A Petition for a Writ of Mandamus
Case 01-18618MJ
To the United States Bankruptcy Court
Central District of California
01-18618MJ
The Honorable Meredith Jury
Houser and Alison
9970 Research Dr.
Irvine, CA 92618
949-679-1111
For:
Chase Manhattan Bank – Beneficiary
Ocwen Loan Servicing LLC successor to
Ocwen Federal Bank FSB – Service Agent
RELIEF SOUGHT
Petitioneer Gary Ozenne seeks an order from this court ordering a trial or hearing for the violations of law under 11 USC 362.
THE ISSUE
Enforcement for stay violations under 11 USC 362 discovered after case dismissal and the jurisdiction of the bankruptcy court to hear those violations after case dismissal.
THE FACTS
In the summer of 2002 Petitioneer was prevented from an approved refinance because sixteen months earlier Ocwen Federal Bank FSB had issued a trustees deed to the O’Neal’s. On May 17, 2001 Ozenne filed case 01-18618MJ. On May 29, 2001 Carol and Steven O’Neal recorded a trustees deed with the Riverside County recorder in clear violation of the automatic stay. Throughout that case and a subsequent case 02-14014MJ, petitioner and his attorney believed that Ocwen had rescinded the O’Neal that it had issued in violation of the stay. After dismissal, in May of 2002, the deed was discovered by Indy Mac Bank and prevented them from closing the loan offered to Ozenne. Instead of rescinding the O’Neal deed, Ocwen held another sale and issued another deed, and when that buyer gained possesion Ocwen finally recorded a rescission of the O’Neal deed. This violation of law prevented Ozenne from refinancing his home after the bankruptcy dismissal. He lost his home of twenty-six years. His business, Residential Fire Sprinklers, operated from that home, failed shortly after. Years of appeals have failed to give him a judicial forum to have these violations of law heard.
1. On May 17, 2001 Gary Ozenne filed for bankruptcy protection, case 01-18618MJ. He took the petitions to the sale and showed them to the auctioneer. Later that day he faxed them to the trustee in Orange County.
2. On May 29th 2001 Carol and Steven O’Neal recorded their trustee’s deed issued by Ocwen and started an eviction action. When debtors attorney, Clay Presley, returned from vacation and made some calls, the O’Neals stopped their eviction lawsuit.
3. The trustee mailed a letter asserting they were “unaware” of the bankruptcy filing and would rescind the sale.
4. On December 5th 2001 attorney Louis Bruno joined attorney Clay Presley to litigate an ignored TILA rescission mailed a month before on April 24, 2001.
5. In March 2002 the Chapter 13 plan became unsustainable with the submission of an erroneous IRS claim and the court dismissed the case. The claim was corrected and case 02-14014MJ was filed later that month.
6. On May 22, 2002 case 02-14014MJ was dismissed with predjudice and attorney Presley filed a motion for reconsideration on June 5th 2002 which failed.
7. Out of bankruptcy, in June 2002 Indy Mac bank offered the debtor a loan to refinance his home after conducting an appraisal of the property.
8. The loan could not close, however, because [1]title was still vested to O’Neal.
9. On July 31, 2002 Chase / Ocwen held another sale and issued a deed to Vista Homes.
10. Vista Homes recorded that deed on August 14, 2002.
11. On September 24th 2002 an unlawful detainer trial was held and Vista homes gained possesion of the property.
12. On September 26th 2002 Chase / Ocwen recorded a rescission of the O’Neal deed.
13. On December 11, debtor suffered a stroke which hospitalized him for 11 days in the Corona Regional Medical Center.
14. On February 17, 2003 Ozenne was evicted from 861 W. Crestview St.
15. On February 24, 2003 the court heard a motion on shortened time to hear debtors claims. The court is concerned with the stay violation and continues the hearing.
16. Ten day’s later on March 6, 2003 at the contined hearing, the case was dismissed.
17. An appeal was made to the Bankruptcy Appellate Panel, but removed by the creditor to the United States District Court which confirmed the bankruptcy court on August 5, 2003.
18. An appeal was made to the Court of Appeals 03-56569 in October 2003.
19. In the summer of 2004 a Chapter 7 bankruptcy case 04-18301MJ was filed to protect personal and business assets held at Dollar Storage, who violated the automatic stay and sold everything.
20. This court affirmed that in Ozenne v Dollar Storage January 17, 2006.
21. In June of 2005 the Court of Appeals ruled against the debtor 03-56569
22. In July 2005 a motion for reconsideration was construed as a petition for panel rehearing and denied in August.
23. The opinion this court ruled in Ozenne v Dollar Storage prompted a petition for rehearing with the United States Supreme Court which was denied in April 2006.
24. Not over one year later in April of 2007, Ozenne again motioned the court for a hearing under 11 USC 362 and Rule 60 of the FRCP.This was denied asserting “No Jurisdiction”.
25. An appeal to the Bankruptcy Appellant Panel was removed by the banks to the United States District Court, who did not address any tolling of the 1 year requirement, and ruled the rule 60 claim untimely.
26. An appeal was made to the 9th Circuit Court of Appeals 08-56599 in late 2008.
27. A petition for a writ of mandamus 09-70552 and declaration was filed in the Court of Appeals in February 2009 but later denied citing that relief could be found in my appeal.
28. An unexpected order from the court to pay filing fee’s or the case would be dismissed required Ozenne to make another loan from the family.
29. On the last day to do so,March 10, 2009, Ozenne mailed his Appellants Opening Brief to the court in San Francisco. On March 13, 2009 Ozenne received electronic notice that his case had been summarily dismissed before briefing.
30. A request for judicial notice was approved but a motion to reconsider was denied.
31. In November of 2009 a “motion for sanctions” was filed in the bankruptcy court.
32. In November of 2009 a petition for a writ of certiorari was filed in the United States Supreme Court and denied in February of 2010.
33. In July of 2010 A declaration in support of the motion for sanctions was filed.
34. In October of 2010 a request for judicial notice was filed.
35. On January 21,2011, after receiving a date from the courtroom deputy a Notice of Hearing, Memorandum of Points and Authorities, and a Proposed Order, was filed with the hearing date of February 14, 2011, 1:30 Courtroom 301.
36. On February 14, 2011, when Ozenne arrived early at the court he checked his case on the computer systems in the clerks office and discovered his case was dismissed.
37. On February 23, 2011 Ozenne filed a Notice of failure to receive notice of Courts order denying hearing for sanctions under 11 USC 362
.
THE REASONS WHY THE WRIT SHOULD ISSUE
“Justice delayed is Justice denied” ...........William Gladstone
During the time of this case and its appeals case law has grown and evolved to support petitioners position and is the leading argument for issuing this writ.
Case Law in the 9th Circuit
From In re Johnson July 7, 2006
Similarly, it is settled that a bankruptcy court continues to have jurisdiction to annul the stay and to impose sanctions for stay violations. Lusardi, 329 F.3d at 1080; Davis, 177 B.R. 907, 911 (9th Cir.BAP1995);Williams, 323 B.R. at 702.
Nor can the court's expression of refusal to exercise any discretion that it may have to “extend jurisdiction” be construed as discretionary abstention under 28 U.S.C. § 1334(c)(1).FN2 The court made none of the findings necessary to establish a predicate-interest of justice, comity with state courts, or respect for state law-for such abstention.
Basic federal jurisdiction jurisprudence requires that a court with jurisdiction must exercise such jurisdiction when asked to do so. See, e.g., Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
This common-law rule applies in bankruptcy, albeit that it has been softened by a statutory grant of broad bankruptcy abstention authority. Swift v. Bellucci (In re Bellucci), 119 B.R. 763, 774-77 (Bankr.E.D.Cal.1990) (nonstatutory abstention doctrines apply in bankruptcy); 11 U.S.C. § 305 (abstention from entire case); 28 U.S.C. § 1334(c) (abstention from bankruptcy proceedings).
Where a bankruptcy court has jurisdiction but is not in a position to avail itself of statutory or nonstatutory abstention, it must exercise its jurisdiction. An automatic stay violation dispute is such an instance. Hence, the bankruptcy court erred when it ruled that it would decline to
exercise jurisdiction.
Case Law in the 10th Circuit
The 10th Circuit spoke equally clearly in its opinion In Johnson v Smith 08-8052 August 5, 2009
“It is particularly appropriate for bankruptcy courts to maintain jurisdiction over 362(k)(1) proceedings because their purpose is not negated by dismissal of the underlying bankruptcy case. They still serve (a) to compensate for losses that are not extinguished by the termination of the bankruptcy case and (b) to vindicate the authority of the statutory stay.”
“Requiring the dismissal of a 362(k)(1) proceeding simply because the underlying bankruptcy case has been dismissed would not make sense. A court must have the power to compensate victims of violations of the automatic stay and punish the violators, even after the conclusion of the underlying bankruptcy case. It is clear that dismissal of a case does not validate actions which constituted violations of the automatic stay during the pendency of that case.”
This court has considered its authority to issue extraordinary relief under the federal All Writs Act, See In re Constance B. Salter 2002, and has concluded that the Bankruptcy Appellant Panel does indeed have the authority to issue such extraordinary relief.
Petitioners federal civil right to due process have been denied! Our laws guarantee a judicial forum to hear its citizens grievances about losing their freedom or property. An opportunity to be heard. As a violation of bankruptcy law, jurisdiction properly rests with the bankruptcy court. Obtaining the hearing to pursue those law given rights is controlled by the bankruptcy court and their jurisdictional limits. Because the creditor violated the law this debtor lost his home and his business and has been unable to be heard in a court of law !
Ocwen Federal Bank FSB, failed to obey the law this failure to rescind the O’Neal deed is the one and only reason petitioneer could not close the offered loan from Indy Mac. The bankruptcy court ruled in April of 2006 and January 2011 that it lacked jurisdiction to grant relief. This is not in compliance with case law in this circuit. The facts are undeniable and the law is settled. The law now needs to be applied. Who knows if this was a creditor mistake, diliberate or unintentional, but the fact remains, these banks violated the law and have suffered no consequences for their violations of law! Except for the legal expense involved in keeping a pro-se debtor legally at bay
This writ seeks to enforce the law.
Because these bankers did not obey the law, Gary Ozenne was harmed. Starting with the Sheriffs eviction from his home of 26 years and the loss of his home based business Residential Fire Sprinklers to a skin condition that now affects more than 90% of his body, caused by stress.
In spite of all this “damage” under 11 USC 362, he has yet to have the facts examined and the laws applied. The “shall” in the remedy of 11 USC 362(k) does not mean much if the debtor is prevented from having his claim heard.
Jurisdictional issues have prevented petitioner from obtaining a hearing, under 11 USC 362(k) The law states that
an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 USC 362(k)
The law is clear, however, the issue of jurisdiction is less certain. Petitioner has gone to the United States Supreme Court, twice, to enforce his rights under the law. Incredibly that bankruptcy case, 01-18618, was filed to stop the flawed foreclosure action, which started in December 2000 when Ozenne demanded an accounting of a $3,841 overpayment, and Ocwen responded the following month, January 22, 2001, by substituting the trustee who started a foreclosure action asserting Ozenne was $10,539 in arrears! A TILA rescission did not stop these sloppy creditors, nor did the bankruptcy filing made on May 17, 2001, the day of the sale.
After a Chapter 7 and a Chapter 13, in early 1998, I petitioned the court to dismiss my case, so that I could attempt a self styled reorganization to be funded by a refinance of my home by Ameriquest[2]. A national 8.5 million fire sprinkler recall portended a brighter business future. The promised 10.5% fixed rate loan from Ameriquest, at the last moment, turned into a reduced loan amount, variable interest rate, starting at 14.5%, and could only go up. This was at the beginning of Wall Street securitized loans. Ocwen serviced both Lehman Brothers and Chase Manhattan while these banks held the security to my home.
I left my career in computers and software to start my own business. I had an AS degree and enjoyed the fruits of a responsible and successful computer career working for Sperry Univac, United Airlines, Nixdorf AG, and Microsoft. I bought my home in Corona in 1976. In 1991, I made the leap into the residential fire protection business. I had bet everything on the house including my Microsoft 401, and IRA accounts, stocks and savings. The law was in essence my Alamo against these creditors.
I lost my retirement nest egg, because these Wall Street bankers did not obey federal bankruptcy law. I have been unable to address these violations in a court of law. It’s maddening. These banks used a sacred part of the American experience, home ownership, to cull their greedy profits. Then hire legal help to avoid the consequences of their actions. If this petition fails, these creditors will have quashed my legal due process right to have my grievances heard by the court. Now at 61 years old, minimal income, a chronic skin condition, and living at the generosity of my nephew, this non adjudicated violation by these creditors, has become paramount in my life. Issuing this writ would give the petitioner his life back.
I have done all I can, to resolve this bungling of my account, including letters to Chase CEO Jamie Dimon and elected officials. Arnold Schwarzenegger assisted me in 2004 to get answers from Ocwen when the Office of Thrift Supervision followed up on his inquiry. Ocwen replied that they had rescinded the deed, which was not true. A judicial forum was required to resolve that false statement. A new complaint was filed with the OTS in 2009. I need my rights as a United States citizen enforced! A judicial forum to discern the facts and apply the law.
I Pray
Signed this 29th Day of April 2011
_______________________________________
Gary L. Ozenne
[1] California Civil Code 1058.5 allows only the beneficiary or the trustee to record a rescission of a trustee deed recorded in error. Petitioner’s hands were tied by this stay violating deed. Chase or Ocwen had to record the rescission with the Riverside Recorder.
[2] In October 2010 a book by Michael W. Hudson about Ameriquest which described Ozenne’s loan was published in “The Monster – How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America And Spawned a Global Crisis” 2010 - Times Books a Henry Holt Company
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