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March 6, 2011
It was exactly eight years ago today that I walked into the bankruptcy court for justice. Ten day's earlier, on February 24, 2003, the court acknowledged the fact that Chase Manhattan, as the trustee of a trust of packaged loans, and Ocwen Federal Bank FSB, (the loan servicer), had violated bankruptcy law by issuing a deed to third party O’Neal, which was not only a violation of bankruptcy law, it later prevented me from refinancing my home. Instead of fixing this error, the bank sold the property again. A few months later I lost my home of a quarter of a century, and my home based fire protection business operated from that home. This is the story of my attempts to bring the banks into a court of law.
Today, March 6, 2003, was the continued hearing from ten days earlier, being held at 3 PM Court room 302, the honorable Meredith Jury, bankruptcy judge for the Central District of California, in the 9th Judicial Circuit. We had moved all of my possessions from my home the previous President’s Day February 17, 2003. It was all of the contents from my home of 26 years and it filled not only the largest storage unit available but a second unit. A friend took the fuselage to my airplane N501S, Stolp Starlet serial number 1. This was the prototype for Lou Stolp’s SA-500 series of home-built aircraft at the Fla-Bob airport.
At that hearing the judge, suddenly and inexplicably,sided with the banks, and dismissed my case with prejudice. Justice was derailed. My attorney was as baffled as I was. This was the beginning of the odyssey.
Now, eight years, and two trips to the United States Supreme Court later, I have still been unable to get the bank into court to state my case, show evidence and prove the facts in a court of law.
This has changed my story from the classic "they stole my home" to an even more sinister and frightening realization, I cannot get the banks into court. The judicial system has turned a deaf ear, in this battle for justice. The banks strategy of of attrition favors the inanimate corporation, and has proven to be successful. I cannot get a court room hearing, guaranteed under our system of law. Even a traffic ticket gets a hearing. The facts are undeniable, and the law is well settled. Yet I can't get the bank into court!
Here's the Story
A bankruptcy "automatic stay", 11 United States Code Section 362, is perhaps a bankruptcy proceedings most useful tool. It puts an immediate halt on any legal action that would affect the debtor's estate. Without this immediate stay, better informed creditors, could take advantage over the rights of less informed creditors. The law protects creditor's and debtors interests.It puts an immediate freeze on all property of the estate. Nothing can be sold, without of course, the bankruptcy court's signed order.
In this case Wall Street bankers and their agents have violated this law, by issuing a deed to my home to the O'Neals, while I was protected by the "automatic stay". Keeping this secret until my case was dismissed, this deed prevented me from refinancing. Then, instead of correcting their violation - which only they could legally do - the bank held another sale Once I was evicted, the bank rescinded the O'Neal deed, and have managed to keep it out of court since 2003, when I was evicted from my home of 26 years and my home based business, Residential Fire Sprinklers, failed.
I lost my home because Wall Street bankers violated this federal bankruptcy law. The bankruptcy court has refused - for the last eight years - to accept jurisdiction and allow a hearing to determine the facts, and apply the law.
Unable to gain a hearing within the judicial system has effectively rewarded the bank for violating the law. By successfully avoiding a court room confrontation on their undeniable violations of law, the bank has avoided any consequences for their unlawful actions. As a corporate entity, the bank can easily adopt such a strategy of delay; time is on their side.
I left a 20 + year, secure position in the computer software business to start a fire protection business. Years later as the business faltered, and I had completely went through all assets; 401K, IRA's and all savings and stock accounts. Finally down to my last asset, the family home of 26 years, I used bankruptcy law to protect my home while I reorganized my financial life.
How did I get there? .
I had sent my lenders service agent, Ocwen, $22,823.66 to fully reinstate my defaulted loan , then I discovered the banks simple addition error. I had overpaid the bank $3,824.41. Immediately calling the bank, I was told that "they will look into it".
The following month, out of left field, I was sent a "notice of default" claiming arrearages in the amount of $10,529.69! It was as if I had fallen through a rabbit hole!
Next, before the 3 year TILA limit expired I mailed a certified "notice of rescission" under TILA, 15 USC 1635, which was received and signed for by the bank and promptly ignored. The bank continued with the flawed foreclosure sale. I filed for bankruptcy protection, but the bank issued a deed to Carol O'Neal. When O'Neal attempted to evict me, my attorney made some calls and O'Neal dropped the eviction lawsuit.
I hired a second attorney to enforce the TILA rescission, but the bank argues that the $67,000 TILA tender was deficient and some sort of ruse, after all, the bank claimed, it only represented about 57% of the original $116,250. loan, and now with fees and other charges has ballooned to over $146,000, for which the bank unlawfully filed a "proof of claim ", even though title was still legally vested to O'Neal. This violates federal criminal law 18 USC 152. The bank glosses over the fact that the missing 43% of the loan or about $49,500 had already been paid in regular monthly payments in the first 35 months of the 14.5% loan. The bank then proceeded to convince the court that the debtor was playing "fast and loose" with the court, and the court agrees with the bank. Chase / Ocwen succeeded in having the case dismissed with prejudice.
Tired and frustrated with courts, lawyers, and incompetent bankers, you find a new loan, with a new lender. Before the new loan closes, however, the new bank discovers that title is still deeded to O'Neal. Instead of fixing their unlawful act, the law violating bank holds another trustee sale. You attend, and announce that the sale is illegal, but a real estate investor picks up the property for about $164,000. Considerably lower than the recent bank appraisal of $230,000 made a month earlier.
Another deed was issued and recorded on August 14, 2002. The eviction trial is won by the real estate investor on September 24, 2002. Two days later, September 26, 2002, the bank rescinded the O'Neal deed. This gave clear title to the real estate investor who then resold the property a short time later which ended any chance to eventually recover my property at 861 W. Crestview.
I was evicted from my home of 26 years on Presidents Day 2003. Later, that month the court finally seemed to understand the issues and held a hearing on shortened time on February 24, 2003. At that hearing as evidenced by the transcripts, the court completely understood what had happened to you as she explained it to one party appearing telephonically.. The court continued the hearing 10 days. Then, in a complete 180 turn, the court becomes the banks advocate and suddenly and inexplicably dismisses the case with prejudice.
This starts an appeal process: first to the 9th Circuit BAP or bankruptcy appellant panel. This was removed, by the bank to the United Stated District Court, who ruled on August 5, 2003, in the banks favor, but did not address the violation of the stay. An appeal to the 9th Circuit took 18 months to receive their 3 pages decision, in which they fail to understand the time line, as evidenced in the decision. They ruled I should have raised the issue at an earlier hearing. A motion for reconsideration, pointing out that I did not learn about it until the new lender discovered it while trying to close my approved loan yielded a quick response; case closed.
I filed a petition for a writ of certiorari before Thanksgiving, 2005 while in a FEMA deployment in Florida. . Upon return to So Cal in January of 2006, I was greeted with some encouraging news. The 9th Circuit BAP had reversed the same court, the same judge, on a dispute with my storage operator, who had sold all of my business and personal possessions, right on down to the photos and videos. As with the house, it was a violation of the 04-18301MJ bankruptcy automatic stay; 11 USC 362, the same point of law. Ozenne v Dollar Storage -
I then motioned the original court, Judge Jury, for a hearing to determine damages from the violation of law. The court replied that it "lacked jurisdiction". This began a judicial appeals replay with predictable tactics from the bank. Again, the appeal to the BAP was removed by the bank to the district court, which ruled in favor of the bank without addressing the indisputable facts of the stay violation. I retuned home from a FEMA deployment for Hurricanes Hanna, Ike, and Gustav, and a near financial meltdown. I appealed to the 9th Circuit while in Greenville MS.
Opening Briefs, 08-56599, to begin the 9th Circuit Appeal were due by March 10, 2009. Not wanting to wait another 18 months for a decision from the court. I filed a petition for a "Writ of Mandamus" 09-70558, in February 2009, hoping the higher court would order the lower court to grant me a hearing on my charges. No luck! The court ruled I could find relief in my appeal 08-56599.
Then, out of the blue, the court denies my petition to proceed "in forma pauperis" or without filing fees, as I had enjoyed for duration of this conflict. Suddenly the $455 dollar filing fee is needed or the case would be dismissed. Since I was not employed, on food stamps, and not homeless by the generosity of my brothers son, I had few options. My nephew lent me the $455.00 filing fee. Whew ! That was close.
The District Court notified the 9th Circuit that the fee had been paid. I went to work on the Opening Brief, and mailed it on time on March 10, 2009. Two day's later I got notice, by the chief justice himself, Alex Kozinski, and two other judges that my case could be decided without having to be shown any evidence, or even, the particulars of the conflict, including the opening brief which outlines the basis of the appeal. Remarkable!
Motions for reconsideration also failed. I was down to an appeal to the United States Supreme Court. Realizing this was, at best, a 1 in 100 shot, probably less since it is pro-se or self represented.
A letter to the original Judge, Meredith Jury, who was now a member of the 9th Circuit BAP, as well as an active bankruptcy judge was mailed seeking support against these relentless bankers. A month later I received the letter back, with a note from the judicial assistant that the judge could not assist me with my Supreme Court petition for a writ of certiorari, and advised me to file the "appropreate pleadings" in the bankruptcy court, if i wished to be heard. Meanwhile I filed my petition for a Writ of Certiorari with the Supreme Court. It was denied February 22, 2010
I based my latest motion based upon a recent 10th Cir decision in which the court writes:
“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.”
I filed a motion for Sanctions in November 2009, and waited to hear from the court. Next I filed a declaration in July 2010 and waited. Then in October, a request for judicial notice. In December, a call to the court deputy, informed me that other steps were needed. I filed a motion for hearing with Points and Authorities on Jan 21, 2011. A notice of hearing for was set for February 14, 2011 at 1:30 pm Court 301.
When I showed up at the date and time given to me by the judicial assistant, February 14, 2011, I learned that again, my case had been dismissed on January 27, 2011. I was very surprised, I had received nothing in the mail. That night I realized that it was already past the ten day time to appeal.
Written on my submitted proposed order was the following.
“This case is closed after dismissal. The court has no jurisdiction to grant any relief at the present time”
If the bankruptcy court does not have jurisdiction to enforce its orders, and laws for violations that occurred during the pendency of a bankruptcy case, who does?
As I try to find legal assistance, would you consider a story on this failure to obtain “due process” in this day of securitized mortgage’s and Wall Street greed? I have violated no law, but have lost my home, my business, and health, to an invisible financial force from Wall Street with whom I cannot gain a hearing.
A New York author Mike W. Hudson contacted me in February of 2009 and interviewed me for hours about my experiences with Ameriquest and my story. His recent book The Monster illustrates how I got caught in this web of greed, formed by Orange County loan originator's who got hooked up with Wall Street, who now were about to finance this latest boom and bust. And make a lot of money doing so. When the bottom fell out, both Republicans (Bush, McCain) and Democrats (Obama) were afraid of going into a full on depression.
This unbridled greed by the progeny of the robber barons on Wall Street once again have brought turmoil to American citizens, for the foreseeable future and a return to bonuses, for Wall Street, within 3 months.
An excerpt from the Monster contrasts my situation with that of Roland Arnall who founded Ameriquest in Orange County California. It is online and called titled the Billionaire and the Borrower. Here is the link counterpunch.org.
I am seeking media attention on my failure to obtain a judicial hearing against the Wall Street Bankers who literally stole my house, and put me out of business.
Gary L. Ozenne
7351 Piute Creek Dr.
Corona, CA 92881
created Feb 28, 2011
Last rev 3-14-11