Embed Size (px)
Citation preview
\ No._____
3n,be
'uprente (Court of the Gniteb Otatto
DANIEL G. SZMANIA,
VS.
E-LOAN, INC., ET AL.,
Petitioner,
Respondents.
On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
DANIEL G. SzMANIA, Pro Se HM1 USNR Retired, U.S. Supreme Court No. 11-6137 PO Box 757 Brush Prairie, WA 98606-0757 360-718-1402 Email: [email protected]
September 27, 2018 (Originally filed)
November 30, 2018 (Booklet format filed)
R ECEiVEb DEC 4 , - 2018
OFFICE OF
1
QUESTIONS PRESENTED, RULE 14.1(a)
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) error when not enforcing a ruling of the U.S. District Court Western District of Washington at Tacoma, Case No. 3:16-CV-05644-RBL, (District Court) ruled on 11118/16: "This is not a foreclosure case." Dkt 64 page 2 at 14. The Ninth denied the overturning of the illegal foreclo-sure/trustee sale by Wells Fargo on 10/28/16 that was done without leave of the District Court when the issue of who was the legal beneficiary was still before the District Court. Ignored the material facts that JP Mor-gan Chase (JPMC) parent company of Bear Stearns, declares they do NOT OWN Plaintiff's loan! (Dkt 66-2 Ex DD specifically page 7 District Court.) See DktEntry 10 pages 4-7, & DktEntry 30.
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) error when it did not Reverse and Remand the Removal to Federal District Court by Wells Fargo (Wells) when Wells was NOT properly served at the time of the Re-moval to District Court based upon the Ruling of the District Court: 9/8/16 in Dkt 49 page 6 at 22-23, the District Court ruled: "Wells Fargo had not been served when the case was removed and its consent was not re-quired as a matter of law. The Motion to Remand [Dkt. #231 is DENIED." See DktEntry: 10, p. 8 at 1-13. Can a non party remove a case? "Consent. This matter is being removed by Wells Fargo.. . "See Dkt 1 p. 3 at 20, District Court.
11
QUESTIONS PRESENTED, RULE 14.1(a) - Continued
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) error when it did not apply the Doctrine of Res Judicata to both the Petitioner and the Respondents on all motions and pleadings within the administration of justice or were their actions an arbitrary denial of Petitioner's property; his home? See DktEntry 32.
Was the Petitioner's Due Process, especially Procedural Due Process of the Fifth and Fourteenth Amendments to the United States Constitution Vio-lated by the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) when it did not apply Res Judicata to both parties fairly and in a neu-tral way for neutral decision making on all motions? Was this a Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Con-stitution and within the administration of justice or were their actions an arbitrary denial of Petitioner's property; his home? See DktEntry 32.
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) actu-ally and properly adjudicate Petitioner's Motions in DktEntry 7,8-1,11-1,17-1 and DktEntry 10 with many legal arguments in the 20 pages by simply ruling: "Appellant's motion for injunctive relief (Docket Entry No. 10) is denied." See DktEntry 30. Where's the mate-rial proof the Ninth examined and adjudicated each claim in that motion? Is this in Violation of Petitioner's
111
QUESTIONS PRESENTED, RULE 14.1(a) - Continued
Due Process under the Fifth and Fourteenth Amend-ments to the United States Constitution for Procedural Due Process for neutral decision making and was this within the administration of justice or were their ac-tions an arbitrary denial of Petitioner's property; his home?
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) actually vote and tally for Petitioner Motion for Rehearing and En Banc Hearing. See DktEntry 32. Was the Ninth's Denial of an En Banc Hearing in Violation of Peti-tioner's Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and further a failure in Procedural Due Process for Neutral Decision Making or was their actions an arbitrary de-nial of Petitioner's property; his home and was their ruling aligned with previous rulings? See FRAP 35(a)(1)(2) and DktEntry 33.
Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) Error by Denying an Emergency Motion for Protection of the Pe-titioner's life and his family in DktEntry 8-1 & 8-2 EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 Motion for Restraining Order, Anti Harass-ment Order and an Anti Stalking Order after Wells Fargo made death threats? Was the Ninth's Denial a Violation of Petitioner's Constitutional rights of protection of his life under the Fifth and Fourteenth
lv
QUESTIONS PRESENTED, RULE 14.1(a) - Continued
Amendments to the United States Constitution or in the Constitutions whole? Further was the denial a fail-ure in Procedural Due Process for Neutral Decision Making or was their actions an arbitrary denial of Pe-titioner's value of his life? See DktEntry 8-1, 8-2 and 9.
8) Did the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) Error by Denying an Emergency Motion for Protection of the Pe-titioner's Jurisdiction of the Case and Retain its Juris-diction when it Denied a motion to stop a Parallel Case in State Court by the Respondent Wells Fargo and was their Denial a Surrender of the Ninth's Jurisdiction and subsequently Voiding the Ninth's all or the latter Rulings and Orders and a violation of Due Process? See DktEntry 17-1, 17-2 and 21.
V
LIST OF PARTIES, RULE 14.1(b)
DANIEL G. SZMANIA, PETITIONER,
Vs.
E-LOAN, INC., et al., RESPONDENTS.
E-LOAN, INC.,
AND
BEAR STEARNS ARM TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-3,
AND
BENJAMIN D. PETIPRIN,
AND
WELLS FARGO BANK, N.A.
AND
JOHN G.STUMPF
CORPORATE STATEMENT, RULE 14.1(b) & RULE 29.6
E-LOAN, INC. Is an out of business entity as of 11/30/2009. See Dkt 2-3, p. 39-40 (Ex D) District Court. (E-Loan)
AND
BEAR STEARNS ARM TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-3. (Bear Stearns) Is a closed Security and solely owned by J.P.
Vi
CORPORATE STATEMENT, RULE 14.1(b) & RULE 29.6 - Continued
Morgan Chase. Dkt 66, Dkt 66-1 and Dkt 66-2 Ex DD. District Court. Chase says they have NOTHING to do with Szmania's alleged loan! They said: "We were un-able to locate your property in our records. The loan you contacted us about is not affiliated with Chase." (Emphases added!)
DELISTED on 1/20/2009, SEC Form 15d-6. See Dkt 2-3, p.44-48 (Ex F), District Court OR https://www. sec.gov/Archives/edgar/data11392865/000 1056404090 00024/0001056404-09-000024.txt *1 ask the Court to Judicially Notice this linked document.
BENJAMIN D. PETIPRIN, Is the Illegal Trustee and an Alleged Criminal. (Petiprin)
AND
WELLS FARGO BANK, N.A. "is a national bank head-quartered in South Dakota and is therefore a citizen of South Dakota for diversity purposes." See Dkt 1 p. 2 at 18-19, District Court. "Berkshire Hathaway Inc., a pub-licly held corporation, owns 10% or more of Wells Fargo & Company's stock." DATED: July 22, 2016. See Dkt 9 p. 1 at 20-21, District Court. Wells is a criminal enter-prise that steals fully paid off homes of disabled Veter-ans like that of the Petitioner while using death threats. See DktEntry 8-1, 8-2 and 9. (Wells)
Ewl
vii
CORPORATE STATEMENT, RULE 14.1(b) & RULE 29.6 - Continued
JOHN G. STUMPF, Is the former CEO of Wells Fargo and its Mafia like criminal enterprise and is an Alleged Criminal. (Stumpf)
Viii
TABLE OF CONTENTS, RULE 14.1(c) Page
QUESTIONS PRESENTED ................................i LISTOF PARTIES ..............................................v CORPORATE STATEMENT ...............................vi TABLE OF CONTENTS ......................................viii TABLE OF APPENDIX .......................................viii TABLE OF AUTHORITIES.................................ix PETITION FOR A WRIT OF CERTIORARI 1 OPINIONS BELOW ............................................. 1 STATEMENT OF JURISDICTION.....................1 CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED...........................................2 STATEMENT OF THE CASE..............................2 ARGUMENT AND REASONS FOR GRANTING
THEWRIT........................................................6 CONCLUSION.....................................................24
APPENDIX, RULE 14.1(i) APPENDIX A, UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT Opin- ions, Case No. 16-36055 ...................................App. 1
APPENDIX B, U.S. District Court Western Dis- trict of Washington at Tacoma, Case No. 3:16- CV-05644-RBL .................................................. App. 4
APPENDIX C, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Or- der, Case No. 16-36055...................................App. 10
ix
TABLE OF AUTHORITIES Page
CASES: Rule 34.2
Bain v. Metropolitan Mortgage Group, 175 Wash.2d at 101, 285 P.3d 34 (August 16, 2012) ..........................................................................3
Bavand v. One West Bank FSB, 176 Wn. App. 475, 309 P.3d 636 (2013) ...........................................3
Janell Howard v. City of Coos Bay, No. 14-35506, September 25, 2017.................................................10
Jerry Scott v. Mers, No. 13-15129 (9th Cir. 2015) ......22
Joyce v. US., 474 F.2d 215 (1973)...............................18
Katt v. Dykhouse, 983 F.2d 690 (6th Cir. 1992)..........10
Lowe v. Jacobs, 243 F.2d 432 (5th Cir.), cert. de- nied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed. 52 (1957) .......................................................................20
Melo v. US, 505 F.2d 1026 (8th Cir. 1974)...................18
Merritt v. Hunter, C.A. Kansas, 170 F.2d 739 (10TH Cir. 1948)........................................................6
Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248 (11th Cir. 1988)........................................................20
Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S. Ct. 236 (1907) .............................................18
Skinner v. Switzer, 131 S. Ct. 1289 (2011).................22
State of Hawaii v. Donald ei Trump, et al., CV. NO. 17-00050 DKW-KSC) .......................................15
0.4
TABLE OF AUTHORITIES - Continued Page
STATUES:
28 U.S.C. § 1446(a) - Generally..................................22
28 U.S.C. § 1446 - Procedure for removal of civil actions: (b) REQUIREMENTS; GENERALLY ........ 7, 18
28 U.S.C. § 1446(d) - Notice to adverse parties and State Court ........................................... 17, 19, 20
28 U.S.C. § 1447(c) - Procedure after removal generally.............................................................. 8, 19
28 U.S.C. § 2283 - Stay of State court proceed- ings..........................................................................20
COURT RULES:
Fed. R. App. 35(a)(1) ...................................................14
FRCP 12(b)(6) Defense and Objections......................22
FRCP 62.1 Indicative Ruling on a Motion for Re-lief That is Barred by a Pending Appeal ................21
FRAP 12.1 Remand After an Indicative Ruling by the District Court on a Motion for Relief That is Barred by a Pending Appeal ......................21
OTHER AUTHORITIES
Executive Order No. 13,780 issued on March 6, 2017 "Protecting the Nation from Foreign Ter- rorist Entry into the United States ......................... 15
1
PETITION FOR A WRIT OF CERTIORARI
Daniel G. Szmania petitions for a writ of certiorari to the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT in Daniel G. Szmania v. Loan, Inc., et al., No. 16-36055.
OPINIONS BELOW, RULE 14.1(d) UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT in Daniel G. Szmania v. E-Loan, Inc., et al., No. 16-36055 is Non Published. Opin-ions and Orders may be found at: Order Emergency Motion DktEntry 21, Order Emergency Motion DktEntry 30, MEMORANDUM DktEntry 31-1, Order Denying En Banc Rehearing DktEntry 33 & MAN-DATE DktEntry 34. Others: DktEntry 9, DktEntry 15.
STATEMENT OF JURISDICTION, RULE 14.1(e)
The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MEMORANDUM DktEntry 31-1 was filed on February 23, 2018. Order Denying En Banc Rehearing DktEntry 33 was filed on July 3, 2018. Petitioner has 90 days or until September 3, 2018. See Rule 13-1 and 13-3. This Court may exercise jurisdic-tion under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED, RULE 14.1(f) Fifth and Fourteenth Amendments to the United
States Constitution.
STATEMENT OF THE CASE, RULE 14.1(g)(i)(ii)
The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) abused its Dis-cretion and Violated Petitioner's Due Process and did not apply the Doctrine of Res Judicata equally when not enforcing a ruling of the U.S. District Court Western District of Washington at Tacoma, Case No. 3:16-C V-05644-RBL (District Court) ruled on 11/18/16: "This is not a foreclosure case." See DktEntry 10 p. 5, at 19-24 (Dkt 64 page 2 at 14. District) The Ninth de-nied the overturning of the illegal foreclosure/trustee sale by Wells Fargo on 10/28/16 that was done without leave of the District Court when the issue of who was the legal beneficiary was still before the District Court. Benjamin D. Petiprin who is the "trustee" in an email finally admitted they did NOT have custody of the original NOTE! He said in (Dkt 59-2, Ex Z pages 6-15, specifically page 11 District):
"We do not have the originals in our custody or control. I cannot produce them." (Emphases added!) See DktEntry 10 p. 9 at 11-19.
Under Washington State law, having the Original Note is a Requirement before con-ducting a Foreclosure.
3
Also citing Ortega: "The Washington State Su-preme Court recently held that actual physical possession of the original note, either directly or through an agent, is a prerequisite to a valid non-judicial foreclosure under the DTA. Bain, 175 Wash.2d at 101 and 106,285 P.3d 34 (2012)." (Empha-ses added!) See DktEntry 10 p. 10 at 21-23 and See DktEntry 30.
"And Possession of a copy of the original note does not establish possession of the original note." See Bavand v. One West Bank FSB, 176 Wn. App. 475, 498, 309 P.3d 636 (2013). (Emphases added!) See DktEntry 10 p. 11 at 1-2.
The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) Violated Peti-tioner's Due Process when it did not Reverse and Re-mand the Removal to Federal District Court by Wells Fargo (Wells) when Wells was NOT properly served at the time of the Removal to District Court based upon the Ruling of the District Court: 9/8/16 in Dkt 49 page 6 at 22-23, the District Court ruled: "Wells Fargo had not been served when the case was removed and its con-sent was not required as a matter of law. The Motion to Remand [Dht. #231 is DENIED." DktEntry 10 p. 8 at 1-13. The Ninth abused its discretion when it did not apply the Doctrine of Res Judicata to both the Peti-tioner and the Respondents within the administration of justice and their actions where an arbitrary denial of Petitioner's property; his home thus Violating Peti-tioner's Due Process.
The Petitioner's Due Process, especially Proce-dural Due Process of the Fifth and Fourteenth Amend-ments to the United States Constitution were grossly Violated by the UNITED STATES COURT OF AP-PEALS FOR THE NINTH CIRCUIT (Ninth) when it did not apply Res Judicata to both parties fairly and in a neutral way for neutral decision making! This was a Violation of the Equal Protection Clause of the Four-teenth Amendment to the United States Constitution and NOT within the administration ofjustice and their actions were an arbitrary denial of Petitioner's prop-erty; his home.
The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) DID NOT properly adjudicate Petitioner's Motion DktEntry 10 with many legal arguments in the 20 pages by simply ruling: "Appellant's motion for injunctive relief (Docket Entry No. 10) is denied." See DktEntry 30. The lack of material proof the Ninth examined and adjudicated each claim in that motion is a clear violation of the Pe-titioner's Due Process under the Fifth and Fourteenth Amendments to the United States Constitution for Procedural Due Process for the neutral decision mak-ing and was NOT within the administration of justice and their actions were an arbitrary denial of Peti-tioner's property; his home!
• The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) Violated Peti-tioner's Due Process by NOT actually voting and tally-ing the results in their Order for Petitioner Motion for Rehearing and En Banc Hearing. See DktEntry 32,
5
32-1, 32-2. The Ninth's Denial of an En Banc Hearing is in Violation of Petitioners Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and further a failure in Procedural Due Process for Neutral Decision Making and their ac-tions are an arbitrary denial of Petitioner's property; his home! See DktEntry 33.
The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) by Denying an Emergency Motion for Protection (DktEntry 9) of the Petitioner's life and his family in DktEntry 8-1 & 8-2, EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 Motion for Restraining Order, Anti Harass-ment Order and an Anti Stalking Order after Wells Fargo made death threats clearly is a Denial by the Ninth that is a clear Violation of Petitioner's Constitutional rights of protection of his life under the Fifth and Fourteenth Amendments to the United States Constitution and in the Constitutions as a whole. Further this was a failure in Procedural Due Process for Neutral Decision Making and their actions were an arbitrary denial of Petitioner's value of his life and his family's lives! See DktEntry 8-1, 8-2 and 9. This is also a clear Violation of their Oath: "I will support, protect and defend the Constitution. ..
"The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (Ninth) by Denying an Emergency Motion for Protection of the Petitioner's Ju-risdiction of the Case on Appeal before them and to failed to Retain its Jurisdiction and wittingly surren-dered the Jurisdiction of the Ninth when it Denied a
N.
motion to stop a Parallel Case in State Court that was started by the Respondent Wells Fargo three (3) days after this appeal in question was filed. Their Denial and Surrender of the Ninth's Jurisdiction subsequently Voided the Ninth's latter Rulings and Orders and was a clear Violation of Due Process afforded the Petitioner under the US. Constitution." See DktEntry 17-1 (safe-guards p. 11), DktEntry 17-2 and DktEntry 21.
"Where a court failed to observe safeguards, it amounts to denial of due process of law, court is de-prived ofjuris." Merritt v. Hunter, C.A. Kansas 170 F.2d 739 (10TH Cir. 1948)
Rule 14.1(g)(ii) Basis for Federal Jurisdic-tion: The Ninth penned: "We have jurisdiction under 28 US.C. § 1291." See DktEntry 32-2, p. 1. MEMO-RANDUM.
ARGUMENT AND REASONS FOR GRANTING THE WRIT, RULE 14.1(h) AND SEE RULE 10(a).
1) The Ninth has greatly departed from the ac-cepted and usual course ofjudicial proceedings and has sanctioned a great departure by the lower District Court when it Ruled: "This is not a foreclosure case." Dkt 64 page 2 at 14, then allowed the Defendant Wells to illegally foreclose on 10/28/16 without reversing it as requested in DktEntry 10 p. 5 at 19 to p. 6 at 5 and See DktEntry 30 for the Ninth's ruling. This grave injustice calls for this Court to exercise its Supervi-sory Power in Rule 10(a) and Reverse Wells' Illegal
7
Foreclosure sale. A court can't say go "right" then let the Defendant Wells go "left"! This is a clear Violation of Petitioner's Due Process afforded him under the U.S. Constitution and is discriminating by selectively ap-plying the Doctrine of Res Judicata to only one party, the Plaintiff in this case while not applying it to both parties in the fairness of justice.
2) The Ninth once again abused its power by not Remanding the Case back to State Court after the Dis-trict Court Ruled Wells was NOT served at the time of removal. On 9/8/16 in Dkt 49 page 6 at 22-23, the Dis-trict Court ruled: "Wells Fargo had not been served when the case was removed and its consent was not re-quired as a matter of law. The Motion to Remand [Dht. #231 is DENIED." See DktEntry: 10, p. 8 at 1-13 for Petitioner's motion for the Ninth to Remand. How can a non party remove a case? It cannot! Wells plead in their own filing in District Court: "Consent. This mat-ter is being removed by Wells Fargo Bear Stearns and Stumpf. . . "See Dkt 1 p. 3 at 20, District Court. The law is precise in that a Defendant must be served in order to remove a case from State Court to Federal Dis-trict Court:
"28 U.S. Code § 1446 - Procedure for re-moval of civil actions: (b) REQUIRE-MENTS; GENERALLY. - (1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the de-fendant, through service... (2)(B) ... de-fendant shall have 30 days after receipt by or service on that defendant of the initial
pleading or summons described in paragraph (1) to file the notice of removal." (Emphases added!)
Also, Bear Stearns was NOT served! So how can they appear through Wells? Stumpf is not a party to the alleged loan so can't motion on it. See DktEntry 10 p. 8 at 12-13. Note in Dkt 70, page 2, #2 b, JP Morgan Chase headquarters was served with the Notice of Ap-peal. They have NOT made an appearance in this Ap-peal. See DktEntry 10 p. 8 at 19-23. Defaults needed for both!
This grave injustice calls for this Court to exercise its Supervisory Power and Reverse Wells Illegal Re-moval and Remand the case back to State Court and Void all Orders by the District Court and the Ninth based upon the illegal Removal. This is a clear Viola-tion of Petitioner's Due Process afforded him under the U.S. Constitution and is discriminating by selectively applying the Doctrine of Res Judicata to only one party, the Plaintiff in this case while not applying it to both parties in the fairness of justice and allow expenses & cost. See 28 USC 1447(c) Procedure after removal gen-erally, and Rule 10(a).
3) The Ninth abused its discretion and violated Plaintiff's Due Process by NOT applying the legal doc-trine of Res Judicata equally to both parties and all previous court orders.
Wells relies on 1 past order of WA State Superior Court Washington for Clark Country Case No. 08-2-07251-1 when Countrywide the past servicer of the
41
Petitioner's mortgage at the time ruling noted in Dkt 29-1, p.3 at 23-26 in District Court:
"2. The security interest evidenced by the Deed of Trust, with recording number 4246543 was not impaired by the Substitution of Trus-tee and Deed [of] Reconveyance recorded by PRLAP, Inc. on November 21, 2007 and re-mains a valid and enforceable first priority lien in the property located at 17005 NE 164th Ave Brush Prairie, WA, Dated July 9,2009."
Later on February 8, 2011 the Washington State Division II Court of Appeals Case No. 39763-3-11 ruled.
"On January 19, 2007, Countrywide pur-chased the loan from E-Loan; this purchase in-cluded the adjustable rate note, the deed of trust, and the right to service the loan. Coun-trywide subsequently pooled and securitized the loan, thus passing title to the loan to EMC Mortgage." (Emphases added!)
See DktEntry 10 p.13 at 4-9. (Dkt 28, p. 2 at 8-10 & p. 3 at 1-3. District) See Szmania v. Countrywide Homes Loans, In., 160 Wn. App. 1002 (2011). This Court needs to note that the court of appeals ruled EMC Mortgage (EMC) is the beneficiary of the NOTE and the DEED OF TRUST. As a matter of law then, as of 1/19/07 the subject NOTE and DEED OF TRUST (DOT) dated 11/6/2006, Recording Number 4246543, is now EMC's property making the former DOT, Record-ing Number 4246543, with E-Loan an outlawed mort-gage and thus Quieting of Title against said deed of trust per RCW 7.28.300 is appropriate as Plaintiff has
10
previously Motioned. Also nowhere in the record is there a transfer from EMC to Wells or Bear Stearns once again proving Wells and Bear Stearns do not have Legal Standing in Plaintiff's paid off Deed of Trust. See DktEntry 10 for Motion to Quiet title in the Ninth.
At the time of the two (2) above cited rulings, fore-closure and possession of the Plaintiff's home was never made in a claim by those previous Defendants thus it was not ripe for a review and therefore falls un-der the Ripeness Doctrine, thus Res Judicata does not apply to Plaintiff's motions to stop Wells illegal fore-closure. See Katt v. Dykhouse, 983 F.2d 690, 693 (6th Cir. 1992).
Thus Plaintiff's current claims could have not been brought during the above cited litigation. Fur-thermore this Court needs to apply the Doctrine of Res Judicata and bar Wells actions to Foreclose based upon the WA Division II ruling that EMC is the legal bene-ficiary. Please also note that the above rulings were fully adjudicated by the parties to the U.S. Supreme Court No. 11-6137.
To best argue against the Ninth, let use of or their own cases that is FOR PUBLICATION:
See Janell Howard v. City of Coos Bay, No. 14-35506, September 25, 2017.
http://cdn.ca9.uscourts.gov/datastore/opinions/ 2017/09/25/14-35506.pdf
"To answer this question, a number of other circuits have "adopted a bright-line rule
11
that resjudicata does not apply to events post-dating the filing of the initial complaint." Mor-gan v. Covington Twp., 648 F.3d 172, 177-78 (3d Cir. 2011); see also Bank of NY. v. First Millennium, Inc., 607 F.3d 905, 919 (2d Cir. 2010); Smith v. Potter, 513 F.3d 781, 783 (7th Cir. 2008); Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529-30 (6th Cir. 2006); Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992); cf Young-Hender-son v. Spartanburg Area Mental Health Ctr., 945 F.2d 770, 774 (4th Cir. 1991) (suggesting without 10 Howard v. City of Coos Bay decid-ing that resjudicata need not "preclude claims that could not have been brought at the time the first complaint was filed"); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4409 (3d ed. 2017) ('Most cases rule that an action need in-clude only the portions of the claim due at the time of commencing that action, frequently ob-serving that the opportunity to file a supple-mental complaint is not an obligation."). Indeed, the Seventh Circuit has gone so far as to call it the "federal rule," Ellis v. CCA of Ten-nessee LLC, 650 F.3d 640, 652 (7th Cir. 2011), and the Supreme Court spoke approvingly of this line of cases in Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016)."
"We have applied this rule in the context of California law, L.A. Branch NAACP v. L.A. Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir. 1984) (en banc),2 and as an alternative holding in a footnote, Cabrera v. City of
12
Huntington Park, 159 F.3d 374,382 n.12 (9th Cir. 1998), but not expounded on it further. We now confirm that for purposes of federal com-mon law, claim preclusion does not apply to claims that accrue after the filing of the opera-tive complaint.:"
"2 We apply the res judicata rule of the jurisdiction that heard the initial case. See Allen v. McCurry, 449 U.S. 90, 96 (1980)."
As seen in the Howard ruling, the Ninth has Vio-lated this Court's Rule 10(a) and has made rulings in my case that are in grave conflict with other Courts of Appeal Circuits, its own rulings and this very Court! I ask this Court to exercise its supervisory power and reverse all the Ninth rulings based upon Res Judicata along with the Remand back to State Court. See Rule 10(a).
4) The Petitioner's Due Process, especially Pro-cedural Due Process of the Fifth and Fourteenth Amendments to the United States Constitution was Violated by Ninth when it did not apply Res Judicata to both parties fairly and in a neutral way for neutral decision making. This is a Violation of the Equal Pro-tection Clause of the Fourteenth Amendments to the United States Constitution and was NOT within the administration of justice and their actions are a arbi-trary denial of Petitioner's safeguard to his property; his home. It is clear from just the Howard case alone that the Ninth abuses its discretion and discriminates
13
against Pro Se filers like the Petitioner based on the present rulings in this case.
I ask this Court to exercise its supervisory power and reverse all the Ninth rulings based upon Res Judicata along with the Remand back to State Court. See Rule 10(a). Along with: this Court Subpoena's both current & former CEO's of Wells Fargo, Mr. John G. Stumpf & Mr. Timothy J. Sloan & JP Morgan Chase CEO Jamie Dimon. The Plaintiff & the Nation deserves to know why Wells foreclosed on a disabled Veteran's fully paid off home, made death threats and why JP Morgan Chase denied involvement yet know of the litigation by service and did NOTHING to protect the Plaintiff!
The Ninth did NOT properly adjudicate Peti-tioner's Motion DktEntry 10 with all the many legal arguments in the 20 pages by simply ruling: "Appel-lant's motion for injunctive relief (Docket Entry No. 10) is denied." See DktEntry 30. Where's the material proof the Ninth examined and adjudicated each claim in that motion? This is in Violation of Petitioner's Due Process under the Fifth and Fourteenth Amendments to the United States Constitution for Procedural Due Process for neutral decision making and this was NOT within the administration of justice and their actions were a arbitrary denial of Petitioner's safeguard to his property; his home.
There is NO material proof in the record that the Ninth actually voted and tallied for Petitioner's Motion for Rehearing and En Banc Hearing with all
14
the Circuit Judges #40, not 1 voted? See DktEntry 32, 32-1 and 32-2. The Ninth's Denial of an En Banc Hear-ing is in Violation of Petitioner's Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and further a failure in Procedural Due Process for Neutral Decision Making and their ac-tions are an arbitrary denial of Petitioner's safeguards in his property; his home. See DktEntry 33.
The Ninth Violated its own rule in Fed. R. App. 35(a)(1) "en banc consideration is necessary to secure or maintain uniformity of the court's decisions."
The Ninth blatantly ignored this rule and the ne-cessity of uniformity in their application of the Doc-trine of Res Judicata. The lack of wanting uniformity is a lack of Due Process of .the Petitioner and blatant discrimination against a Pro Se Appellant, who is a Re-tired Naval Veteran of 22 years and Disabled. I ask this Court to exercise its supervisory power and reverse the Ninth's ruling on the En Banc consideration if this Court does not Remand back to State Court and Void all the District and Ninth's rulings for the illegal Re-moval. See Rule 10(a).
7) The Ninth by Denying an Emergency Motion for Protection of Petitioner's life and his family in DktEntry 8-1,8-2 EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 Motion for Restraining Or-der, Anti Harassment Order and an Anti Stalking Order after Wells Fargo made death threats! Was a blatant disregard for not only the Plaintiff's life but those of his family! The Ninth's Denial is a Violation of
15
Petitioner's Constitutional rights of Equal Protection that is required under the Fifth Amendment.
The non practice of Equal Protections under the Fifth Amendment is further a Violation of Due Process under the Fourteenth Amendment to the United States Constitution. Further this denial was a failure in Procedural Due Process for Neutral Decision Mak-ing and their actions were an arbitrary denial of Peti-tioner's value of his life. See DktEntry 8-1, 8-2 and 9.
If the Ninth can arrogantly grant a Temporary Re-straining Order in favor of the State of Hawaii against Donald J. Trump acting as the President of the United States of America, regarding Executive Order No. 13,780 issued on March 6, 2017 "Protecting the Nation from Foreign Terrorist Entry into the United States". (See State of Hawaii v. Donald J. Trump, et al CV. NO. 17-00050 DKW-KSC). Which in fact temporally pro-tected Foreign Terrorist over U.S. Citizen's! Then NOT issuing a Restraining Order under true and documented DEATH THREATS of this Petitioner by Wells Fargo, who is a Disabled. Retired Navy Veteran of 22 years is NOT "Equal Justice Under Law"!
It is totally biased against this Plaintiff and in Clear Violation of the Safeguards afforded the Plaintiff as a U.S. Citizen and Disabled Veteran under the Fifth Amendment and under the Fourteenth Amendment to U.S. Constitution.
Also it is in Clear Violation of the Oath these Ninth Circuit Judges took! If they blatantly and
16
willfully will NOT protect the Citizens of the United States of America, then they don't deserve to have ajob working for the United States of America! They have grossly and irresponsibly Violated their Oath of Office. Plaintiff asks this Court to use its Supervisory Power under Rule 8 to Suspend and Disbar and under Rule 10(a) and TERMINATE Circuit Justices of the Ninth BARRY B. SILVERMAN and ANDREW D. HURWITZ for violating the "good behavior clause." See DktEntry 9.
8) The Ninth by Denying an Emergency Motion for Protection of the Petitioner's Jurisdiction of the In-stant Case from a State Court, DktEntry 17-1 and 17-2. Did NOT Retain its Jurisdiction when it Denied a motion to stop a Parallel Case in State Court that was started by the Respondent Wells Fargo three (3) days after the Appeal in the Ninth. See Dkt 67 District. The Ninth's Denial was a Surrender of the Ninth's Juris-diction and subsequently makes the Ninth's latter Rul-ings and Orders VOID from Denial in DktEntry 21 and latter 5/18/17! This action was a further violation of the Due Process afforded the Plaintiff under the Fifth and Fourteenth Amendments to the United States Consti-tution.
The Abstention doctrine should have been applied by the State Court and the Ninth. See DktEntry 17-1, 17-2 and 21.
This Court must ask: "Can two courts have subject matter jurisdiction over Plaintiff's house at the same time?" Wells gave up jurisdiction when they removed
17
the case to District Court. See DktEntry 17-1 p. 8 at 12 - p. 9 at 6, referring to Dkt 1, 3 and Notice 2 on July 20, 2016.
28 US.C. § 1446(d) reads: "(d) NOTICE TO ADVERSE PARTIES AND STATE COURT. - Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all ad-verse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the re-moval and the State court shall proceed no fur-ther unless and until the case is remanded." (Emphases added!)
The case was NOT Remanded as we see in DktEntry 17-1 p. 9 at 14-23 referring to Dkt 49 p. 6 at 22-23, District Court.
"The case has NEVER been remanded as we see on 9/8/16 Dkt 49 at page 6 at 23. The US. District Court Denied the Motion to Remand Back to State Court saying: "The Motion to Remand [Dkt. #231 is DENIED" Thus denying the State Court Jurisdiction once again and maintaining Original Jurisdiction, Subject Matter Jurisdiction and Personal Jurisdiction in the US. District Court & the US. Court of Appeals for the Ninth Circuit until a Mandate is filed."
Therefore as a matter of law, the State Court has no Jurisdiction since the ILLEGAL and improper Re-moval and NO REMAND! This Court must protect Ju-risdiction by using its Supervisory Power under Rule 10(a) and Rule that the original Removal to Dis-trict Court is VOID since it was done by Wells
I'.]
Fargo when they were NOT SERVED and NOT a Party to the Action. See
1128 U.S. Code § 1446 - Procedure for re-moval of civil actions: (b) REQUIRE- MENTS; GENERALLY. -
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days af-ter the receipt by the defendant, through ser-vice...
(2)(B) . . . defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal." (Emphases added!)
AND than Secondly VOID ALL Orders of the Ninth and the District Court that are fruit of the un-lawful Removal.
"When it clearly appears that the court lacks juris-diction, the court has no authority to reach the merits. In such a situation the action should be dismissed for want of jurisdiction." Melo v. US, 505 F.2d 1026 (8th Cir. 1974)
"A court cannot confer jurisdiction where none ex-isted and cannot make a void proceeding valid. It is cleai and well established law that a void order can be challenged in any court". Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8,27 S. Ct. 236 (1907).
"There is no discretion to ignore lack of jurisdic-tion." Joyce v. US., 474 F.2d 215 (1973).
19
AND than Thirdly, VOID ALL Orders of the SECOND State Case that was running in parallel to the Ninth case at the same time, since a proper Re-mand after Removal was never accomplished in the FIRST or SECOND State Case, and therefore had no legal Jurisdiction to proceed until a Remand was accomplished in the either State Case. See 28 U.S.C. § 1447(c) a party only has 30 days after Removal to Re-mand.
See 28 U.S.C. § 1446(d) reads:" (d) NOTICE TO AD-VERSE PARTIES AND STATE COURT. - Promptly after the filing of such notice of removal of a civil action the de-fendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." (Emphases added!)
SECOND State Case: SUPERIOR COURT OF THE STATE OF WASHINGTON FOR CLARK COUNTY Case No. 16-2-02606-4. Filed: December 22, 2016. See DktEntry 10 p. 4 at 1-12.
AND
The subsequent SECOND State Appeal to: DI-VISION II, COURT OF APPEALS OF THE STATE OF WASHINGTON Case No: 50523-1-I1. Filed: June 23, 2017.
20
Note that Plaintiff Removed the SECOND State Case:
SUPERIOR COURT OF THE STATE OF WASH-INGTON FOR CLARK COUNTY Case No. 16-2-02606-4 case on May 17, 2017. See DktEntry 20-1, 20-2, 20-3 and 20-4. See also Dkt 72, 72-1, 72-2, 72-3 Dis-trict Court.
28 U.S. Code § 2283 - Stay of State court proceed-ings: A court of the United States may not grant an in-junction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where nec-essary in aid of its jurisdiction, or to protect or effectuate its judgments. (Emphases added!)
Wells can't play both sides of the field! 28 U.S.C. § 1446(d) Removal terminates the State Courts Juris-diction once Removal has occurred as we see it has in both State Court cases!
"the filing of a removal petition terminates the state court's jurisdiction until the case is re-manded, even in a case improperly removed." Lowe v. Jacobs, 243 F.2d 432, 433 (5th Cir.), cert. de-nied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed. 52 (1957). (Em-phases added!)
"BILBREY, J., concurring. I agree with Judge Ben-ton's thorough legal analysis that as 28 US.C. § 1446 is currently written, a state court lacks subject mat-ter jurisdiction after a notice of removal is filed, even if the removal is improper. See Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248 (11th Cir. 1988)."
21
https:I/wwwmcglinchey.comlffles/uploadsfReal_Property_ Newsletters/20 16/01/C ase-Wargo-v-Wells-Fargo. pdf (Page 20) (Emphases added!)
Wells and their attorneys at Lane Powell PC being unethical, dishonest and violating known court rules and legal doctrines have by their own actions of an il-legal Removal created a Legal VOID OF JURISDIC-TION over the SUBJECT MATTER of Plaintiff's home, known as: 17005 NE 164th Ave.. Brush Prairie, WA 98606.
Which thus: VOIDS ALL STATE AND FEDERAL COURT ORDERS as of the date of their illegal Re-moval of the FIRST State Case: See Dkt 1 Removal, 7/20/2016, Dkt 23 Motion to Remand, 8/8/2016. (Within 30 days!) See DktEntry 17-1, P. 8 at 13 to p. 9 at 6. Re-ferring to Dkt 1, 3, Notice 2 District Court. And after the SECOND State Case Removal dated: May 17, 2017. See DktEntry 20-1, 20-2, 20-3 and 20-4. See also Dkt 72, 72-1, 72-2, 72-3 District Court. The District Court and the Ninth could have used FRCP 62.1(a)(3) and FRAP 12.1(b) just for the purpose of a Remand to District Court to Remand to the State Court within 30 days of the SECOND State Case Removal by Peti-tioner. They did NOT!
No appearances by the out of business Defendants of E-Loan or Bear Stearns were ever made. Thus they cannot give consent for a Removal. See Dkt 23 p. 3 at 15-25, E-Loan. See DktEntry 10 p. 4 at 23 to p. 5 at 19 and page 8, at 17-23, Bear Stearns.
22
In 28 U.S.C. § 1446(a) Generally "A defendant or defendants desiring to remove any civil action from a State court shall file in the district court . . ." (Em-phases added!)
This statute requires ALL defendants! See Dkt 23 P. 3 at 20-21. Once again making Wells Removal on 7/20/2016 VOID! See Dkt 1 Removal.
Furthermore with Wells Illegal Removal and No appearances by the out of business Defendants of E-Loan or Bear Stearns, that leaves no parties with an alleged interest in Petitioners mortgage NOTE and DEED of TRUST to make valid claims for relief. FRCP 12(b)(6).
In the alternative: If this Court does not void all the Orders of the Ninth and the District Court Peti-tioner asks this court to Review Petitioner's com-plaint and Amended complaint for relief under its own standard of FRCP 12(b)(6): Skinner v. Switzer, 131 S. G. 1289, 1296 (20 11) quoted in a Ninth ruling: See Jerry Scott v. Mers, No. 13-15129 (9th cir. 2015) page 3-4. See DktEntry 10, p. 19 at 4 to p. 20 at 6 were Peti-tioner asked the Ninth for the same. (Complaint in Dkt 2-2, Ex 4 pages 1-65 (page 63 Damages $10,000,000.00) and Amended Complaint in Dkt 53 (page 57 Damages $10,000,000.00) [District Court.] DktEntry 30 Ninth's denial of DktEntry 10.
Wells has put this Plaintiff and his family through a living Hell! Plaintiff had a hypertensive crisis on June 6, 2016 where Plaintiff almost died and was
hospitalized for 4 days with blood pressures as high as 238/198.
Add to that the multiple death threats made by Wells, the constant harassment, the lower court's cow-ardness in not granting orders of protection. The illegal foreclosure, the eviction from my fully paid off home, the need to move 4 times since then. The fact that my home sits VACANT to this day! The extra stress and cost and time to litigate this including this Writ to the U.S. Supreme Court is why this Court should exercise its Supervisory Power under Rule 10(a) and award the Plaintiff the $10,000,000.00 in Damages paya-ble by EACH of the FIVE (5) Respondent's noted in both Plaintiff Complaint and Amended Complaint.
Also in the alternative: If this Court does not void all the Orders of the Ninth and the District Court. Petitioner asks this Court to Review Petitioner's DktEntry 10 where JP Morgan Chase declares they have nothing to do with Petitioner's loan. p. 4 at 23 to p. 5 at 19. Wells lacks standing p. 5 at 20 to p. 7 at 23. Continues p. 9 at 1 to p. 11 at 24. Accord and Satisfac-tion DktEntry 10 p. 12 at 1-11. Statute of Limitations p 12 at 12 to p. 13 at 24. Than all the arguments made for the violations of the State of Washington Deed of Trust Act (DOTA) p. 14 at 1 to p. 20 at 20. Also see
DktEntry 30 the Ninth's denial of DktEntry 10.
Petitioner also asks this Court to review all other motions and their denials too. Motion DktEntry 8-1, 8-2, Ninth's Denial DktEntry 9. Motion DktEntry 11-1,
