Petition for Writ of Certiorari — Francine Silver, Petitioner v. ResCap Borrower Claims Trust

No.

IN THE

SUPREME COURT OF TH

E UNITED STATES

(KPIW c J

~

ç i1iJt

(Your Name)

PETITIONER

vs.

ILE5I Oir1c

-RESPONDENT(S

)

ON PETITION FOR A WR

IT OF CERTIORARI TO

(1 (LI i

(NAME OF COURT THAT

( c&-r e

i'

LAST RULED ON MERI

PETITION FOR WRIT OF

TS OF YOUR CASE)

CERTIORARI

Ptcitu

(Your Name)

i3 EkMi14&uJ FiU?J

U

(Address)

LoS

(City, State, Zip Code)

(Phone Number)

-

-

QUESTIONS PRESENTE

D

FOR REVIEW

Did Petitioner receive Du

e Process in light of the

fact that the rules and law

pertaining to filing/respon

s

se times and default judgm

en

t

as

we

ll as the

contractually binding terms

of the settlement plan we

re all ignored?

LIST OF PARTIES

All parties appear in the ca

ption of the case on the co

ver page

JURISDICTION

The United States Court

of Appeals

2017. A timely petition for

-

2nd Circuit decid

ed my case on October 11

rehearing was denied by

Appeals on December 6, 20

17.

I

the United States Court of

,

Table of Contents

Statutes:

Bankruptcy Rules 3020(e), 6004(h), 7062..............

.............................................9

Code of Jud. Conduct, Canons 1, 2(A, B), 30(2)(a,

b), (E)..................................22

FifthAmendment.................................................

........................................24

Fourteenth Amendment......................................

..........................................24

FED. R. CIV. P. 12...................................................

................................16, 17

FEDRCIV.P56 ......................................................

.................................... 17

TITLE VII. GENERAL PROVISIONS........................

.....................................16

Local Rule 15(k) Middle District of North Carolina.

...........................................17

N.Y. CVP. LAW § 3215..........................................

........................................18

TITLE VII. Rule 55...................................................

...............................17, 19

See 28 U.S.C.A. 455(a)........................................

...............................20, 21, 22

N.D.N.Y.L.R. 56.1................................................

N.D.N.Y.L.R. 56.2................................................

........................................18

........................................18

N.D.N.Y.L.R. 7.1(b)(3)............................................

J.P.M.L. Rules of Procedure 6.1(c)........................

......................................17

..........................................18

11 U.S.C. § 502(a)...................................................

......................................6

18 U.S. Code § 157......................................................

..................................25

CASES

Baeshen v. Arcapita Bank B.S. C. (In reArcapita Ban

k, B.SC), 520 B.R. 15, 22

(Bankr. S.D.N.Y. 2014).........................................

..........................................9

Bauer v. Shepard, 620 F.3d 704, 712 (7th Cir.2010)

...........................................20

Bradley v. Milliken, 620 F.2d 1143, 1156-58 (6th Cir.)......

..................................21

Cabassa v. Smith et al, 9:08cv480 ............................

....................................... 17

Fang vAinerican Airlines, Inc. (1977, DC Cal) 431

FSupp 1334..........................20

Hedging Concepts, Inc. v. First Alliance Mortg. Co.,

49 Cal. Rptr. 2d 191, 198 (Cal.

Ct. App. 1996).....................................................

..........................................8

7

Henkel v. Lickrnan, 284 B.R. 299; 2002 Bankr. LEXIS 1026; 15Fla. L. Weekly Fed.

.B237.........................................................................................................22

In re Aerovias 323 B.R.879, 888 SDNY..............................................................9

In re Cumminas, 211 P.3d 1136 (Alaska 2009)..................................................22

In re MF Global Holdings, Ltd., Nos. 11-15059 (MG), 11-02790 (MG) (SIPA), 2012

WL 5499847, at * 3 (Bankr.S.D.N.Y. Nov. 13, 2012).............................................6

In re Swenson, 244 P.3d 959 (Wash. Ct. App. Div. 12010 ................................... 22

In re Hughes Aircraft Co., 197 U.S.P.Q. 797, 800 (Ct.C1.1977) ............................ 21

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942...........................20

Johnson v. HSBCBank USA (S.D. Cal.) 2012 US Dist LEXIS 36798 ............... 12, 13

Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3dCir.1990).....................21

Litekv V. United States, 510 U.S. 540, 555, 114 S.Ct. (1994)...............................22

Mistretta v. United States, 488 U.S. 361, 407, 109 S.Ct. 647, 102 L.Ed.2d 714......20

NYC v. Mickalis Pawn, lie (Docket Nos. 08-4804—cv, 09-1345—cv) ....................... 18

O'Keefe v. Arbon Equip. Corp., 399 F. Supp. 2d 478, 482 (S.D.N.Y. 2005).............18

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954));.............19

Palnewebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2dCir. 1996)..............................19

Palmer v. Reader's D.igestAssoc., Inc., No. 84 Civ. 8397, 1995 WL 686737, at *1

(S.D.N.Y. Nov. 20,1995 ................................................................................. 10

Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.)..............20

21

Treistman v. Fed. Bureau of Prisons 470.f 3d 471, 474 2nd cir. 2006.....................24

Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 712-14 (7th

Cir.1986) ..................................................................................................... 21

United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982) 462 U.S. 1118 (1983)..21, 22

U.S. v. Salemme, 164 F. Supp. 2d 49 (D. Mass. 1998)

. 21

Vogan v. Wells Fargo Ban/c, N.A. 2011 Us Dist LEXIS 132944 at *17

12

Zervos v. Verizon NY, Inc.,252 F.3d 163, 169 (2d Cir. 2001)...............................10

QUESTIONS PRESENTED FOR REVIEW .................................................................................................... 1

LISTOF PARTIES..........................................................................................................................................1

JURISDICTION.............................................................................................................................................1

STATEMENTOF THE CASE .........................................................................................................................2

THE CLAIM WAS DEEMED ALLOWED..................................................6

THE OBJECTION LACKED CREDIBILITY.................................................9

DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED....................16

JUDICIALRECUSAL................................................................................19

DUEPROCESS........................................................................................23

REASON FOR GRANTING PETITION........................................................................................................25

CONCLUSSION..........................................................................................................................................27

U.S. v. Salemme, 164 F. Supp. 2d 49 (D. Mass. 1998)

. 21

Vogan v. Wells Fargo Ban/c, N.A. 2011 US Dist LEXIS 132944 at *17

12

Zervos v. Verizon N Y, Inc.,252 F.3d 163, 169 (2d Cir. 2001)...............................10

QUESTIONS PRESENTED FOR REVIEW....................................................................................................1

LISTOF PARTIES ........................................................................................................................................... 1

JURISDICTION.............................................................................................................................................1

STATEMENTOF THE CASE.........................................................................................................................2

THE CLAIM WAS DEEMED ALLOWED..................................................6

THE OBJECTION LACKED CREDIBILITY.................................................9

DUEPROCESS........................................................................................23

REASON FOR GRANTING PETITION........................................................................................................25

CONCLUSSION..........................................................................................................................................27

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

J

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[II h3-been designated for publication but is not yet reported; or,

{is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

{ ] reported at

; or,

[ J has been designated for publication but is not yet reported; or,

[tinpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[11 reported at

; or,

[] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

court

appears at Appendix

to the petition and is

[] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

II] is unpublished.

________________________

________

____________

1.

to

to

-

STATEMENT OFT}C

-

ASE

-

History

This case stems from a cla

im by Petitioner against Re

that was filed in bankruptcy

sidential Capital, llc/GMA

C

court in May 14, 2012 case

made because GMAC repres

en

#12-12020. The claim was

ted themselves as being the

home loan after the original

servicer of Petitioners

lender "Nationwide"went ou

t of business.

Unfortunately erroneous mo

rtgage lates were recorded

on pe

titioners credit report.

Eventually that mess was

straightened out but at the

that had passed. GMAC the

expense of a lucrative deal

n refused to abide by the mo

rtgage terms, over-billed by

$3,000 per month and eventu

ally received about $300,00

who they were servicing the

0 but could not identify

loan for and still initiated

foreclosure proceedings wit

apparently fraudulent docu

mentation that was genera

ted on a need to have basis

Petitioner is still involved

in litigation in California wit

Ocwen who were and still

are un

.

h new purported servicer

sure of who they are servic

ing

about April 9, 2013, Ocwe

h

the loan for. On or

n sent plaintiff a letter sta

ting that "Idlue to a compu

programming error, the cre

ter

ditor for the referenced acc

misidentified. According to

would be Aurora but they

ount was possibly

the purported pool service

agreement, the correct party

went out of business in 20

broken. Petitioner has in the

07 and the chain of title wa

s

course of litigation filed bri

efs, motions and argumen

that have simply been ignore

d while respondent has in

exceed page limits on briefs

an

contrast been allowed to

d fail to respond to motions

2

ts

and briefs.

-

The litigation in California was dismissed after a motion was granted due to res

judicata and the Court of Appeals ruling (appendix A2). This decision is currently

under appeal Petitioner would like the courts in New York to also recognize the

-

doctrine of res judicata. Before the Bankruptcy Court granted respondents objection

to the claim, two courts in California had found the assignments in question to be

fraudulent but the bankruptcy court insisted in rehearing the arguments even

though the objection was too late and violated the terms of the settlement plan. On

December 17, 2013 the Bankruptcy settlement was confirmed and became effective.

Plaintiffs claim was listed on the schedule of assets and liabilities as an allowed

claim on the effective date and according to the plan terms met the definition of an

allowed claim and was exempt from objection under the controlling language of the

plan Article VIII-2. and should have been paid from the allowed claims fund.

On March 7, 2014, a motion for payment in compliance with the December 17, 2013

settlement plan terms was originally made in bankruptcy court. Petitioner

understands any party can respond to a motion but the time to do so is within 10

days. Respondent was unwilling or unable to ever respond. Finally, on March 26,

2014 Judge Glenn issued an order (appendix 6) denying the uncontested motion

even though its arguments were conceded to by the failure by any party to ifie a

timely response. A motion to reconsider was made on April 9th, 2014 and was denied

on April 24, 2014 (appendix 5).

An appeal to the District Court was filed on May 20, 2014 case #14-03630. The

original docket sheet (appendix ii) listed appellants brief as having been submitted

3

on 6/2/2014 with appellees brief due on

6/16/2014 but again appellee failed to

respond so on 6/19/2014 a motion for defa

ult judgment was filed. Rather than gran

t

default judgment on 6/27/2014 the cou

rt decided to retroactively extend the due

date to 11/06/2014 (appendix 12). Even

with the 5 month extension appellee faile

d

to ever file a reply brief but the case was

dismissed because of lack of jurisdiction

.

Despite violating the controlling languag

e in the settlement plan Article VIII-2,

as conceded to by the failure to respond

and

to the motion for payment, Petitioners clai

m

was still eventually objected to on Januar

y, 22, 2015. An evidentiary hearing was

held on April 16, 2015 to determine the

validity of the signatures of a purported

Jacqueline Keeley that were used on assi

gnments. Several judges in California and

a handwriting expert had already determi

ned the signatures had been done by

more than one person and Petitioner argu

ed that even if the signatures matched,

the assignments occurred in 2011 but the

trust that had a closing date of 2006

loan was securitized in 2006 and put in

Any transfers or assignments in or out

-

that date would violate relevant pool and

after

trust laws. Also, if the assignment real

ly

occurred for "valuable consideration" this

confirmation report. If the signatures are

a

income was not reported on the post

real, then the court is ignoring unreported

asset sales and violations of pool and trus

t laws. Nonetheless Judge Glenn granted

the objection and Judge Nathan later affir

med the decision when

4

-

years old and pro Se. The case was assigned to Judge Nathan on 7/15/2015 with the

brief due 13 days later on 7/28/2015. This is not an ample amount of time to write a

brief, mail it on time and research the history of the judge and from petitioners

understanding it is the judge's responsibility to recuse themselves from cases where

their impartiality can be reasonably questioned even if not called to do so. The

Court of Appeals gave even less time! The case was assigned to the new panel of

judges on October 2, 2017 and then only 9 days later on October 11, 2017 an order

denying the appeal (appendix 2) was issued. Petitioner effectively had less than a

week to research and file any motions about the new panel of judges.

THE CLAIM WAS DEEMED ALLOWED AND THE OBJECTION VIOLATED THE

PLAN

The applicable legal standard is that a filed proof of claim is "deemed allowed,

unless a party in interest objects." 11 U.S.C. § 502(a). The party objecting to the

proof of claim "bears the initial burden of providing evidence to show that the proof

of claim should not be allowed." In re MF Global Holdings, Ltd., Nos. 11-15059

(MG), 11-02790 (MG) (SIPA), 2012 WL 5499847, at * 3 (Bankr.S.D.N.Y. Nov. 13,

2012) The Respondent has completely failed to meet this burden. The extensive

documentation of the litigation Respondents have included in their Objection only

helps prove how Petitioner has a valid claim and how respondents engaged in fraud

of biblical proportions but does little to satisfy respondents initial burden to provide

evidence of why the claim should not be allowed.

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The provisions of Article VIII govern the resolution of Disputed Claims to the extent

not otherwise provided for in the Plan or in any other trust agreement (such as the

RMBS Claims Trust Agreement, the Private Securities Claims Trust Agreement or

the Borrower Claims Trust Agreement) or plan of allocation (such as the RMBS

Trust Allocation Protocol) approved under the Plan. To the extent the provisions of

any such trust agreement or plan of allocation address specifically matters set forth

in this Article VIII, the provision of such trust agreement or plan of allocation shall

govern. 2. Allowance of Claims "On or after the Effective Date, the Liquidating

Trust shall have and shall retain any and all rights and defenses that the Debtors

had with respect to any Claim, except with respect to an v Claim deemed Allowed as

of the Effective Date or (ii) waived, relinquished, exculpated, released,

compromised, settled. or Allowed in the Plan or 112 a Final Order. Except as

otherwise provided in the Plan or in any order entered in the Chapter 11 Cases

prior to the Effective Date, including fhe Confirmation Order, no Claim shall

become an Allowed Claim unless and until such Claim is deemed Allowed (a) under

the Plan or the Bankruptcy Code or (b) by Final Order of the Bankruptcy Court,

including the Confirmation Order.

The above paragraph makes it very clear that the claims objection deadline applies

to any claim EXCEPT WITH RESPECT TO CLAIMS DEEMED ALLOWED ON

THE EFFECTIVE DATE (like petitioners claim).ARTI CLE VIII governs in the

event of a dispute and states, "The provisions of this Article VIII shall govern the

resolution of Disputed Claims to the extent not otherwise provided for in this Plan

7

or in any other trust agreement." The plan also states

"(a)As SOOfi as practicable

folio wing the Effective Date. The Borrower Claims Trust shall

make a Borrower

Claims Payment to each holder of a Borrower Claim that is Allow

Effective Date." (b) Each holder of a Borrower Claim that was

Effective Date and that is subsequentlyAllo wed, in whole or

ed as of the

not Allowed as of the

in part, shall receive

from the Disputed Claims Reserve a Borrower Claims

Payment in respect of such Claim following the date such Claim

Such Borrower Claims Payments shall be made at such time

becomes Allowed.

and from time to time

as determined by the Trust Committee, provided that a Borro

wer Claims Payment

shall be made no later than ninety (90 days following date on

which the respective

Borrower Claim becomes Allowed"

Also, in section YY. Objections. All parties have had a full and

fair opportunity to

litigate all issues raised in the objections (excluding any timely

filed objections that

relate solely to the assumption of any executory contract), or

which might have been

raised, and the objections (excluding any timely filed objections

that

the assumption of any executory contract) have been fully and

fairly litiated.

"When parties have an actual contract covering a subject, a court

under the guise of equity jurisprudence

relate solely to

cannot

-

not even

substitute the court's own concepts of

-

fairness regarding that subject in place of the parties' own contr

act." Hedging

Concepts, Inc. v. First Alliance Mortg. Co., 49 Cal. Rptr. 2d 191,

198 (Cal. Ct. App.

1996). The confirmed plan created a legally binding contract

and all the rules of the

plan should be enforced, especially the controlling language

in Article VIII. Order

Binding on All Parties. Subject to Article X.A of the Plan, and notwithstanding

Bankruptcy Rules 3020(e), 6004(h), 7062 or otherwise, upon the occurrence of the

Effective Date, the terms of the Plan and this Order shall be immediately effective

and enforceable and deemed binding upon, and inure to the benefit of: (a) the

Debtors; (b) the Plan Trusts; (c) any and all holders of Claims or Equity Interests.

Not only should the claim have been paid, the arguments in the uncontested

motions were conceded to and the claims objection is in violation of the terms of the

settlement plan.

The Objection lacked sufficient credibility for an impartial judge to Refute the

Claim.

A proof of claim constitutes prima fade evidence of the amount and validity of the

claim. The burden of proof shifts to the claimant when an objection presents

evidence and arguments that tend to refute the claim but in the case at Bar no

credible evidence has been presented in the belated opposition and as already

discussed, the Opposition itself is in blatant violation of the binding contractual

terms of Article VIII-2 of the plan which exempts the claim from objection and

mandates that the claim should have already been paid. As petitioner argued The

-

Plan should be interpreted as a contract (see Baeshen V. Arcapita Bank B.S C. (In

re Arcapita Bank, B.S. £, 520 B.R. 15, 22 (Bankr. S.D.N.Y. 2014), See In re

Aerovias Nacionales de Colom., S.A. Avianca, 323 B.R. 879, 888 (Bankr. S.D.N.Y.

2005) (finding that it is crucial that the contract "be read to give effect to all its

provisions and to render them consistent with each other."); see also Painewebber

Inc. v. Bybyk, 81 F.3d 1193, 1199 (2dCir. 1996). In order for the terms to be

-

consistent, under the settlement plans Article VIII, claims deemed allowed on the

effective date have to be paid immediately and are exempt from future objection.

The Claims Objection Deadline only applies to timely disputed claims or claims that

were for some reason not included along with petitioners claim on the schedule of

allowed claims as of the December 17, 2013 effective date. Petitioner understands

the rules of the court, the terms of her loan, the plan and the plain language

meaning of Article VIII.

Petitioner fully understands that a district court will not set aside the bankruptcy

court's findings of fact unless they are clearly erroneous. See Fed. R. Bank P. 8013.

A finding is "clearly erroneous" when "the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has been committed."

Palmer v. Reader's DirestAssoc., Inc., No. 84 Civ. 8397, 1995 WL 686737, at *1

(S.D.N.Y. Nov. 20, 1995) A court abuses its discretion when its factual findings are

"clearly erroneous" or "cannot be located within the range of permissible decisions."

See Zervos v. Verizon NY, Inc.,252 F.3d 163, 169 (2d Cir. 2001). The Judge must

however be impartial to determine whether the findings are factual. Clearly both

Judge Glenn and Judge Nathan have shown by their actions that they lack

impartiality, should have recused themselves and are incapable or unwilling to

recognize blatant evidence of fraud that has already been identified in other courts.

The declaration of a purported "Jacqueline Keeley, whose wildly dissimilar

signatures helped establish the finding of fraud by Judge Donovan in California

10

Bankruptcy Court

See Exhibit 5-C page 15 of the Opposition "I would have to

-

conclude that either somebody was forging signatures, or this is a blatant example

of robo-signing. I don't know which, I don't know why, but that's what the evidence

establishes." Judge Goodman in California Superior Court also found fraud.- See

Exhibit 5-H page 2 of the Objection where the Judge rules "The matter having been

argued and evidence having been presented to the Court by both parties, the Court

finds that there is substantial evidence that one or more documents on which

defendants rely for their claims are fraudulent or contain fraudulent signatures".

Petitioner should not be forced to relitigate these findings and GMAC's evidence

should not be taken at face value and under the unclean hands doctrine it should be

ignored in entirety. More specifically, GMAC fraud in documenting residential loan

assignments has been reported. An examination of New York court records by the

investigative journalism bureau Pro Publica found hundreds of assignment

documents that were filed in the name of Ameriquest Mortgage Company by GMAC

and other mortgage servicers years after Ameriquest had ceased to exist. In at least

one incident, in June 2011, a GMAC employee reportedly proposed filling the gap

left by a defunct lender by filing a false "lost assignment" affidavit. (ProPublica' s

report can be found at http://www.propublicaorglarticle/ gmac-mortgagewhistleblower-foreclosure.) And all this is on top of the widely reported disclosure

that GMAC employees had been "robo-signing" thousands of affidavits in which

they claimed to have reviewed loan documentation and verified that it was correct.

See, e.g., David Streitfield, "GMAC Errors Leave Foreclosures in Doubt,"

11

N.Y.TIMES, Sep. 25, 2010 (describing testimony by Jeffrey Stephan, the head of

GMAC' s "Document Execution unit and Keeley co-worker", that he had personally

signed as many as 10,000 affidavits per month), available at

http://www.nytimes.com/2010/09/25/business/25mortgage .html?scp=3&sq=gmac%20

jeffrey%20stephan%20forec1osure&st=Search.How can they have any credibility?

There is also evidence that "Jacqueline Keeley," if she existed at all, purported to

be

both an officer of MERS and an officer of GMAC. If so, it would appear that GMAC

derived no interest in the loan from MERS as indicated on the assignment (acting

on behalf of a principal it did not know) but was in reality simply assigning the loan

to itself. Further, there is evidence that the loan was securitized and was owned

by

US Bank as trustee on behalf of investors in a pool of securitizcd loans with Aurora

as master servicer and in charge of collecting payments and conducting foreclosures

but who went out of business in 2007. The purported assignment to GMAC occurre

d

long after the closing date of the mortgage-backed security pool, "giving rise to a

plausible inference that at least some part of the recorded assignment was

fabricated." Vogan v. Wells Fargo Ban/c, N.A. (E.D.Cal.) 2011 US Dist LEXIS

132944 at *17. See also Johnson v. HSBC Bank USA (S.D. Cal.) 2012 US

Dist

LEXIS 36798. In Vogan, supra, the plaintiff, facing foreclosure, sought a declara

tory

judgment to determine who owned his mortgage loan. Wells Fargo Bank, the

original lender, claimed that it bad sold the loan to US Bank as Trustee for a

mortgage-backed securitization trust and recorded the assignment of the deed of

trust, in 2011. But the plaintiff alleged that the securitization trust had a closing

12