Wednesday, August 17, 2016

August 17, 2016 Court wants more paper !

From August 17, 2016

This is the Informal Opening Brief that the court ordered parties to send  25 copies of my opening brief, Chase/Ocwen was ordered to do the same. The court received them today and published that fact on Pacer. (US judicial system database. 


 9th Circuit Case Number   11-60039

Originating Case Number BAP 11-1208

Appellant and Debtor GARY LAWRENCE OZENNE
Appellees CHASE MANHATTAN BANK et. al.

1.       Jurisdiction

          a.       Timeliness of Appeal:

                    (i)      Date of entry of judgment or order
                              of originating court:  May 20, 2011

         (ii)     Date of service of any motion made after judgment (other than fees)   None

                    (iii)    Date of entry of order deciding motion: ________________

                    (iv)    Date notice of appeal filed: _______June 20, 2011___

(v)              For prisoners, date you gave notice of appeal

 9th Cir. Case No.  11-60039                                                                                

2.         What are the facts of your case?

The service agent violated bankruptcy law and that violation prevented me from obtaining a new loan after my case was dismissed.

While protected by a bankruptcy stay, the banks service agent violated 11 USC 362(a) by issuing a deed to O’Neal at a foreclosure sale. Sixteen months later this deed prevented me from obtaining a new loan after the bank successfully argued to have my bankruptcy case dismissed for bad faith. After the case was dismissed, instead of resolving the title issue, which prevented my approved refinance, the bank held another sale, and two days after that new buyer gained possession in state court, the bank recorded a rescission of the O’Neal deed with the Riverside County Recorder.

I have sought a hearing on this violation of law since the President’s Day 2003 eviction from my home of twenty-six years. My home based business, Residential Fire Sprinklers, operated from my home since 1991, failed shortly after my eviction.  At a February 24, 2003 hearing the bankruptcy court recognizes  the violation of law,  but continues the hearing for 10 days and then declines to accept jurisdiction and dismisses  the case with prejudice!  After almost a decade of attempting to to tell my story through the appeals process, the effort is now focused on the Bankruptcy Appellant Panel’s denial of my request for mandamus relief, to enforce the law as determined by 9th Cir BAP published opinion   In re Nathan Johnson  9th Cir BAP July 7, 2006which determined the bankruptcy court must hear violations of 11 USC 362, when asked to do so. Even after the dismissal of the main case. 

On May 29, 2001 Carol and Steven O’Neal recorded a deed to my house at 861 W. Crestview St. Corona CA. The deed was issued in violation of bankruptcy  law at a foreclosure sale held by the loan service agent, Ocwen Federal Bank F.S.B, on May 17, 2001, the same day I filed for bankruptcy protection 01-18618. I took the bankruptcy petitions to the sale and showed the auctioneer, faxed a copy to the trustee, and later when the O’Neal’s started eviction proceedings I urged them to contact the court, or their attorney. Nothing happened, however, until my attorney, Clay Presley, returned from vacation, made some phone calls, then all the actions stopped. 
This was my 5th chapter 13 bankruptcy attempt to save my startup company, Residential Fire Sprinklers, since l left a 20 plus year career in the computer and software business. The first time, to save money, I filed a pro-se Chapter 7 petition, but when I learned that house payment arrearages could be included in a Chapter 13 plan, I hired an attorney, who accepted a $900 computer system as payment,  to convert my case to a chapter 13. Unknown delays prevented him from converting the case before the Chapter 7 case was discharged. We then filed a new Chapter 13 case.  Later, I hired a local attorney, Clay Presley to represent me in the bankruptcy court.   
In early 1998, I received a post card from Ameriquest[1], who after several telephone conversations, ultimately offered me a loan of $124,000 at 10.5% fixed, for 30 years, with no prepayment penalty; I accepted their offer and petitioned the court to dismiss my bankruptcy case so that I could engineer my own reorganization. This new loan would pay off my current loan, and provide me with a few thousand dollars to prepare for a national recall of 8.5 million fire sprinklers, announced by the Consumer Product Safety Commission.  When the loan was finally made in April of 1998, its terms changed to a lesser amount of $116,250, it provided no money out, a variable rate starting at 14.5%, and could climb to 20.5%, but never lower than 14.5%, it also contained a 6% pre-payment penalty clause.
With new payments almost double from my previous payment, it was not long before I needed bankruptcy protection again. In the summer of 2000 the court dismissed my then current case, because I had not met the plan payments, and the case was dismissed.  I called Ocwen a bit later and informed them I had recently received sufficient funds through my business to cure my arrearages. Ernest Santiago, the customer service representative for Ocwen informed me he could not accept any payments from me until after he had received notice from the bankruptcy court, that my bankruptcy case had indeed been dismissed. 
Then, in the first week of October 2000, a strange man, knocked at my door, asking if I knew my home was being sold, right then, down at the Corona Civic Center. I called Ocwen, and the next day, I was told that no one had met the minimum bid, and now the bank owned my property and if I wired all the arrearages and fees, $20,000 plus, an exact figure would be faxed, by close of business, Friday October 13, 2000,  they would rescind the sale, and the home would be mine again. On Friday I wired $22,823.66 to Ocwen in Fort Lee New Jersey, and shortly after Ocwen recorded a rescission of the trustee’s deed.

In December of 2000, I discovered a simple addition error made on the faxed Ocwen Reinstatement Quote. The error was in the banks favor for $3,841.25. I called the bank and was told, they would “look into it”. Instead, in late January 2001, I received a notice of default, beginning a foreclosure action. The notice of default listed arrearages in the amount of $10,539.69! 
I attempted to rescind the loan under 15 USC 1635, based on the failure of Ameriquest, the loan originator, to provide me with documents required for a variable rate loan. I mailed, with postal receipt, the TILA based rescission to Ocwen on the last day to do so, April 24, 2001, tendering an offer of about $67,700 - the difference between the original loan amount of $116,250, minus the sum of my first 35 monthly payments totaling about $48,550 -    Ocwen received, but ignored, the rescission letter and scheduled a sale date for May 17, 2001.   When I contacted Ocwen service representative, Diane Reilly, she confirmed they had received my rescission, but intended to continue with the sale, now, just days off. I next learned that my attorney, Clay Presley, was on vacation and not expected to return until the first week in June, so with time running out, I copied the petitions from our last Chapter 13 case, and rushed them to court on the morning of May 17, 2001. I then took the petitions to the sale and presented them to the auctioneer, then faxed them to the trustee in Santa Ana.
A week later I was served an eviction lawsuit, by Carol O’Neal, and when I spoke to Carol O’Neal, I informed her I was protected by a bankruptcy stay and urged her to contact the bankruptcy court, or her attorney.  In early June Clay Presley returned from vacation, and made some phone calls, and the eviction stopped. The trustee also asserted, in a letter to me, that he was “unaware” of the stay. Presley then signed on as the attorney of record and in July, for the first time in all previous filings, the Chapter 13 plan was confirmed in case 01-18618.
Presley was not interested, nor seemed to understand my TILA claim and was unwilling to pursue my ignored TILA rescission and suggested I find another attorney for that matter. I retained Louis Bruno, from Escondido, who was familiar with TILA rescissions and believed he could help me. He was not versed, he warned, with bankruptcy matters. He appeared at the December 5, 2001hearing on the banks motion to lift the automatic stay with Clay Presley, and was told that he would need to file an adversary complaint. Meanwhile, an erroneous IRS claim was filed which sunk the Chapter 13 plan. Case 01-18618 was dismissed on a motion by the Chapter 13 trustee. 

Presley suggested I resolve my IRS issues, then he would file a new case, and Bruno could file his adversary proceeding to enforce the TILA rescission. Several weeks’ later bankruptcy case 02-14014 was filed. And Bruno filed adversary case 02-1197.
At the  May 22, 2002 confirmation hearing, Chase Manhattan and Ocwen read my recession letter and argued that my multiple bankruptcy filings and the TILA $67,000 tender on their $116,250 loan, which had by this time ballooned to about $137,000, was in “bad faith” and my case should be dismissed. The court agreed and dismissed the case under the doctrine of judicial estoppel, since my copy of the previous petition listed my home as secured by the note, and I should have  listed it as unsecured, since I had rescinded the loan. For an additional $500.00 Presley argued on June 5, 2002  for the court to reconsider, but that failed as well, and the court instead issued a memorandum of decision. 

Out of bankruptcy, and after Indy Mac had appraised the property, I was approved for a new loan but during the final title search, it was discovered that title still resided to Carol and Steven O’Neal, which prevented the bank from making the loan. Attorney Bruno attempted to obtain a temporary restraining order, but I could not raise the required undertaking of $20,000.00 

On July 31, 2002, Ocwen held another sale and issued another deed to real estate investor, Vista Homes, which was recorded with the Riverside County recorder on August 14, 2002.  I recorded a notice of pending action with the county recorder. Vista Homes started eviction proceedings. 

On September 24, 2002, Vista Homes gained possession in their state court eviction lawsuit. Notably, two days later on  September 26, 2002, the bank recorded a rescission of the O’Neal deed. 

On November 21, 2002  I motioned the court to set aside my dismissal so that I could pursue my stay violation claim. It was denied.

On December 3, 2002 I requested TRO with the U.S. District Court but it was denied.

A week later I suffered a stroke, which paralyzed my left side and put me into the Corona Regional Medical Center for about eleven days.  While in the hospital Bruno represented me in the bankruptcy court.

As my eviction loomed closer I filed a motion to reopen my case on February 13, 2003, as well as a  declaration with and an order to shorten time for the hearing, the bankruptcy court returned it, suggesting I needed to  set aside the dismissal of my case first. 
On Presidents Day weekend, February 17, 2003, friends helped me move all of my property, business and personal  into two units at Dollar Self Storage in Corona.  
On February 24, 2003 the court held a hearing to determine if it should retake jurisdiction, but continued the hearing for ten days toMarch 6, 2003,  where, at the urging of former Chase / Ocwen attorney, Diane Weifenbach, the court dismissed the case with prejudice.

I appealed the decision to the BAP and the bank removed the appeal to the district court.
 Meanwhile, in June of 2002 Attorney Bruno filed a state action on TILA and other causes of action, in which the court sustained the banks demurrers and the 4th Appellate concurred.

By May of 2003, I was living in motels, and when Vista Homes asked the state court to lift the notice of pending action, to clean up the title, I countered with an argument that challenged the title of Vista, from a state law perspective and requested summary judgment. It was not successful.  
After the March 2003 dismissal with prejudice from the bankruptcy court, I appealed to the Bankruptcy Appellant Panel but the matter was removed by the creditor banks to the United States District Court, and I filed a brief and reply  brief, but  it was dismissed in early August 2003. An appeal to this court was made in September of 2003, 03-56569
In early 2004, I wrote to Governor Arnold Schwarzenegger’s office, who contacted the Office of Thrift Supervision on my behalfwho in turn contacted Ocwen. In their four page reply, Ocwen suggests that it rescinded the O’Neal deed, which was not true.  
In June 2005 my appeal, 03-56569, was denied, as was my petition for reconsideration / rehearing made in July. An appeal was made to the United States Supreme Court, but it was denied certiorari. 
Then, on January 17, 2006 the Bankruptcy Appellant Panel, reversed the bankruptcy court in a Chapter 7 case filed in the summer of 2004, 04-18301, to stop the storage operator from selling the  contents of my home and all of my business assets stored at that Corona facility since my eviction. In spite of my bankruptcy protection, the storage operator sold my property at auction. I motioned the court for sanctions. The court denied the motion and I appealed to the BAP who reversed the court and published the decision.Ozenne v. Dollar Storage 9th Cir BAP January 17, 2006. 
Based on that decision I petitioned the United States Supreme Court for a rehearing, which was denied on April 17, 2006. Not realizing that 362 violations had no time limits, one year later I motioned the bankruptcy court under rule 60 of the Federal Rules of Civil Procedure, for a hearing, reasoning that it was “not over one year” since the Supreme Court had denied my petition, if the appeals process equitably tolled the one year time constraint. The court again denied the motion citing that the court had no jurisdiction.   
An appeal to the BAP was again removed to the District Court, who also denied the appeal. An appeal was made to this court in late 2008. 08-56599.

Since my eviction I lived at various rented rooms and weekly and monthly motels. In August of 2008 my older brother Dennis, passed away suddenly, and when I returned from a FEMA deployment for PaRR in late October 2008 I moved into my brothers’ room at my nephew’s house, and shortly after was contacted by author Michael W. Hudson, from New York, who was writing a book which later became  “The Monster – How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America – And Spawned a Global Crisis”  was published in 2010, by Times Books and in December 2010, an excerpt of that book was published on the web .   
Growing impatient, in February 2009, I filed a petition for a writ of Mandamus  and a personal declaration in this court, not wanting to wait another year before a decision, 09-70558, which was denied, in May 2009, citing I could find relief in my appeal. 

In March 2009, this court ordered the payment of filing fees in order to proceed with my appeal, 08-56599. I borrowed the money and paid the filing fee on March 31, 2009. I had mailed my Appellants Opening Brief, on March 10, 2009, but on March 13, 2009, briefing was suspended, and I responded to an order to show cause and the case was dismissed. I asked for reconsideration  which was denied.  
I became increasingly despondent believing my chances on appeal to the Supreme Court to consider my case were remote, at best. Unable to shake off the increasingly dark and desperate thoughts and feelings, I asked for, and received, mental health help and treatment from the Riverside County mental health department under the care of Dr. Ellison Chang.

 I also learned that Judge Jury was now a Justice on the 9th Circuit BAP and wrote a letter to the Justice at the BAP in Pasadena to seek support for my petition for review with the United States Supreme Court. The bankruptcy courtroom deputy returned the letterinforming me this was improper, adding that if I had a matter for the court, I should file the proper pleadings in the the bankruptcy court. .

On November 13, 2009, I filed a motion for sanctions with the court, and waited, thinking I would be notified of a hearing. A few months later, I filed a personal declaration with the court, and later a request for Judicial Notice.  Nothing happened. Then in December 2010, I contacted the court deputy, who suggested I read the local rules. Next, I obtained a date for a hearing, February 14, 2011, from that deputy and filed a Notice of Hearing with Points and Authorities on January 21, 2011.
On February 14, 2011, I arrived at the court early, and looked up my case on the terminal in the clerks’ office to learn that the case had been dismissed on January 27, 2011, and since it was already past the deadline to appeal, I filed a notice of my failure to receive notice of the dismissal, and began to work on a petition for mandamus with the Bankruptcy Appellant Panel, believing prerequisite points required for mandamus relief were now evident. 
I filed a petition for a writ of mandamus with the Bankruptcy Appellant Panel on May 2, 2011, which was rejected on May 20th 2011, and the subject of this appeal. 

3.       What did you ask the originating court to do (for example, award damages, give injunctive relief, etc.) ?
To hold a trial or hearing to enforce USC 362(k), formerly 362(h), to determine the damages caused by this violation of bankruptcy law.  The court has consistently ruled that it did not have jurisdiction.  2003, 2007,  2011  

4.       State the claim or claims you raised at the originating court.
Violation of 11 USC 362(a). 
5.      What issues are you raising on appeal? What do you think the originating court did wrong?

The Bankruptcy Court did not conform to precedential 9th Circuit law, when it denied jurisdiction to hear this violation of bankruptcy law. See Order. The BAP abused its discretion when it declined to use its power of mandamus to enforce binding precedential law. 

The bankruptcy court has been inconsistent in applying the law to this debtor. In November of 2002 after the bank rescinded the O’Neal deed, I alerted the court in my November 21, 2002 motion  to set aside the dismissal of my case to hear these violations of law. The court refused to hear my plea, but then in the week after the February 17, 2003 eviction, the court held a hearing, and acknowledged that this was a violation of the automatic stay, but then, inexplicably dismissed the case ten days later.  A year later in 2004 the court declined to award sanctions after Dollar Storage sold all of my business and personal property in violation of a bankruptcy stay, although this was reversed by the BAP in 2006.  All of the subsequent appeals and legal effort have been in pursuit of bringing these law violators into a court of law to face justice.  Each time, the bankruptcy court has refused to accept  jurisdiction to adjudicate these violations of law. 

At the February 24, 2003 the court shows a full appreciation of the facts in the case. See Page 59 line 15,  but struggles with the issue of jurisdiction Page 70 line 1. Ultimately, the court does not accept jurisdiction to allow this debtor a legal forum to make his claim that a creditors federal violation of law cost this debtor his home of 26 years, and his home based business, Residential Fire Sprinklers, operated there since leaving Microsoft in 1991.

It is not clear why the bankruptcy court abruptly changed its focus from the February 24th 2003 to the continued hearing on March 6, 2003 where the courts perspective changes. At that latter hearing, Chase / Ocwen former attorney Diane Weifenbach makes an appearance and urges the court to employ some sort of legal device to prevent me from raising this automatic stay violation ever again Page 84 Line 18.

The Bankruptcy Appellate Panel declined to enforce its own precedential opinion , In re: Nathan Johnson July 7, 2006  , the court address jurisdiction issues and determines the bankruptcy court cannot refuse jurisdiction to hear 362 violations, when asked to do so. 

The BAP in this case, sidestepped that central issue of jurisdiction that has legally stymied me, from obtaining a hearing for over nine years.  The BAP enumerated the 5 criteria used in this circuit to analyze the worthiness of such relief, but did not apply the particular facts of my case to these screening criteria used in the 9th Circuit.

In the order denying my petition for a writ the BAP notes that it restricts its issuance of writs ‘only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so’ 

Extraordinary relief is required to allow this debtor to enforce his rights under bankruptcy law, since the time to appeal had passed when I learned of the dismissal, at the court clerk’s office on February 14, 2011. 

In this pro-se litigants opening brief I have attempted to deliver ‘just the facts’, like Jack Webb, Dragnet style, and have resisted the emotional urge to express my opinion as well as the facts, as I did in the 2003 appeal to this court, when I was still raw from the eviction.

I would respectfully ask the court, considering the durtion of this dispute, to act sooner,  rather than later within the appeals timeframe. 

We Pray

Signed this 5th day of January 2012  in Corona, California 

/s/- Gary Lawrence Ozenne

[1] The loan was sold to Wall Street and described  in New York author, Mike W. Hudson’s 2010 book, “The Monster – How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America – and Spawned a Global Crisis”  Times Books - Henry Holt and Company, New York

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