Side DriveOwings, Md 20736(410) 257-5283
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XX. CERTIFICATE OF SERVICE
Kathleen Arnold and Timothy A. Cotten, Defendants, Pro Se, hereby certify that a true and correct copy of the above-referenced Defendants' “Motion to Set Aside Void Order and Void Appeal Order for Want of Subject Matter Jurisdiction Pursuant to FRCP § 60(b)(2)(4)”, and Memorandum of Law In Support thereof, filed in the above-captioned matter, and were served upon the parties listed below, last known legal counsel of record as follows and done so by first class, United States Mail, Postage Prepaid, and Served on the Following Parties on this 13th Day of January, in the year 2011:
Respectfully Submitted, _______________________________Kathleen Arnold & Timothy A. Cotten
Pro Se Defendants9543 North Side DriveOwings, Maryland 20736(410) 257-5283
Weiner Brodsky Sidman Kider PC 1300 19th St NW Fifth Floor Washington, DC 20036 Attn: David M. Souders, Sandra Vipond & Bruce E. Alexander Covahey Boozer Devan and Dore PA 606 Baltimore Ave Suite 302 Towson, MD 21204Attn: Bruce E. Covahey
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UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
AND NOW ON, this day of ,2011, upon consideration of the Defendants “Motion to Set Aside Void Order of the United States District Court of Beltsville for Wanting of Subject Matter Jurisdiction, thus declaring all “Orders Void” ab initio, Pursuant to FRCP § 60(b)(2)(4)”, and for good cause shown, it is hereby ORDERED and DECREED that said Motion of Arnold and Cotten, have proven extraordinary causes necessary to grant this Motion to Set Aside Void Orders for Want of Subject Matter Jurisdiction Pursuant to FRCP § 60(b)4, declaring all “ORDERS VOID” and All Fraudulently Removed Cases REMANDED to Calvert County Circuit Courts, GRANTED ____________.
BY THE COURT:_____________________ J.
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UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
EXHIBITS
1. Docket Sheets of Arnold and Cotten Demands for Remand and many challenges and protest to this Federal Courts Subject Matter Jurisdiction and Demand for Hearings;
2. Original Foreclosure Case No. Case Extract;3. CFI BK Pacer Searches;4. BK Docket History in Support of “(CMI)” being the Plaintiff Creditor; 5. Courts September 12, 2008 Multiple Case Disposition Order;
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UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
FRCP MOTION § 60(b)4 - “VOID ORDERS”,
MOTION TO SET ASIDE VOID ORDERS AND REMAND FOR WANT OF SUBJECT MATTER JURISDICTION AND NOTICE OF COURTS
PROCEEDING WITHOUT CAPACITY AND IN VIOLATION OF STRICT CONGRESSIONAL MANDATES CONCERNING REMOVAL OF ALL STATE
COURT CASES TO FEDERAL COURTS
1. Docket Sheets of Arnold and Cotten Demands for Remand and many challenges and protest to this Federal Courts Subject Matter Jurisdiction and Demand for Hearings;
109
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
EXHIBITS
2. Original Foreclosure Case No. Case Extract;
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
EXHIBITS
3. CFI BK Pacer Searches;
111
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
EXHIBITS
4. BK Docket History in Support of “(CMI)” being the Plaintiff Creditor;
112
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
UNITED STATES DISTRICT COURTDISTRICT OF MARYLAND(GREENBELT DIVISION)
FRCP MOTION § 60(b)(2) and (4) - “VOID ORDERS” AND, DISCOVERY OF EVIDENCE
EXHIBITS
5. Courts September 12, 2008 Multiple Case Disposition Order.
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On a motion to remand, the removing party bears the burden of establishing jurisdiction. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). The removal statute should be construed narrowly with doubt construed against removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 , 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). We look at the complaint. As a general rule, a case arises under federal law only if it is federal law that creates the cause of action. See Franchise Tax Board, 463 U.S. at 8 -10, 103 S.Ct. at 2846. The case, however, may arise under federal law "if a well-pleaded complaint established that [the] right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Id. at 13, 103 S.Ct. at 2848. But, the "mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow, 478 U.S. at 813 , 106 S.Ct. at 3234. See also Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205, 212-15 , 54 S.Ct. 402, 405-06, 78 L.Ed. 755 (1934) (that part of state statutory scheme requires some analysis of federal law is insufficient to invoke federal jurisdiction). [3]
The district court erred in denying Diaz's motion to remand. The nature of Diaz's complaint is that Sheppard is guilty of malpractice, negligence and breach of contract under Florida law. (We do not hint that Diaz's claim has merit or even that he has stated a claim upon which relief can be granted under Florida law). No substantial question of federal law must be answered to determine plaintiff's claims, and federal jurisdiction is lacking. See Ray v. Tennessee Valley Authority, 677 F.2d 818, 825-26 (11th Cir.1982) (holding, pre- Franchise Tax Board, that district court had no federal jurisdiction to hear malpractice case arising from defendant attorney's representation, per appointment by court, of plaintiff in 42 U.S.C. § 1983 action).
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
See generally Clermont & Eisenberg, supra note 2 (discussing the very low percentage of plaintiff win rates in removed cases, as opposed to a significantly higher percentage of plaintiff wins in cases adjudicated in state courts or those originally brought in federal courts).
91. Fullin v. Martin, 34 F. Supp. 2d 726, 735 (E.D. Wis. 1999). See id. at729–35 for a detailed discussion on the historical development of § 1441(c)and accompanying analysis, which led the court to the conclusion that removalof separate and independent claims that are not textually related to the federalissue is unconstitutional. The court stated that allowing a federal court to takejurisdiction over claims not textually related to the jurisdiction-conferringfederal claim would be inconsistent with article III, section 2. Id. To complywith article III, section 2, supplemental jurisdiction is only proper where theclaims satisfy the “common nucleus of operative fact” test for supplementaljurisdiction articulated by the Supreme Court in United Mine Workers ofAmerica v. Gibbs, 282 U.S. 715, 725 (1966). Fullin, 34 F. Supp. 2d. at 729–35; see also 28 U.S.C. § 1367. This conflict is addressed in more detail infraPart V.E. removal under § 1441(c) apply very different tests that lead toinconsistent results.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
Grounds for remandSection 1447 of the United States Code governs the proceduralrequirements for remanding a case to state court.265 A case may beremanded at any time for lack of subject-matter jurisdiction. Inaddition, remand is also appropriate where there has been a defect inthe removal process.266 While the court may unilaterally remand acase for lack of subject-matter jurisdiction, the plaintiff must be theparty to remand where the basis for remand is a defect in the removalprocedure.265. 28 U.S.C. § 1447 (2000).266. See Caterpillar v. Lewis, 519 U.S. 61, 76–77 (1996).267. See 28 U.S.C. § 1446(a). See supra Part V.F.1 for a more detaileddiscussion of the unanimity rule.268. See 28 U.S.C. § 1446(b). See supra Part V.F.2 for a more detaileddiscussion of the thirty-day rule.269. See 28 U.S.C. § 1446(b). See supra Part V.F.3.b for a more detaileddiscussion of the one-year rule.
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
THIRD PARTY DEFENDANTSFifth Circuit courts have afforded “third-partydefendants the opportunity of § 1441(c) removal to federal court,”when “they could have removed when sued alone” (if, for example,the original suit had been between the plaintiff and the third-partydefendant, as opposed to the original defendant).92 This tool is onlyavailable to true third-party defendants who are new to the suit, andis unavailable to an original plaintiff to the original claim, who onlybecomes a counter-defendant after an original defendant files acounterclaim against him.93 To allow ordinary counter-defendants toremove in this manner “would fly in the face of the well-pleadedcomplaint rule where the counter-defendants were the same partiesas the state court plaintiffs.”94 This application of § 1441(c) has beenvery rare and narrowly construed,95 and the other circuits that haveconsidered the issue disagree as to whether third-party defendantsmay seek removal under the statute.96
92. Texas v. Walker, 142 F.3d 813, 816 (5th Cir. 1998) (citing Carl HeckEng’rs v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir. 1980)),(allowing a third-party indemnity defendant to remove a case to federal courtpursuant to § 1441(c)); see also Jones v. Petty-Ray Geophysical Geosource,Inc., 954 F.2d 1061, 1066 (5th Cir. 1991) (indemnification claims based on aseparate contract are separate and independent).93. Walker, 142 F.3d at 816.94. Id.95. See United States v. Pate, No. CIV.A.7:01-CV-001164, 2002 WL47900, at *2 (W.D. Va. Jan. 12, 2002) (unpublished memorandum opinion)(declining to extend removal under § 1441(c) to counter-defendants whoalthough were not original plaintiffs, were substituted as plaintiffs sometimeduring the proceedings).96. Compare Walker, 142 F.3d at 816 (allowing a third-party indemnitydefendant to remove a case to federal court pursuant to § 1441(c)), and Jones,954 F.2d at 1066 (holding indemnification claims based on a separate contractare separate and independent), and Carl Heck, 622 F.2d at 136 (“If the thirdparty complaint states a separate and independent claim which if sued uponalone could have been brought properly in federal court, there should be no barto removal.”), with Lewis v. Windsor Door Co., 926 F.2d 729, 733 (8th Cir.1991) (finding that § 1441(c) was not intended to effect the removal of a suitwith introduction of a third-party claim), and Thomas v. Shelton, 740 F.2d478, 487–88 (7th Cir. 1984) (third-party defendants may not remove, andMonmouth-Ocean Collection Serv., Inc. v. Klor, 46 F. Supp. 2d 385, 394(D.N.J. 1999) (“[A]ny third-party claim for indemnification is not a claim‘separate and independent’ from the main action, and therefore is notremovable by the third-party defendant under § 1441.”), and Fullin v. Martin,34 F. Supp. 2d 726 (E.D. Wis. 1999) (not recognizing a right to removal under
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§ 1441(c) at all), and Fleet Bank-N.H. v. Engeleiter, 753 F. Supp. 417, 419(D.N.H. 1991) (holding that Congress intended only that original defendants beable to remove pursuant to § 1441(c)), and Sequoyah Feed & Supply Co. v.Robinson, 101 F. Supp. 680, 682 (W.D. Ark. 1951) (holding that under a“strict construction” of § 1441(c), third-party defendants may not remove tofederal court). For a related discussion dealing with how to interpret “joined”as applied to third-party claims, see First Nat’l Bank of Pulaski v. Curry, 301F.3d 456, 464–66 (6th Cir. 2002). The court adopted a narrow construction of“joined” to apply only to claims joined by the plaintiff in the original statecourt action, likely precluding all third-party claims from satisfying theseparate and independent requirement of § 1441(c).&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
Section 1367 is the statute that governs supplementaljurisdiction.116 Under this section, a district court may only takesupplemental jurisdiction over “claims that are so related to claims inthe action within such original jurisdiction that they form part of thesame case or controversy under Article III of the United StatesConstitution.”117 The standard courts use to determine if a claim ispart of the same case or controversy is whether the claims are part ofa “common nucleus of operative fact.”118 The common nucleus testcan be summarized as follows:In particular, “[t]he state and federal claims must derivefrom a common nucleus of operative fact.” Thus, “if,&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
WHEN SUMMONS WAS SERVED
where the court must decide whether the initial pleading or summons is sufficient to start the clock, and second, where the case involves multiple defendants served at different times. The third instance involves situations where the case becomes removable sometime after the initial pleading. a. initial pleading and summons Recently established parameters govern whether the pleading or summons is sufficient to start the thirty-day clock.140 In Murphy Bros. v. Michetti Pipe-Stringing, Inc., 141 the Supreme Court addressed the scope of the word “otherwise” in § 1446(b), which states that the defendant must file notice of removal thirty days after receiving the complaint “through service or otherwise.” 142 The Eleventh Circuit Court of Appeals had held that the plain meaning of “otherwise” required that the thirty-day clock be triggered when thedefendant received constructive notice of the complaint via a faxed “courtesy copy,” not when the defendant was formally served. 143 The Supreme Court reversed, holding that “mere receipt of the complaint unattended by any formal service” was insufficient to start the thirty-day period. 144
The Court also articulated a “road map” for courts to follow when determining at what point the thirty-day clock should start running. 145 First, where the summons and complaint are served
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Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
together, the clock starts running immediately. 146 Second, where the defendant first receives the summons, and then receives the complaint at a later date, the clock is triggered upon receipt of the complaint. 147 Third, where the defendant receives the summons and the plaintiff is not required to serve the defendant with the complaint, the clock will run when the complaint is made available through filing.148 Lastly, where the complaint is filed in court before any service, the clock will run upon the defendant’s receipt of the summons.14
140. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 353–54 (1999); Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001). 141. 526 U.S. 344 (1999).142. 28 U.S.C. 1446(b).143. Michetti Pipe Stringing v. Murphy Bros., 125 F.3d 1396, 1398 (11thCir. 1997), rev’d, 526 U.S. 344 (1999).144. Murphy, 526 U.S. at 347–48.145. Id. at 354 (citing Potter v. McCauley, 186 F. Supp. 146, 149 (D. Md.1960)).146. Id.147. Id.