[Pleading Title] - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES EASTERN DISTRICT COURT JP MORGAN : Plaintiff : # 05579-12 v. : Chester County T Patrick Murray : Civil Foreclosure Action Tanuja Singh Murray : Defendants/Appellants 12(b) MOTION EMERGENCY 12(b) MOTION TO DISMISS OR STAY SHERIFF SALE UNTIL AFTER APPEAL AND FEDERAL CLAIM ADJUDICATION Home is the American dream. It is the biggest purchase of our lives, and our lives are lived within this sacred space. Is there such thing as a lawful foreclosure? Yes, of course there is… but this is not one of them. As a former attorney with an MBA who practiced in two states and federally, I am SADDENED AND SHOCKED that we have to resort to these motions after months of clearly notifying all parties of the errors that led us here- not to mention the inexplicable and indefensible action by the trial court to take $119 from us as a fee for our timely filed Petition To Open with attached Answer and New Matter and then promptly… ignore it’s existence.
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IN THE UNITED STATES EASTERN DISTRICT COURT
JP MORGAN :
Plaintiff : # 05579-12
v. : Chester County
T Patrick Murray : Civil Foreclosure Action
Tanuja Singh Murray :
Defendants/Appellants 12(b) MOTION
EMERGENCY 12(b) MOTION TO DISMISS OR STAY SHERIFF SALE
UNTIL AFTER APPEAL AND FEDERAL CLAIM ADJUDICATION
Home is the American dream. It is the biggest purchase of our lives, and our lives are
lived within this sacred space. Is there such thing as a lawful foreclosure?
Yes, of course there is… but this is not one of them. As a former attorney with an
MBA who practiced in two states and federally, I am SADDENED AND
SHOCKED that we have to resort to these motions after months of clearly notifying
all parties of the errors that led us here- not to mention the inexplicable and
indefensible action by the trial court to take $119 from us as a fee for our timely filed
Petition To Open with attached Answer and New Matter and then promptly…
ignore it’s existence.
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But there is something more simple and elegant that should stop this madness-
proof of the truth… evidence of owner identity, and confirmation of fraud and lies by
both Chase and Phelan Law Firm, who continue their RICO crimes unchecked by
any court we are aware of.
NEW EVIDENCE: THE MORTGAGE IS VOID
In the Batipps case, it is concluded that the proper reading of §444 is that it
provides that an improperly acknowledged mortgage is “per se fraudulent.”
For the last 5 years, through 3 different lawsuits arising from alleged default,
Chase has averred and sworn under oath that it holds the Note and Mortgage of
$600k executed on 10/15/04 and that there was and is no assignments or other title
chain complexities. Days ago, we discovered what we knew was true- Chase and
Phelan conspired to lie to us and to this Court- to all Courts, in fact.
See Exhibit A. It speaks for itself. The Note (as well as the mortgage as per
exhibit) were ASSIGNED not TO CHASE but FROM CHASE to Wilmington
Trust as trustee for Structured Assets Trust (SASCO-4XS) and therefore, quite and
elegantly simply, Chase is proven to have no standing, Chase is proven to have
committed fraud, Chase is proven to have perjured themselves and Phelan was the
collusive co-conspirator executing all of this criminal strategy.
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DISCUSSION
The Standard for Dismissal Under Fed. R.C.P. 12(b)(6)
The dismissal of a complaint for reasons of fraud or factual insufficiency is
explained by Fed. R.C.P. 12(b)(6) (“Rule 12(b)(6)”) as all civil complaints “must set
out sufficient factual matter to show that the claim is facially plausible” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
In deciding a Rule 12(b)(6) motion, a court must accept as true all factual
allegations contained in the complaint and construe all reasonable inferences drawn
therefrom in the light most favorable to the plaintiff- unless proof is uncovered that
evidences those presumed truthful averments as fraud and lies.
As explained by the Supreme Court: “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.”
A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. In short, proof is in the pudding- and until now, we only knew that
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Chase was not the holder in due course, but an audit revealed the foundation of their
false claim and fraud upon the court.
Where a complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of ‘entitlement
to relief.’”Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556-57 (2007).
Applying the standard enunciated by Iqbal, the Third Circuit in Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) explained that courts should
conduct a two-part analysis to determine whether a claim survives the Rule 12(b)(6)
motion.
First, a court must distinguish between the factual and legal elements of the
claim. Second, a court must determine whether based upon the facts alleged the
plaintiff has a plausible claim for relief.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft, 129 S.Ct. at 1949.
A court may not accept as true “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” Fowler, 578 F.3d at 210 quoting
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
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Until now, all we had was a he said we said Mexican stand-off… now we have a
smoking gun and Chase has it’s fingerprints all over it.
NO DUE PROCESS BEFORE DEPRIVATION OF PROPERTY
The Due Process clauses of the 5th and 14thAmendments to The Constitution
of the United States provide a guarantee of procedural due process before property is
taken, and that minimum due process must be maintained and enforced by the
courts- the branch of the government with the power to decide these “civil capital
punishment” cases of foreclosure, which is the most significant deprivation of life,
liberty or property one may ever endure or is ever likely to traumatically occur.
As the court is obligated to provide procedural due process in this matter, we
demand a hearing as to our Petition To Open Judgment improperly entered by
Chase, as well as in reference to their Motion To Recalculate Damages which ignores
both Petition to Open/Strike/Set Aside and Notice of Appeal as well.
As procedural due process consists of 1) Notice; and 2) Opportunity to be
heard, we heretofore have not enjoyed one minute of on the record hearings in this
very important matter whereby a plaintiff is fraudulently attempting to steal our home
without standing to do so, and to date, been enabled (innocently perhaps) by the
system of the courts which has not protected our rights.
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We asked for a hearing and were ignored- and never even saw the face of the
judge in this case. There are only pleadings as a record, and despite the right to
judicial process in foreclosure in PA and our responsive pleadings filed LAST YEAR
(not to mention the answer and 500 pages of other pleadings we filed in the previous
action regarding the identical cause of action) that should have not allowed the filing
of a default praecipe, as we have not had “our day in court”.
By refusing to provide us with a hearing on the Petition to Open timely filed,
as well as compliance with your May 28th order citing statement of errors timely
mailed, we have been deprived of our right to procedural due process and thereby
estopped any process from lawfully proceeding to the “Opportunity to be Heard”?
The Fourteenth Amendment provides that no state shall deprive any person of
life, liberty, or property without due process of law. U.S. Const. amend. XIV
PROCEDURAL HISTORY
In 2004 we bought a home for 750k, putting up 150k in cash. Only one of us
signed the Note and both signed the Mortgage, which was not countersigned. At the
time, we thought by fraudulent inducement that we were in fact being lent real
money- cash of the bank called Chase.
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We deposited nearly 20k in the initial escrow account, and while we paid over
four grand a month faithfully, a recent pleading by Plaintiff/Chase cites figures that
are so wrong it should be a crime, literally. See Exhibit W (W for wrong).
We made EVERY payment of over $4000 a month for 60 months straight
until the crash of 2008 saw the loss of employment and income for both of us.
In 2007, 2008 and 2012 J.P. Morgan initiated Foreclosure Action in Chester
County Court regarding alleged default by Defendants.
In the Foreclosure Action, J.P. Morgan sought to foreclose on the Mortgage.
The Mortgage secured a note executed August 11, 2005 in the amount of $1,462,500
(the “Note”). Both the Note and Mortgage were originally executed in favor of Chase
Home Finance LLC- and through three foreclosure lawsuits, no assignment was
recorded nor averred nor mentioned nor admitted to.
Why? Because the truth is the enemy of the criminal, and Chase is the mafia of
Manhattan, the Feudal Lord of the Federal Reserve… they are Butch Cassidy and the
Sundance Kid without the looks, charm and panache.
Faulty Default and the Non Event- No Proceedings Before The Court
In order to comply with Pa.R.C.P. every complaint in mortgage foreclosure
shall contain proof of standing- as recently the Superior Court decided in my brother’s
case (Chase v. Francis X Murray) so ruled and reversed judgment.
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Rule 237.5 for the form of notice of intention to enter a judgment by default:
(b) This rule does not apply to a judgment entered
(1) By an order of court,
(2) Upon praecipe pursuant to an order of court, or
(3) Pursuant to a rule to show cause.
Official Note
Rule 3284 requires that in proceedings to fix fair market value of real property
sold, notice must be given pursuant to the requirements of Rule 237.1 et seq
ABUSE OF DISCRETION by CHASE, PHELAN and INNOCENT
ERRORS BY PROTHONTARY AND INACTION BY COURT
There is nothing of record to establish justification for the procedural error of
ignoring our petition to open, or our request that the court simply “correct error” and
remand for trial as we had received a trial date listing! All of this should support the
reversal of judgment and granting of our timely filed petition to open with answer and
counter claims new matter.
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“A petition to open a default judgment is an appeal to the equitable powers of
the court, and absent an error of law or a clear, manifest abuse of discretion, its
decision thereon will not be disturbed on appeal.” Kelly v. Siuma, 34 A.3d 86, 91
But the foreclosure complaint (and the default judgment) included fees of
$5,000 that had only been alleged to be “reasonable” without any documentation.
Any lender (or debt collector) under a note much less a mortgage without a
Note and clearly under Pennsylvania law is not authorized to unilaterally determine
the reasonableness of its own fees. LIPA, 503. Only a court, not the plaintiff acting
sua sponte, can determine what foreclosure fees are “reasonable.”
Pennsylvania law prohibits pre-foreclosure filing attorney fees in excess of $50,
LIPA, 406(3)(e). Therefore Pennsylvania law limits fees to only those fees that are
“reasonable and actually incurred by the lender.” LIPA, 406(2).
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Here, no pleading regarding the alleged $5,000 as a “reasonable” fee was
incurred or already paid by the lender or trustee to its foreclosure counsel for this
foreclosure proceeding was filed, or if filed, it was withdrawn… nor was there any
pleading that would support the reasonableness of those fees.
Other Unauthorized, Undocumented AND Inaccurate Charges
As set forth in our Verified Answer and New Matter it is believed and therefore
averred that there were a number of other unauthorized, undocumented charges, both
in our unpaid principal balance account and in escrow account. The charges, in part,
are highlighted by our specific exhibit of the closing document (Exhibit Z) of the
escrow we funded, and in our answer and New Matter, which are incorporated herein.
Moreover, it is believed and therefore averred that (1) the prerequisites to the
imposition of certain of those charges required advance notice which was not provided
and (2) some of our payments were misapplied misallocated, including payments that
were placed in non-interest bearing so-called “suspense” or “unapplied balance”
accounts.
These defenses are also set forth in our Verified Answer and are incorporated
herein.
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FAILURE TO PROSECUTE IN GOOD FAITH
Remember- Chase filed the complaint in June of 2012 and then disappeared-
they stalled and waited until the right moment and without sending us a 10 day
notice, obtained by guile their faulty default judgment no pun intended.
We filed a timely notice of appeal despite the Petition to Open pending, as we
frankly anticipated the reality of the lack of due process- the judge should have
addressed this petition in April but now it is July and still- nothing. We provided to
the trial court the ordered itemization of errors and mistakes both in a memo and in a
motion that was filed but rendered moot as the prothonotary stated (in the docket-
they gave us no notice of this) that the pleadings were unsigned- so we are unsure if
the Judge saw them- there is a double standard epidemic against pro se litigants, and
this comes from a former licensed attorney in three jurisdictions. We have paid all fees
and we have filed a Motion to Stay Sheriff Sale in May with Chester County- but like
the Petition, it has been ignored. According to the docket, a default judgment was
entered that day. We seek to open that judgment in order and we know that, if our
Petition had NOT been ignored, we would only be entitled to relief if we indeed show
that (1) our petition had been promptly filed, (2) their failure to act before the default
judgment was entered can be excused, and (3) they have a meritorious objection. See
Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984).
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The petitions to open were filed 4/28/13 ten days following entry of the bogus
judgment. Any court should, in a microsecond, find the petition to be timely.
Ironically, Chase’s silence regarding their failure to respond to our Motion to
Dismiss, our Motion For Sanctions, our Motion To Correct Errors, our Motion to
Strike Judgment and last but not least the vast averments of our Counter-Claims prior
to entry of the default judgment makes little legal strategic logic.
Prior to the default, we had actively participated in the litigation by way of the
slew of UNCONTESTED MOTIONS filed in JULY of 2012 and not determined
until FOUR MONTHS LATER and then it was mailed to the wrong address in the
docket. That is central to why we did not produce an Answer- coupled with the
SHENKIN ORDER of 9/12 that rendered all pleadings relating to this cause of
action MOOT and the bad luck of not being mailed order nor the trial listing
reminder (sent to Malvern address). How can Chester County court system allow this
to happen? We know what we are doing and we can still not stop this runaway train.
How can the prothonotary deny us default judgment yet enter Chase’s default without
a) the attached notice and b) without any accounting of nearly million dollars they
seek and then disregard our default judgment praecipe filed by us properly structured
with notice attachments and without seeking a sum specific as valid where a party,
served, fails to answer or defend a suit filed against them?
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We ask the Court to recognize the pattern here, and ask themselves:
1) Why the double standard?
2) Why was Petition to Open… ignored? We paid $119 and it was cashed…
3) Why did the judge address the later filed Notice to Appeal (which we filed as insurance as we feared the injustice that occurred- the Judge would ignore it!)
We aver the trial court abused its discretion. The April 17th 2013 judgment was
fatally defective, and the subsequent Writ was obtained before 10 days had elapsed- in
effect, denying us the window for Petition to Open which we filed timely- exactly 10
days after the default judgment was improperly entered.
As our petition was timely and contained the requisite showing that Appellants
had a meritorious defense to the underlying action and a reasonable explanation for
their failure to file a responsive pleading.
We therefore ask the Court to reverse the trial court’s order- excuse us- there is
NO ORDER- we mean the judgment- a void judgment “stamped” with the signature
of the prothonotary on the default judgment- and address the Court’s unexplained
negligence in NOT DENYING NOR GRANTING Appellants’ petition to strike or
open the default judgment.
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We moved for a default judgment on its CounterClaims against Chase for
failure to file an Answer thereto- and despite the ATTACHMENT OF 10 DAY
NOTICE and NO REQUEST FOR SUM SPECIFIC MONETARY DAMAGES as
only a court hearing can make such a calculation and determination- our praecipe was
ignored by prothonary last week and NOT EVEN ENTERED as improper or
defective- it was just tossed in the trash.
The next day we sent a check for the appeal to them- and they certainly
acknowledged and cashed that fee payment in the docket. Why?
Why did they sign defective default judgment for Chase without notice
attached and with unsupported damage amounts unverified and unaccounted for in
the high six figures, which is illegal and improper as per PA law?
SERVICE ERRORS
Since we must articulate all errors and mistakes, it needs to be noted that Chase
served the notice of sheriff sale to a non relative who is mentally disabled. According
to Exhibit E, this service was performed at the incorrect Malvern address first, then
the correct one. However, this is not proper service, as a mentally disabled non-
relative we voluntarily care for is not a competent adult by legal standards and did not
inform us of the service, as he is clueless.
FEDERAL DEBT COLLECTION ACT VIOLATIONS
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In violation of FDRCPA, Chase and Phelan sent to us a FAKE COURT
NOTICE as evidenced by exhibit F (F for fake) which at first glance is clearly
constructed to appear as an official court communiqué, just to intimidate and scare
defendants.
This is not only another example of the dozens of frauds throughout this case-
it violates the Least Sophisticated Debtor rule by confusing the Defendant.
Worse, it is fraudulent in content.
The notice sent with the default judgment but BEFORE any writ was
obtained, tells us that OUR HOUSE IS ALREADY SCHEDULED FOR
SHERIFF’S SALE ON 8/15/13.
Repeat- before waiting to see if we filed a Petition to Open and before getting a
proper Writ of Execution, heck- before going to the Sheriff to approve it all- they just
play God and say that the sale is happening- in fact, on page two, it states that the
property was “seized”- not “going to be seized” but the past tense suggesting to even
an imbecile that the conveyance has already occurred (in direct contradiction of both
reality and the boilerplate notice on page one advising us that we have rights and we
can do this or that to stop the sale).
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CONCLUSION
On April 17th 2013, the Defendants filed a praecipe for default judgment- yet
they PAID THE FEE 3 days prior, before it was granted. Why? It’s a sure thing when
you are part of the system, sadly…We contend that J.P. Morgan’s mortgage on the
Property should be invalidated because, among other things, they ASSIGNED IT TO
A TRUST IN 2005 and NEVER GOT IT BACK- and therefore quad erat
demonstratum, this case must be dismissed at most, opened at least and the sale must
be stayed. If we do not obtain a stay or TRO, we will be forced to stop the sale by
filing bankruptcy, which will deepen the damage done to us by the private and public
parties involved. Certainly, the Federal lawsuit for wrongful foreclosure and fraud we
are filing will be augmented by any involuntary bankruptcy filing, and we will seek
remedy for this wrongful sale if it proceeds without the allowance of due process and
our DAY IN COURT.
WHEREFORE, for reasons stated above and in our Verified Answer and counter
claims, as well as numerous motions, it is respectfully requested that this Honorable
Court strike and/or open the default judgment (for the reasons stated above and
including the fact that it is void by failure to attach 10 day notice and computation of
damages without the Court), the new evidence discovered proving that this entire case
is based upon lies and Chase sold the Note and assigned the mortgage in 2005.
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Also, we seek the Court to allow us to obtain the default judgment ignored and denied
by prothonotary (Exhibit D) by Chase’s failure to answer the new matter counter
claims in our attached Verified Answer and New Matter attached to the Petition to
Open we filed timely within 10 days of default judgment entry.
Also, we ask the Court to declare the mortgage and any other claims or rights claimed
by J.P. Morgan under the mortgage against the Plaintiffs, including any “equitable
liens” invalid as per the newly discovered evidence of the assignment in 2005 FROM
Chase to SASCO 4XS;(2) enjoin the original third foreclosure action 05579-12 as it is
barred by collateral estoppel and based solely on the validity of the note and mortgage
Chase and Phelan conspired for 5 years to conceal the true holder of and assignment
to;(3) declare that J.P. Morgan may have committed fraud and this request for
sanctions against them and Phelan required a hearing and finally that Chase has no
valid claim in this case and should be dismissed with prejudice and award us
reasonable attorney’s fees and costs for defending the invalid action 3 times over FIVE
YEARS all for what is a fraudulent (and frivolous) legal action that reflects a federal
racketeering enterprise of a lily white collar nature or, in not, at least (4) grant a TRO
or stay of sheriff sale pending the appeal and adjudication of our Federal lawsuit (5)
provide any other relief which this Court may deem necessary.
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Chase and Phelan deserve sanctions and a check and balance for this egregious and
continually unchecked abuse of discretion and fraud upon the courts.
We have filed this Injunction Motion in an EMERGENCY BASIS because of
the time restraints and the newly discovered evidence. We have hereby requested that
the Court consider the matter on an expedited basis.
Chase’s Complaint failed to comply with the pleading requirements set forth by
the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and contained only vague conclusive
statements. Most believe that remedy of any nature is barred by the Rooker-Feldman
doctrine that precludes the Court from reviewing and/or overturning the state court
judgments. But that is not applicable here- because the Court MADE NO
JUDGMENTS! The Court ignored Petition and other Motions, and denied the
existence of our counter claims when the default judgment we sought last week was
ignored by Prothonotary. Therefore, as the trial court LITERALLY failed us by
omission and inaction or intentional negligence or innocent incompetence, we seek
not only the appeal of the non judicial default judgment but for this court to DO
THE RIGHT THING- which is not siding with us on the merits of our
defense/counter claims- but opening the judgment or issuing a stay pending the
adjudication of due process in all forums and jurisdictions for this issue.
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But we realize that Federal courts are very cautious about this issue- and may
think they must exercise abstention given that the validity of the Mortgage is the
subject in the State Court that has demonstrated an inexplicable inconsistency in
attending to his responsibility for objective determination of legal questions that CAN
DESTROY LIVES if mishandled not unlike a criminal capital case. This court should
impose a stay and have case remanded by another judge in the county- although we
are filing a RICO/fraud federal lawsuit as well.
As Chase has sued us three times for the exact issue we aver it is precluded by
the doctrine of collateral estoppal and res juditca as it has had the opportunity to
already have been fully litigated by the parties for more than five years.
By this appeal and motion for stay as well as the counterclaims we aver are valid
and not dead on arrival, this case continues to be litigated, and as per the NEW
EVIDENCE it clearly involves several other defendants relating to the SASCO trust
and none of whom are parties to the present action and do not appear to be subject to
this Court’s jurisdiction.
Finally, we would have the opportunity to seek to be released from the
Mortgage as the assignment not only released grantors (Chase and us) from the benefit
of the mortgage and note, but also the responsibility.
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As the validity of the Mortgage assignment is undisputed and FILED BY
PLAINTIFF in order to cover their… assets… they did so without fanfare, or any
constructive notice to us or the Court. They did it to rewrite history, we theorize, as
we informed them that this case was larger than a typical foreclosure, as an award
winning documentary filmmaker is making a film about this particular case as well as
the case involving my brother and parents- a foreclosure action against my relatives by
none other than CHASE presided over by none other than Judge Griffith. With
improbabilities like that, we should play Mega Millions.
J.P. Morgan has NOT been determined to be the holder in due course and thus
standing. Had Chase evidenced some ownership of the Note, this Court would
indeed be prohibited from reviewing a decision by a state court, but as we cited, this
appeal is anomalous as it seeks the action of the Federal court because the trial court
has evidenced patterned abuse of discretion and bad faith whether innocent or
intentional. We hope this Court refuses to tolerate Chas and Phelan’s successful
manipulation of the court and their attempt to use the back door to steal a home
whose loan we today have proven they DO NOT OWN.
We ask the Court specifically to examine the collusive attempt by Chase and
Phelan to strategically re-litigate matters that could have been decided in 2010.
[Pleading Title] - 43
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We are simply attempting to stop a sheriff’s sale based on an illegal default
judgment entered by a crooked law firm working for the largest bank in America who
did not hold mortgage nor own the note at the inception of this case or the TWO that
preceded it, and committed again and again and again fraud upon this and other
Courts.
Please be the Court that STOPS THIS RACKETEERING FRAUD- as we not
only seek justice for us, but all those victimized in the past, present and future.