Petition for Writ of Certiorari — William J. Golz, Petitioner v. Marcia L. Fudge, Secretary of Housing and Urban Development

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Supreme Court, U.S.

FILED

MAY 1 3 2021

No. 3iO‘ UpjQ

OFFICE OF THE CLERK

3ta W*t

Supreme Court of tfje ^nttetr States;

William J. Golz,

Petitioner,

Marcia L. Fudge,

in her official capacity as Secretary of the

United States Department of Housing

and Urban Development,

Respondent:

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

GINA

William Golz, Ph.D.

Petitioner, Pro Se

29714 North 152nd Way

Scottsdale, Arizona 85262

Phone: (480) 816-5019

QUESTIONS PRESENTED

This case is timely and of national importance. Ten million homeowners are

behind on their mortgage payments and 2.7 million of 11-million Governmentbacked mortgages are in forbearance.1 Housing and Urban Development (HUD)

practices are an inevitable exemplar to all lenders. Acting as the named lender,

HUD broke in, changed the lock, and an agency attorney falsely stated to law-en

forcement that HUD had foreclosed and taken possession of the Golz-home (forcible

entry). HUD then requested a search and opened every door in the home for the po

lice officer (search). The lower courts struck Petitioner's defenses denying discovery

for his extensive body of facts, positing that a HUD foreclosure is protected under a

congressional authorization of broad equitable relief to serve an important national

policy and that the forcible entry was permitted by the deed of trust. Colorado is a

“lien-theory” state where the Colorado Supreme Court “prohibits a mortgagee from

acquiring possession of mortgaged property until a foreclosure and sale have oc

curred.” Martinez v. Continental Enter., 730 P.2d 308, 314 (Colo. 1986) (en banc).

1. Whether a Federal Housing Administration (FHA) loan is an important

national policy which gives license to a lender's forcible entry and seizure of an oc

cupied home prior to foreclosure and sale and without court order—in violation of a

forcible entry and detainer statute (Colo. Rev. Stat. §§ 13-40-101, et seq.) and the

Fourth Amendment. Soldal v. Cook County, 506 U.S. 56, 67 (1992); and whether

federal courts can enforce an FHA deed of trust signed by a decedent and purport

edly granting the lender a possessory right to forcibly enter and direct law enforce

ment to search an occupied home. Chapman v. United States, 365 U.S. 610 (1961).

2. Whether equitable estoppel will lie to prevent the Secretary of HUD, act

ing pursuant to the National Housing Act's sue-and-be-sued clause (12 U.S.C. §

1702) as named lender on an FHA-insured loan, from unjustly evading an autho

rized, written, loan-payoff agreement that meets the requirements of a contract;

and if estoppel is a defense to foreclosure, whether facts pleaded that satisfy Fed

eral Rule of Civil Procedure (Rule) 9(b), which include documentation that HUD ad

ministrators fraudulently represented agency regulations to reject Petitioner's ten

der of the loan payoff, can be dismissed on a Rule 12(f) motion prior to discovery.

3. Whether a defendant whom was the former executor and sole devisee of a

decedent's estate has standing to appeal the denial of a remedy for his palpable in

jury traceable to the District Court's affirmative acts asserting administrative au

thority over a probate estate for an eleven-month period following the defendant-ex

ecutor's filing in the State Court of a closing statement conforming to state law and

executed with his sworn oath that the estate had been fully administered.

Joseph R. Biden, “Fact Sheet: Biden Administration Announces Extension of COVID-19

Forbearance and Foreclosure Protections for Homeowners.” The White House, Feb. 16,

2021, www.whitehouse.gov/briefing-room/statements-releases/2021/02/16/fact-sheet-bidenadministration-announces-extension-of-covid-19-forbearance-and-foreclosure-protectionsfor-homeowners/.

(i)

PARTIES TO THE PROCEEDING

Petitioner, William J. Golz, was defendant-appellant below.11

Respondent, Marcia L. Fudge, in her official capacity as Secretary of HUD,

replaces former Secretary Benjamin S. Carson, whom was plaintiff-appellee below.

RELATED PROCEEDINGS

United States District Court (D. Colo.):

Carson v. Golz, No. 17-cv-01152-RBJ-MEH (Apr. 8, 2019)

United States Court of Appeals (10th Cir.):

In re William J. Golz, No. 18-1373 (Oct. 25, 2018) (denying petition for a

writ of mandamus and prohibition)

In re William J. Golz, No. 19-1083 (May 13, 2019) (denying petition for a

writ of mandamus, including for an evidentiary hearing, which was

mooted by the order and final judgment, D. Colo. Apr. 8, 2019)

Carson v. Golz, No. 19-1242 (Sept. 21, 2020), petition for rehearing denied,

Dec. 14, 2020

Supreme Court of the United States:

Golz v. Carson, No. 18A692 (Feb. 19, 2019) (denying application to stay

proceedings in the District Court)

Golz v. Carson, No. 20A133 (Jan. 15, 2021) (denying application to stay

the mandate)

COURT OF APPEALS BRIEFS

Carson v. Golz, No. 19-1242 (10th Cir. Sept. 21, 2020):

Brief for Appellant (Docket No. 10710059) (Docket Date: 01/15/20)

Attachments (separately bound volume that includes P. Ct. filings)

Addendum for Appellant (10710060) (01/15/20) (2 audio-CDs; Tr.s; Stmt,

of Evid.; and 28 U.S.C. § 1746(2) Decl.s under penalty of perjury)

Brief for Appellee (10717453) (02/12/20)

Reply Brief for Appellant (10732238) (04/10/20)

Appellant's Petition for Rehearing En Banc (10790585) (12/01/20)

Concurrent with this petition, Petitioner is notifying the Clerk of the Court and all parties

that the District Court entered a default on August 15, 2017 for Marcus J. Golz and

Matthew J. Golz whom have no interest in the outcome of this petition. Supreme Court

Rule 12.6.

(ii)

TABLE OF CONTENTS

Page

Questions Presented.......................................................................................

(i)

Parties to the Proceeding................................ .............................................

(ii)

Related Proceedings.......................................................................................

(ii)

Court of Appeals Briefs...................................... ..........................................

(ii)

Table of Authorities:

Cases..................................................................................................................

(vii)

Constitution, statutes, regulations, and rules...........................................

(x)

Other authorities...................... .....................................................................

(xi)

Table 1. HUD's break-in, lock-out, and law-enforcement search...........

(xii)

Table 2. The Secretary's Payoff Agreement with Petitioner...................

(xiv)

Glossary...............................................................................................................

(xvi)

Opinions Below............................................................................. ....................

Jurisdiction........................................................................................................

Constitutional and Statutory Provisions Involved............................

Statement of the Case: Questions l and 2...............................................

Facts Pleaded by Petitioner (dismissed prior to discovery).............

A. HUD's fraudulent evasion of the Secretary's Payoff Agree

ment with Petitioner.........................................................................

B. HUD's break-in, lock-out, and effectuation of a law-enforce

ment search of Petitioner's home....................................................

II. Proceedings Below (Petitioner's case terminated on a 12(f) mo

tion) .............................................................................................................

A. The lower courts' application of summary judgment to HUD's

12(f) motion is in conflict with established precedent.................

1. HUD's 12(f) motion challenged only the legal suffi

ciency of Petitioner's defenses and made no attempt to

demonstrate that there were no disputed facts......................

2. The panel contravened the summary-judgment stan

dard adopted by the Circuit as set forth by the Court

in Adickes v. Kress Co...................................................................

(hi)

3. The Rule 12(f) standard required the lower courts to

accept Petitioner's well-pleaded factual allegations as

true and correct...........................................................................

B. The defense of unclean hands: HUD's forcible entry, seizure,

and law-enforcement search of Petitioner's home:

1. The court's assertion that HUD's DOT can grant the

claimed right of forcible entry, seizure, and search of

the Golz-home conflicts with state law and the Court's

Fourth Amendment precedents................................................

2. The panel's extension of McKennon v. Nashville Ban

ner's important-national-policies' criterion to an FHA

lender's forcible entry and search of a family's home is

at odds with congressional intent.............................................

3. The District Court misstated and misapplied a case

“striking an unclean hands defense in the context of

the [Fair Housing Act] ”..............................................................

4. The panel referred to an unmet “high standard for

proceeding with” unclean hands where the District

Court cited Rule 9(b)...................................................................

5. Petitioner's facts, as pleaded, satisfied Rule 9(b)..................

6. Unclean hands is a defense to an FHA foreclosure and

to a contract; the Secretary has a legal remedy in the

Payoff Agreement........................................................................

C. The equitable defense of estoppel is available to prevent

HUD from unjustly evading its obligations under the Payoff

Agreement:

1. HUD misused the Payoff Agreement inducing Peti

tioner's detrimental reliance from which the Secretary

stands to benefit..........................................................................

2. Equitable estoppel:

a. Federal law abhors a fraud or falsehood to accrue fi

nancial gain from the losses of another............................

b. The Government can be equitably estopped by the au

thorized acts of its agents....................................................

c. Equitable estoppel is available against the Govern

ment even when there is a public interest or title to

land is involved......................................................................

(iv)

3. The panel cited three cases and not one supports dis

missal of an estoppel-defense before discovery:

a. The panel misconstrued FDIC u. Hulsey which cited to

FHA, Region No. 4 v. Burr and remanded the estoppel

for trial....................................................................................

b. The Court of Appeals elided a quote from Wade Pedi

atrics v. Dep’t of Health & Human Servs. and materi

ally misstated and misapplied Heckler v. Community

Health Services......................................................................

c. Adams Cty. Comm'rs v. Isaac does not support the

panel's decision to strike Petitioner's equitable-estoppel defense prior to discovery.............................................

4. Petitioner's facts satisfied the mandatory federalpleading standard but, as in Erickson v. Pardus, the

Circuit interposed its own arbitrarily high standard...........

Statement of the Case: Question 3

The panel's decision that the closed Estate was a third party and

that Petitioner lacked standing to appeal conflicts with the plain

language of settled law..........................................................................

II. Probate proceedings in the State Courts...........................................

III. Proceedings in the District Court:

A. The April 16, 2018 hearing:

1. The court warned Petitioner of a potential defaultjudgment because “an estate cannot be represented by

a pro se litigant”.........................................................................

2. HUD's stated reason for alleging Verna Mae breached

the Note as a claim on the Estate was to evade Peti

tioner's affirmative defenses arising from another con

tract—the Payoff Agreement....................................................

B. The court overruled Petitioner's closing of the Estate pur

suant to state law and disregarded his assertion that the mo

tion to dismiss the Estate should be evaluated pursuant to

Rule 12(b)(1)......................................................................................

C. The judicial officers violated Attorney Rule 15 for the pur

pose of directing a lawyer to inform Dr. Golz that the closed

Estate required licensed counsel...................................................

(v)

1. The District Judge affirmed his authority to decide

whether to require licensed counsel for the closed Es

tate ................................................................................................

2. Meredith Callan told Dr. Golz, “I was contacted by

Judge Hegarty” and “You do need representation on

the Estate matter”.....................................................................

3. Magistrate Judge Hegarty stated, “the Government is

simply going to win this case because an estate can’t

represent itself”.........................................................................

4. The judicial officers violated Attorney Rule 15....................

D. The District Judge denied Petitioner a reconstruction and ev

identiary hearing and leave to amend to fashion a remedy for

his injury from the court's actions in 2018 and 2019 absent

any jurisdiction.................................................................................

E. The District Judge's order denying the motion to reopen the

final judgment, stating that Petitioner's recording of the Jan

uary 23, 2019 “proceedings were surreptitiously recorded in

Magistrate Hegartys court,” is in conflict with settled law......

Reasons for Granting the Petition..........................................................

Conclusion........................................................................................................

App.

Carson v. Golz, No. 19-1242 (10th Cir.)

Order and Judgment (Sep. 21, 2020)

Carson v. Golz, No. 17-cv-01152-RBJ-MEH (D. Colo.)

Order (Apr. 8, 2019)

Final Judgment (Apr. 8, 2019)

11a

26a

Carson v. Golz, No. 19-1242 (10th Cir.)

Order on Petition for Rehearing En Banc (Dec. 14,2020)

Statutory Provisions

28a

30a

(vi)

TABLE OF AUTHORITIES

CASES

Page

Federal

Adickes v. S.H. Kress Co.,

398 U.S. 144 (1970)....................................................................

Arbaugh v.Y & H Corp.,

546 U.S. 500 (2006)....................................................................

Bd. of County Comm 'rs of County of Adams v. Isaac,

18 F.3d 1492 (10th Cir. 1994).................................................

Bein u. Heath,

47 U.S. 228 (1848)................... ..................................................

Byers v. McAuley,

149 U.S. 608 (1893) ....................................................................

Chapman v. United States,

365 U.S. 610 (1961)............................................................... ....

Deseret Apartments, Inc. v. United States,

250 F.2d 457 (10th Cir. 1957).................... .............................

Dickerson v. Colgrove,

100 U.S. 578 (1879)...................................................................

Elhelbawy v. Pritzker,

No. 14-cv-01707-CBS (D. Colo. Sep. 21, 2015)......................

Equal Employment Opportunity Commission u. Genesco, Inc.,

Civ. No. 09-952 WJ/RHS (D.N.M. May 20, 2010)................

Erickson v. Pardus,

551 U.S. 89 (2007) (per curiam)...................... .......................

Ex parte McCardle,

7 Wall. 506 (1869)......................................................................

FDIC v. Hulsey,

22 F.3d 1472 (10th Cir. 1994).................................................

FHA, Region No. 4 v. Burr,

309 U.S. 242 (1940)...................................................................

Frazier v. Heebe,

558 U.S. 183 (2010)................................................ ...................

George v. Urban Settlement Servs.,

833 F.3d 1242 (10th Cir. 2016)...............................................

Hanlin v. U.S.,

316 F.3d 1325 (Fed. Cir. 2003)........................................

(vii)

23, 24

32, 33

(i), 7, 12

19-20

8-9

23-24

24, 25-26

21, 22

15, 25

Heckler v. Cmty. Health Servs. of Crawford County, Inc.,

467 U.S. 51 (1984)..................................................................................

Hertz Corp. u. Friend,

559 U.S. 77 (2010).................................................................................

Hollingsworth v. Perry,

558 U.S. 183 (2010)................................................................................

38, 40

Kirk v. Hamilton,

102 U.S. 68 (1880)..................................................................................

Lawndale Restoration Ltd. P'ship ex re Boulevard v. United States,

95 Fed.Cl. 498 (Fed. Cl. Nov. 23, 2010)..............................................

Mahoning Inv. Co. v. United States,

3 F. Supp. 622 (Ct. Cl. 1933)................................................................

19-20

Mazel v. Hopkins {In re Hopkins),

10-11, 12

No. 7-13-11871 TA (Bankr. D.N.M. May 29, 2014)..........................

McFadden v. Meeker Housing Authority, No. 16-cv-2304-WJM-GPG,

13-14

2018 WL 3368411, (D. Colo. July 10, 2018)......................................

McKennon v. Nashville Banner Publ’g Co.,

513 U.S. 352 (1995)................................................................................

12-13

Oil Shale Corporation v. Morton,

370 F. Supp. 108 (D. Colo. 1973).........................................................

Paggen v. Bank of Am.,

No. 17-cv-01241-RBJ (D. Colo. Aug. 27, 2018),

affd, No. 18-1390 (10th Cir. July 31, 2019).......................................

Penny v. Giuffrida,

897 F.2d 1543 (10th Cir. 1990)............................................................

20, 22

Portmann v. United States,

674 F.2d 1155 (7th Cir. 1982)................................................. ............

Precision Instrument Manufacturing Co v Automotive Maintenance Ma

chinery Co., 324 U.S. 806 (1944).....................

Quick v. Grand Junction Lodging LLC,

No. 13-cv-02917-RBJ (D. Colo. Dec. 18, 2014)

Reed v. Bennett,

312 F.3d 1190 (10th Cir. 2002)........................

Reiter v. Cooper

507 U.S. 258 (1993)............................................

Schwartz v. Celestial Seasonings, Inc.,

124 F.3d 1246 (10th Cir. 1997)

14, 15, 25

Soldal v. Cook County,

506 U.S. 56 (1992)....................

(i), 7, 12

(viii)

Steel Co. v. Citizens for Better Env %

523 U.S. 83 (1998)..............................................................

Stoll v. Gottlieb,

305 U.S. 165 (1938)............................................................

Sutton v. English,

246 U.S. 199 (1918)............................................................

Tosco Corp. v. Hodel,

611 F. Supp. 1130 (D. Colo. 1985),

appeal vacated as moot, 826 F.2d 948 (10th Cir. 1987)

Trujillo v. City of Denver,

No. 14-cv-02798-RBJ-MEH (D. Colo. Nov. 6, 2015)....

United States v. Georgia-Pacific Company,

421 F.2d 92 (9th Cir. 1970)...............................................

United States v. James Daniel Good Real Property,

510 U.S. 43 (1993)..............................................................

United States v. John J. Johnson,

No. H-92-152 (S.D. Tex. Feb. 15, 1994)..........................

United States v. Stubbs,

776 F.2d 1472 (10th Cir. 1985)........................................

Wade Pediatrics v. Dep’t of Health & Human Servs.,

567 F.3d 1202 (10th Cir. 2009).........................................

Weil v. Neary,

278 U.S. 160 (1929)............................................................

Wexner v. First Manhattan Co.,

902 F.2d 169 (2d Cir. 1990)..............................................

Yeager v. Fort Knox Security Products,

602 F. App’x 423 (10th Cir. 2015) (unpublished)..........

28, 32

27-28

20-21

16, 17, 21

22-23

State

Ader v. Estate of Felger,

375 P.3d 97 (Ariz. Ct. App. 2016)..........................

Faxton v. Faxon,

28 Mich. 159 (Mich. 1873).......................................

In re Estate of Verna Mae Golz,

PB2014-051759 (Ariz. Super. Ct. 2018).... ..........

Ancillary Filing,

2014-PR-160 (Boulder County Dist. Ct. 2018)

In re McGathy,

226 Ariz. 277 (Ariz. 2010).......................................

(ix)

28-29

Martinez v. Continental Enter.,

730 P.2d 308 (Colo. 1986) (en banc)

Matter of Estate of Torstenson,

125 Ariz. 373 (Ariz. Ct. App. 1980)

Stachnik v. Winkel,

394 Mich. 375 (Mich. 1975).............

(i), 6, 7

15-16

CONSTITUTION, STATUTES, REGULATIONS, AND RULES

Federal

United States Constitution

Art. Ill, § 2

Amend. IV

(i), 1, 7, 11, 12

United States Code

12 U.S.C. § 1702 (sue-and-be-sued clause)

28 U.S.C. § 2071 ............................................

42 U.S.C. § 1441 (national housing policy)

(i), 21, 30a

Code of Federal Regulations

24 C.F.R. Ch. II (4-1-12 Edition):

§ 206.125iU................................................

§ 206.125(b)..............................................

§ 206.125(c)..............................................

(xv), 4, 25

.....(xv), 4

.... (xv), 4

Federal Rules of Civil Procedure

8(a)(2)

8(c)

9(b)

10(c)

12(b)(1)

12(b)(6)

12(f)

56(c)

56(e)

(i), 14, 15, 24, 25

.............. 27, 31, 33

................... 11, 31

(i), 8, 9, 10, 11, 12

iii

1 R. 337—39, cites to the record on appeal (ROA), Vol. 1, pp. 337-39.

(x)

U. S. District Court for the District of Colorado Local Rule

D.C.COLO.LattyR 15

33, 35, 37, 31a—35a

Supreme Court Rules

(ii)

10(a)

12.6

State

Arizona Revised Statutes

§ 14-3707 (employment of appraisers)

3, 35a

Colorado Revised Statutes

§§ 13-40-101, et seq. (forcible entry and detainer)...........

§ 18-4-203 (second degree burglary)..................................

§ 18-4-501 (criminal mischief)............................................

§ 18-4-502 (first degree criminal trespass).......................

§ 18-4-503 (second degree criminal trespass)...................

§ 18-4-504 (third degree criminal trespass)......................

§ 18-4-504.5 (definition of premises).................................

§ 38-35-117 (mortgages, not a conveyance — lien theory)

...... (i), 7, 36a—47a

................... 7, 48a

........... 7, 48a-49a

(xii), (xiii), 5, 7, 49 a

............(xii), 5, 49a

....(xii), 5, 49a—50a

50a

7, 50a

OTHER AUTHORITIES

Black's Law Dictionary (5th ed. 1979)1V

Reasonable..........................................

Termination.........................................

Hearing................................................

FHA Annual Management Report,

Fiscal Year 2019 (Nov. 16, 2019) .....

. 17-18

HUD Handbook 4150.2, App. D............

(xiv), 3

JOSEPH R. Biden, “Fact Sheet: Biden Administration Announces Extension of

COVID-19 Forbearance and Foreclosure Protections for Homeowners.”

The White House, Feb. 16, 2021, www.whitehouse.gov/briefing-room/statements-releases/2021/02/16/fact-sheet-biden-administration-announces-extension-of-covid-19-forbearance-and-foreclosure-protections-for-homeowners/................................................................................................................................

(i)

Definitions required in this petition are of terms well established in case law which is re

tained in the the fifth edition but has been eliminated from more-recent editions.

(xi)

TABLE 1. HUD's break-in, lock-out, and law-enforcement search.

Date

Description

Reference

1 R. 270

Dr. Golz's June 6, 2016 letter to the Secretary and No05/11, 06/06 vadv responding to HUD's May 11 and June 6 door 11 122-23

& 07/06/16 hangers asked the agency to cease entering onto the

Property without permission. HUD trespassed on July 6. 2 R. 122 1 2

08/01 &

08/02/16

Dr. Golz wrote to the Secretary, Novad, and USAO Civ.

1 R. 270

Div. Chief Kevin Traskos: “You are hereby advised that

11 124-25

any entry onto my property ... is an illegal trespass

2 R. 114-25

prosecutable under §§ 4-502 to 504, 18 C.R.S.” (122 1 3).

10/09/16

Dr. Golz reminded the USAO “his family was occupying

the Property and that: ' HUD dispatched their agents to

trespass on our property - on May 11th, June 6th, and

July 6th, ignoring my repeated written instructions to

cease ... the agency's effort to orchestrate a possessory

right to the property per Paragraph 23 of the deed[.] f »

1 R. 271

1 126

&n,16

Det. Darragh O'Nuallain apprehended two men inside

the Golz home who admitted forcibly entering and in I R. 271-72

stalling a “HUD lock” and presented HUD documents as II 127-29

the authority for their acts. See Exhs. A and B, infra.

12/02/16

“Housing and Urban Development Property Access

Record”; “Property Address: 130 Beaver Creek Dr.”;

“Date 12-2-2016”; “Representative of BLM CO”.

1 R. 278

Exh. A

“New Work Order Assigned 03201115”; “Address: 130

Beaver Creek Drive”; “W/O Date: 12/1/2016”; “Vendor: 1 R. 279-80

Exh. B

RAREO - Phillip Cuizon”; “Property [ ]: Acquisition”;

“Management by: Terrah.Anderson@blmco.com”.

“'Zach'”vl told Det. O'Nuallain “'the home had been fore 1R. 272 1

closed and HUD had taken possession of the [P]roperty.'” 129 & n.17

12/27/16

Sgt. Manes emailed BLM CO's Tracy Willingham, re 1 R. 272-73

1130

garding: “130 Beaver Creek Dr. ... case number 16-7379

... burglary/trespass, criminal mischief and other prop nn.l8&19

& 282

erty damage associated with two persons employed by

Exh. D

BLM CO ... Work order assignment 03201115.”

For Novad and other novel terms, see the glossary. Infra.

Upon information and belief, “'Zach'” is Zach Mountin, former HUD Trial Attorney and

former agency counsel for this case. Supp. 2 R. 11; see 3 R. 54; 1 R 273 H 131.

(xii)

12/29/16

Sgt. Manes' report documented unanswered 12/27/16emails and voice-messages to “Field Service Manager of

BLM Colorado Tracy Willingham 435-674-0057 ... [and]

John P Denny Colorado HUD supervisor 918-292-8954.”

01/20/17

BCSO “Records Request Recipient Tracy Willingham—

BLM”;“ Witness2: DAndrea, Deborah Lee” Golzes' neigh

bor was present when Messrs. Cuizon and Scott broke in 1R. 371-73

and led Det. O'Nuallain on a search opening every door in

the home; includes “Property ... Photos of Doors.”

06/06/17

The USAO Civil Division replied to Dr. Golz: “'HUD staff

[did not] commit a criminal trespass by virtue of their en

try onto the property on December 2, 2016, [because:] ... 3 R. 24 1 2

HUD ... shah be entitled to enter upon, take possession of

and manage the Property[.]' Deeds of Trust 23.”

11/29/17

Pleaded: “HUD administrators ... HUD and USAO Attor

neys ... with knowledge that Dr. Golz's family was occu

pying the Property, conspired to forcibly enter into the

Property for the purpose of removing Defendants' per

sonal belongings and taking possession of the Property[.]”

12/06

12/07/17

12/13/17

1 R. 281

Exh. C

1 R. 273

11 131

Dec. 6: Dr. Golz emailed Messrs. Mountin and Mock: “I

Supp. 2 R.

will [ ] appreciate your both replying ... so that I can as

364 H 2

sure [my wife] that HUD wih not repeat its actions of De

and see

cember-2, 2016.” Dec. 7: Mr. Mock replied, copying Mr.

4 R.

Mountin, “ HUD has a contractual right under the Deeds

24:9-13

of Trust to enter upon and manage the property.”

Dr. Golz's Dec.-7 letter responded to Messrs. Mountin

and Mock's email of Dec.-7 stating: “HUD's forced entry

... was an intentional and unlawful entry into the

'dwelling of another' which is felony trespass (C.R.S. §

[18-]4-502) chargeable against the person or persons that

issued the order for, or provided aid and advice to facili

tate, the December-2, 2016 break-in at the Property.”

3 R. 58

“'HUD and their agents' [could not have] committed a 1 R. 300 f 1

criminal trespass, forcible entry, and criminal mischief, see also

and had intent to commit burglary under Colorado law ... Br. for Ap

for the simple reason that the Deeds of Trust expressly pellee 43

authorize HUD to enter upon and manage the property.” (cites DOT)

(xiii)

TABLE 2. The Secretary's Payoff Agreement with Petitioner.

Date

Description

Pages

The lender breached the loan at origination with a lien

on Verna Mae Golz's separate, vacant lot; when HUD re Supp. 2 R.

01/18/02 jected 2005 requests from Boulder County Housing and 175-215 &

12/05/05

285-91

Aging Services to release its lien, USDA denied Verna

Mae's loan to replace a dry well and crushed septic-tank.

05/23/14

Dr. Golz's initial certified-letter requested confirmation

of the payoff as “the lesser of the current loan balance

[ ] or 95% of the property's appraised value.”

09/17 &

10/10/14

Estate's counsel noticed HUD: “Dr. Golz requests exer

1R. 259 1

cise of the right of family sale”; the OSFAM Director

88; 2 R.

replied, “[o]n behalf of Secretary Castro, ... Dr. Golz

231-33 &

may pursue the family sale option ... for the lesser of

237 HH 1-2

the loan balance or 95 percent of the appraised value.”

11/08/14

Dr. Golz notified HUD, that, at 8,600 feet in the moun

tains, because the “Property has material latent defects 1R. 259-60

that are below ground-level, scheduling the appraisal

HH 89

inspection will be, 'hampered by the winter snows [.] I ”

01/08/15

HUD delayed two-more months then canceled its ap

praisal when told that a lawyer or broker would meet

the appraiser at the Property with written disclosures

for the snow-covered defects: the well and septic tank.v"

1 R. 261

H1f 93-95

& n.ll

01/18/15

Dr. Golz documented for HUD how its illegal lien on the

vacant lot had deprived Verna Mae of the means to re

place her dry well and crushed septic-tank.

Supp. 2 R.

217-19

01/20/15

Deep snow was present and a winter-weather advisory

in effect when a HUD appraiser with an order to com

plete an appraisal in two days contacted Dr. Golz.

1 R. 2611f

01/21/15

Petitioner reminded the Secretary of his many letters to 1 R. 261-62

HUD in 2014 asking for an appraisal before deep, win HH 97-98 &

n.12

ter snows made a valid appraisal impracticable.

02/19 &

03/18/15

Dr. Golz consulted DORA on state law for conducting

1 R. 262-63

appraisals when material defects were hidden then no

HH 99-101

ticed HUD he would provide updates on the weather.

1 R. 257

If 81

vii An FHA-Roster “appraiser is not required to disturb ... snow, ice or debris that obstructs

access or visibility.” HUD Handbook 4150.2, App. D, at D-3 H 2.

(xiv)

04/08 &

04/21/15

OSFAM's Deputy Director disclaimed HUD's duty to 1 R. 263-64

102-03

meet its published standards for a valid appraisal.

05/05 05/14/15

Nine feet of snow fell from January to April; after the

powerful Mother's Day Snowstorm, Mark Cohen, Esq.,

advised HUD that, as soon as “conditions are right for a

full and complete inspection, I will contact” HUD.

2 R. 10 1J 2

& 1R. 264

1H1 104-06

05/18 &

05/20/15

OSFAM's Deputy Director wrote: “your Mother’s re

verse mortgage will be referred for foreclosure on or

about May 18, 2015.” Mr. Cohen replied: “the family

wishes to exercise its right to purchase the property[.]”

1 R. 265

111 107-08

06/03 &

06/16/15

Dr. Golz's checks for 95% of the Estate's FHA-appraisal

1 R. 265

were returned by OSFAM's Deputy Director who wrote

1 109-10 &

“VOID” on the checks because “purchase of a HECM

Supp. 2 R.

property ... must fully comply with HUD regulations

297-98

and requirements at 24 C.F.R. § 206.125(b) and (c)[.]”

06/20 &

08/04/15

Mr. Cohen advised HUD the Estate's appraisal and

I R. 265-66

checks satisfied the Payoff Agreement. AGC Millicent

II 111-12

Potts replied, “HUD's longstanding interpretation of ...

24 C.F.R. 206.125(b) is that... HUD will only accept ap

2 R. 253

praisals ... ordered by and delivered directly to HUD[.] ”

08/17 &

08/24/15

Mr. Cohen made two, additional requests to AGC Potts

for the “dates HUD proposes to be able to schedule thenI R. 266-67

appraisal inspection so that I can arrange to have Dr.

II H3-16

Golz, or an agent of the estate of Verna M. Golz, meet

HUD’s appraiser at the subject property.”

09/08/15

AGC Potts replied, “HUD received your most recent let

1 R. 267-68

ters dated August 17, 2015 and August 24, 2015 ...

1 117-18 &

HUD has begun its process for foreclosing on the prop

2 R. 258

erty and will continue the process.”

08/16/16

HUD filed an Aug. 2016 BPO falsely stating to the Reply Br.

court that the home has a “2 Car Garage”, “Repairs To for Appel

tal: $0”, and is comparable to homes with “New kitchen lant 19—20,

Part G

cabinets. ... New Carpet... Fresh paint inside and out.”

02/12/20

By HUD's own recitation to the court, “24 C.F.R. §

206.125 did not apply to Ms. Golz loan in 2014.”

(xv)

Br. for Ap

pellee 27

GLOSSARY

Definition

Term

AGC

............................................. Associate General Counsel (of HUD)

BCSO

.......................................................Boulder County Sheriffs Office

BLM or BLM CO viii .................................... HUD's field service manager for Colorado

BPO

............................................... (real-estate) Broker's Price Opinion

DORA....................... ................ Dept, of Regulatory Agencies (Colo. Div. of Real Est.)

HECM...................... .............................................. Home Equity Conversion Mortgage

NOVAD or Novadvm .................................................................. HUD's mortgage servicer

OSFAM

................. Office of Single Family Asset Management (of HUD)

USAO

.... United States Attorney's Office (for the District of Colorado)

USDA

United States Department of Agriculture (Rural Development)

viii Not an initialism but the name under which the entity conducts business.

(xvi)

OPINIONS BELOW

The order and judgment of the Court of Appeals (App. A, infra, la—10a) is re

ported at 829 F. App'x 853 (unpublished). On April 8, 2019, the District Court is

sued both its final judgment and its order (App. B, infra, 11a—27a) accepting and

adopting the Magistrate Judge's recommendations. This petition will cite to the

version of the District Court's order in the record on appeal (ROA). 3 R. 354—68.1

JURISDICTION

The District Court had jurisdiction pursuant to 28 U.S.C. § 1345. The order

and judgment of the Court of Appeals was entered on September 21, 2020. A peti

tion for rehearing en banc was denied on December 14, 2020. App. C, infra, 28a—

29a. The Court's March 19, 2020 order extended the time to file any petition for a

writ of certiorari to 150 days from the date of the order denying a timely petition for

rehearing. That order extended the deadline for filing this petition to May 13, 2021.

The Court has jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourth Amendment of the U. S. Constitution provides: “The right of

the people to be secure in their persons, houses, papers, and effects, against unrea

sonable searches and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and particularly de

scribing the place to be searched, and the persons or things to be seized.” 2 Selected

federal and state statutes are reproduced in Appendix D. Infra.

3 R. 354—68 cites to the ROA, Vol. 3, pp. 354—68.

https://constitution.congress.gov/constitution/amendment-4/.

STATEMENT OF THE CASE: QUESTIONS 1 AND 2

Petitioner's mother, Verna Mae Golz, died on May 16, 2014. On Septem

ber 16, 2014, the State Court appointed Petitioner personal representative (PR or

executor) of her estate (Estate). The Estate's only asset was the 1,200 square-foot

home at 130 Beaver Creek Drive, Nederland, Colorado, Unincorporated Boulder

County (Property or home). Since 2002, the Property has secured a Home Equity

Conversion Mortgage (HECM) loan. In 2004, the well ran dry in a historic drought

and a truck crushed the septic tank. In 2005, the Boulder County Housing Author

ity made requests to HUD to release its illegal lien on Verna Mae's separate, vacant

lot. HUD refused, and without the lot as security the U. S. Department of Agricul

ture terminated Verna Mae's loan to drill a well and replace her septic tank. In

2011, Verna Mae sued, HUD released its illegal lien, and the Secretary accepted as

signment of the HECM loan as named “Lender” on the Second Note (Note) (1 R.

154

1) and Second Deed of Trust (DOT). Id,., at. 167 f 1.

I. Facts Pleaded by Petitioner (dismissed prior to discovery)

On April 25, 2018, Petitioner citing to authority filed a list of ECF num

bers which he defined as his body of pleadings. 2 R. 297-98, Part B. On January 8,

2019, Petitioner supplemented that authority with additional citations and discus

sion in a motion requesting that the court read his pleadings as a whole. Supp. 2 R.

352—55. Table 1 and Table 2, supra, provide chronological keys to the ROA for the

body of facts and exhibits pleaded by Dr. Golz.3

William Golz pleaded facts in this case with a competence and accuracy commensurate to

his earned Ph.D. (Louisiana Board of Regents' Fellow) and professional degrees of M.S. and

B.S. {cum laude) in civil engineering. Dr. Golz has written all filings bearing his name be

ginning with and including the amended answer. See 2 R. 297 If 3 and Supp. 2 R. 64 ^ 2.

A. HUD's fraudulent evasion of the Secretary's Payoff Agreement with

Petitioner

Petitioner submitted many appraisal requests in letters to HUD begin

ning May 23, 2014. In reply to a September 17, 2014 letter from Estate's counsel,

the Office of Single Family Asset Management (OSFAM) Director, acting with the

Secretary's authorization, on October 10, 2014 agreed to Petitioner's loan payoff of

95% of the Property's appraised value (Payoff Agreement). On November 8, Dr.

Golz warned HUD that the then-impending snow at 8,600 feet would make a valid

winter-appraisal impracticable. Supra Table 2: 01/18/02 through 11/08/14.4

HUD refused to order an appraisal until January 2015 then abruptly can

celed it on January 8 when told that a professionally-licensed third-party would

meet the appraiser with written disclosures for snow-covered defects. Dr. Golz was

then contacted on January 20 by a HUD appraiser who had an order to complete

the appraisal in two days when several feet of snow were already on the ground and

a blizzard advisory was in effect.5 Id., at 01/08/15 through 01/20/15.

When the snow abated—nine feet fell from January through April 2015,

Dr. Golz asked HUD to order an appraisal. HUD refused in a letter, stating “ your

Mother’s reverse mortgage will be referred for foreclosure on or about May 18,

2015.” HUD rejected Dr. Golz's June-3 checks for 95% of the Estate's FHA Rosterappraiser's report (see Ariz. Rev. Stat. § 14-3707; App. D, infra, 35a) in a June-16

Part I is a chronology. Facts and events are presented with definite dates. Each paragraph

ends with a citation to Table 1 or Table 2, which are timelines: in each row, the date (left col

umn) corresponds to a description of facts (center column) and a citation to the ROA (right

column).

HUD Handbook 4150.2, App. D, at D-3 1 2 provides: “The appraiser is not required to dis

turb ... snow, ice or debris that obstructs access or visibility.” Br. for Appellant 5, f 2.

letter, citing “HUD regulations and requirements at 24 C.F.R. § 206.125(b) and (c)

[.]”

FHA Program Counsel AGC Millicent Potts elaborated on August 4, that

“HUD's longstanding interpretation of ... 24 C.F.R. 206.125(b) is that ... HUD will

only accept appraisals that are performed by FHA Roster Appraisers and are or

dered by and delivered directly to HUD[.] ” As HUD stated for the Court of Appeals

on February 12, 2020, “24 C.F.R. § 206.125 did not apply to Ms. Golz loan in 2014.”

Supra Table 2: 01/21/15 through 08/04/15 and 02/12/20.

In August 2015, Petitioner's counsel made additional written requests for

the HUD-ordered appraisal the agency had stated was required to conclude the

Payoff Agreement. Those requests were rejected by AGC Potts who replied in a

September 8, 2015 letter: “HUD received your most recent letters dated August 17,

2015 and August 24, 2015 ... HUD has begun its process for foreclosing on the prop

erty and will continue the process.” Id., at 08/17/15 through 09/08/15. HUD exe

cuted that foreclosure on December 2, 2016 when it forcibly entered, installed a

“HUD lock” to exclude the Golz family, and Zach Mountin told Det. Darragh O'Nuallain that, “ 'the home had been foreclosed and HUD had taken possession of the

[Pjroperty. i »6 Supra Table 1: 12/02/16 (brackets in original).

B. HUD's break-in, lock-out, and effectuation of a law-enforcement

search of Petitioner's home

HUD entered onto the Property on May 11, 2016 and on June 6 circled the

home looking into windows when the Golzes' son was home. HUD, disregarding Dr.

Golz's June-6 letter to stop entering onto the Property, trespassed on July 6. Peti

tioner's August 1 and August 2, 2016 letters—to the Secretary, Novad, and Kevin

On December 5, 2016, a locksmith removed the “HUD lock.” Reply Br. for Appellant 23 K 2.

Traskos, USAO Civil Division Chief, stated, “any entry onto my property ... is an il

legal trespass prosecutable under §§ 4-502 to 504, 18 C.R.S.” Dr. Golz's October-9

letter to the USAO reiterated “his family was occupying the Property” and HUD

must “ 'cease ... the agency's effort to orchestrate a possessory right to the property

per Paragraph 23 of the deed[.]'” Supra Table 1: 05/11/16 through 10/09/16.

The Golzes' neighbor rushed over on December 2, 2016 as two men de

stroyed the dead-bolted storm-door, broke through the front door, and installed a

“HUD-lock.” Det. O'Nuallain, responding for the Boulder County Sheriffs Office

(BCSO), identified Phillip Cuizon whom presented a BLM work-order and HUD

“PROPERTY ACCESS RECORD” stating “ALL VISITORS TO HUD PROPERTIES

ARE REQUIRED TO SIGN IN” with a “12-2-2016” entry for “BLM CO.” Mr.

Cuizon used a cell phone to call Zach Mountin who falsely stated to Det. O'Nuallain

that, “'the home had been foreclosed and HUD had taken possession of the prop

erty.'” HUD requested a search and Mr. Cuizon led Det. O'Nuallain through the

home opening every door. Id., at 12/02/16 and 01/20/17.

Sgt. William Manes' December 29, 2016 report (BCSO Case No. 16-7379)

stated that court records showed HUD had no possessory right to the Property and

that BLM manager Tracy Willingham had not returned Sgt. Manes' December-27

voice-message and email. Ms. Willingham knew about the investigation because

the BCSO fulfilled a records request for her labeled: “16-7379”; “Recipient Tracy

Willingham — BLM”; “January 20, 2017.” HUD filed three pages of Ms. Willing

ham's BCSO-records-request (1 R. 371—73) claiming that they showed, “the police

sergeant recommended closing the case without bringing any charges.” Id., at 300,

n. 8. HUD's exhibit is a mountain-duty deputy's report who was assigned by his su

pervisor to take pictures only. The last page of the deputy's report states, “ Recom

mended Case Status: Open[.]” Supra Table 1: 12/27/16 through 1/20/17.7

In a June 6, 2017 letter, the USAO Civil Division advised Dr. Golz that

“HUD staff” did not “commit a criminal trespass by virtue of their entry onto the

property on December 2, 2016,” because,

'upon acceleration under Paragraph 9 of the Deeds of

Trust'—which occurred no later than May 16, 2014—

HUD '(in person, by agent or by judicially appointed re

ceiver) shall be entitled to enter upon, take possession of

and manage the Property.' Deeds of Trust [ 1 R. 173] If 23.

Supra Table 1: 06/06/17 (brackets omitted). HUD's claim that acceleration occurred

when Verna Mae died on May 16, 2014 is contrary to the optional language in the

acceleration clauses in the Note (1 R. 155 1 7(A)) and DOT (id., at 170 If 9(a)):

“Lender may require immediate payment[.] ” HUD accelerated five months after its

forcible entry when the agency filed its foreclosure complaint on May 9, 2017.

For a DOT like HUD's with an, “Acceleration clause[ ] premised on default

... the creditor must perform some clear, unequivocal affirmative act evidencing his

intention to take advantage of the accelerating provision. Letters sent by the credi

tor to the debtor threatening foreclosure if the default is not cured are not

enough[.]” Paggen v. Bank of Am., No. 17-CV-01241-RBJ, at *8 (D. Colo. Aug. 27,

2018) (citations and internal quotations marks omitted), aff'd, No. 18-1390 (10th

Cir. July 31, 2019). Even if HUD had taken action to accelerate the Note, Colorado

law “ prohibits a mortgagee from acquiring possession of mortgaged property until a

Petitioner's records-request “yielded fifty pages of responsive documents, evidence, and pho

tographs!)] ” Br. for Appellant 1112.

foreclosure and sale have occurred. Section 38-35-117, 16A C.R.S. (1982)[.]” Mar

tinez v. Continental Enter., 730 P.2d 308, 314 (Colo. 1986).

Petitioner pleaded those facts within his personal knowledge, facts ob

tained through correspondence with HUD, the USAO, and the BCSO, and that:

Upon information and belief, ... HUD administrators and

BLM staff ... HUD and USAO Attorneys ... with knowl

edge that Dr. Golz's family was occupying the Property,

conspired to forcibly enter into the Property for the pur

pose of removing Defendants' personal belongings and

taking possession of the Property and ... committed a

first-degree criminal trespass (C.R.S. § [18-]4-502 et seq.)

and criminal mischief (C.R.S. § 18-4-501) with the intent

to commit second-degree burglary (C.R.S. § 18-4-203)[.]

Supra Table 1: 11/29/17. Respondent's position in the District Court and Court of

Appeals, is that “'HUD and their agents' could not have”:

committed a criminal trespass, forcible entry, and crimi

nal mischief, and had intent to commit burglary under

Colorado law ... for the simple reason that the Deeds of

Trust expressly authorize HUD to enter upon and manage

the property.

Id., at 12/13/17 (brackets omitted). Correspondence from Dr. Golz to and from HUD

and the USAO (id., at 06/06/17 and 12/06 & 12/07/17) shows that HUD's claim of

possessory right under the DOT is in direct conflict with Petitioner's substantive

rights under Colorado's forcible entry and detainer statute (Colo. Rev. Stat. §§ 1340-101, et seq.) (App. D, infra, 36a-47a); Colorado Supreme Court precedent (Mar

tinez v. Continental Enter., supra, at 314); and the Fourth Amendment (Soldal v.

Cook County, 506 U.S. U.S. 56, 67 (1992); Chapman v. United States, 365 U.S. 610

(1961)). Br. for Appellant 43-46 (Parts (ii)-(v)) and 48-49 (Parts (ii)-(iii)).

II. Proceedings Below (Petitioner’s case terminated on a 12(f) motion)

HUD stated that “Dr. Golz’s contentions of estoppel and unclean hands

are insufficient affirmative defenses. Neither defense is available, because HUD is

acting in the public interest^” Br. for Appellee at 12 f 2. When appealing from the

District Court's termination of his case prior to any discovery, Petitioner preserved

affirmative defenses from the “clean hands” doctrine (unclean hands), estoppel, and

setoff or recoupment.8 The discussion below of the termination of Petitioner's affir

mative defenses on a Federal Rule of Civil Procedure (Rule) 12(f) motion prior to

any discovery supplies Questions 1 and 2 and questions subsidiary thereto.

A. The lower courts' application of summary judgment to HUD's 12(f)

motion is in conflict with established precedent

Prior to any discovery, HUD moved under Rule 12(f) to strike Petitioner's

affirmative defenses (HUD's 12(f) motion). 1 R. 283—302. Petitioner's defenses are

supported by factual allegations in the amended answer {id., at 254—73 If 71—131)

and attached exhibits. Id., at 278—82. Petitioner's response to HUD's 12(f) motion

also attached exhibits (2 R. 27-264), and additional exhibits were filed (Supp. 2 R.

284—98) that were material to an objection to the Magistrate Judge's recommenda

tion on HUD's 12(f) motion. All but one of the abovementioned exhibits (2 R. 26064, Exh. T9) were included in the amended answer by attachment or specific reference. E.g., Elhelbawy v. Pritzker, No. 14-cv-01707-CBS, at *19, n. 5 (D. Colo. Sep.

Petitioner detailed his counterclaim against HUD for its forcible entry at the April 16, 2018

hearing. 4 R. 22:14-24:17 and 33:11-34:1; Appellant's Pet. for Reh'g En Banc 5-6 (Parts

(E),(F)). Pursuant to the court's instructions, Petitioner filed an SF-95 on May 31, 2018 and

filed his claim with the court on January 8, 2019. Br. for Appellant 18 f 2 and 50 f 2.

Exhibit T is a May 8, 2017 letter requesting a response from Acting U. S. Attorney Robert

Troyer. The letter summarized December 25, 2016 through April 27, 2017 correspondence

from Dr. Golz and his wife, Annette Golz, detailing facts of the forced entry and search.

21, 2015) (“ The pleading is deemed to include any document attached to it as an ex

hibit, Fed. R. Civ. P. 10(c), or any document incorporated in it by reference.”) (cita

tion, internal quotation marks, and parentheses omitted).

1. HUD's 12(f) motion challenged only the legal sufficiency of Peti

tioner's defenses and made no attempt to demonstrate that there

were no disputed facts

a. Questions 1 and 2, respectively, address the affirmative defenses of eq

uitable estoppel {supra Part I.A; 1 R. 275 % 137) and unclean hands (supra Part I.B;

1 R. 276 Tf 141). HUD's 12(f) motion asserted that, “None of these defenses are

legally valid.” 1. R. 285 t 1- HUD did not challenge Petitioner's facts.

b. The District Judge — going in the opposite direction, construing a mo

tion for partial summary-judgment as a Rule 12(f) motion in Quick v. Grand Junc

tion Lodging LLC, No. 13-cv-02917-RBJ (D. Colo. Dec. 18, 2014) — stated, “discov

ery has ended and both parties have cited to evidence in their filings[.] ” Id., at *4.

The Magistrate Judge, quoting Quick v. Grand Junction Lodging, stated, “when

both parties have submitted evidence outside the pleadings in connection with a

Rule 12(f) motion to strike, as they have done here, [']the Court will consider []both

legal insufficiency and factual insufficiency on the record before the Court.' Id., at

*[5].” 2 R. 330 t 3 (internal quotation-mark and page-citation corrected).

c. The Magistrate Judge's recommendation to grant HUD's 12(f) motion

(Recommendation; id., at 324—43) was reviewed de novo by the District Judge and

adopted. Id., at 417

2. The Court of Appeals affirmed, stating “the district court

considered evidence outside the pleadings and applied a summary-judgment stan

dard. We therefore review the decision de novo.” App. A, infra, 3a.

2. The panel contravened the summary-judgment standard adopted

by the Circuit as set forth by the Court in Adickes v. Kress Co.

a. The author of the panel's decision, Circuit Judge Baldock, also wrote

the opinion for the Circuit in Reed v. Bennett, 312 F.3d 1190, 1193 (10th Cir. 2002),

which hinged on “the determinations required by Fed.R.Civ.P. 56(c)[,] ” stating:

[T]he burden on the nonmovant to respond arises only if

the summary judgment motion is properly ' supported' as

required by Rule 56(c). Accordingly, summary judgment

is 'appropriate' under Rule 56(e) only when the moving

party has met its initial burden of production under Rule

56(c). If the evidence produced in support of the summary

judgment motion does not meet this burden, 'summary

judgment must be denied even if no opposing evidentiary

matter is presented.' [Adickes v. S.H. Kress Co., 398 U.S.

144, ]160[(1970)], 90 S.Ct. 1598 (quoting Fed. R. Civ. P. 56

advisory committee notes to the 1963 amendments) (em

phasis added).

Reed v. Bennett, supra, at 1194.

b. HUD's 12 (f) motion “failed to show the absence of any disputed mate

rial fact {Adickes v. Kress Co., supra, at 148), and “'the party moving for summary

judgment has the burden to show that he is entitled to judgment under established

principles; and if he does not discharge that burden then he is not entitled to judg

ment. No defense to an insufficient showing is required.' 6 J. Moore, Federal Prac

tice f 56.22 [2], pp. 2824-2825 (2d ed. 1966).” Adickes v. Kress Co., supra, at 161.

3. The Rule 12(f) standard required the lower courts to accept Peti

tioner's well-pleaded factual allegations as true and correct

“ To grant a Rule 12(f) motion,”

The Court must be convinced that there are no questions

of fact, that any questions of law are clear and not in dis

pute, and that under no set of circumstances could the de

fenses succeed. The standard that must be met is undis10

puted: only if a defense is insufficient as a matter of law

will it be stricken. A defense is insufficient as a matter of

law if, on the face of the pleadings, it is patently frivolous,

or if it is clearly invalid as a matter of law.

As with a Rule 12(b)(6) motion, when a Rule 12(f) motion

is being considered the Court does not weigh evidence.

Instead, it must assume that the facts set forth in the

pleading sought to be stricken are true and correct.

Mazel v. Hopkins (In re Hopkins), No. 7-13-11871 TA, at *6—7 (Bankr. D.N.M. May

29, 2014) (citations, internal quotations marks, and parentheses omitted).

B. The defense of unclean hands: HUD's forcible entry, seizure, and lawenforcement search of Petitioner's home

1. The court's assertion that HUD's DOT can grant the claimed right

of forcible entry, seizure, and search of the Golz-home conflicts

with state law and the Court's Fourth Amendment precedents

a. The Recommendation concluded, with respect to the unclean hands de

fense, “I do find it compelling [ ] that the deeds of trust explicitly provide HUD with

the right to enter and manage the Property.” (2 R. 342 Tf 2). The District Judge

agreed, that the “'forcible entry' appear[s] to have been consistent with the deed of

trust, provided that HUD’s decision to terminate its attempts to obtain an appraisal

was reasonable.” Id., at 416

b. The presumption that HUD's rejection of Petitioner's checks and re

fusal to order its own appraisal was a reasonable10 termination11 of the Payoff

Agreement and that by some measure of reasonableness HUD could claim rights

10 Reasonable. “[Sjynonymous with rational, honest, equitable, fair, suitable, moderate, tolera

ble.” Black's Law Dictionary 1138 (5th ed. 1979) (hereinafter Black's).

11 Termination implies a legal ending “before the end of the anticipated term of the lease or

contract, which termination may be by mutual agreement or may be by exercise of one party

of one of his remedies due to the default of the other party.” Black's 1319.

that violate the law raises a list of serious questions that should not have been de

cided on a Rule 12(f) motion. E.g., Mazel v. Hopkins, supra, at *6-7.

c. In Chapman v. United States, 365 U.S., at 610, “State police officers,

acting without a warrant but with the consent of petitioner's landlord, ... entered

petitioner's rented house in his absence through an unlocked window[.]” The Court,

reversing the Fifth Circuit, stated, “to uphold such an entry, search and seizure

without a warrant would reduce the Fourth Amendment to a nullity and leave ten

ants' homes secure only in the discretion of landlords.” Id., at 616—17 (citation, in

ternal quotation marks, and brackets omitted).

d. In Soldal v. Cook County, 506 U.S., the Court stated, “we reaffirm to

day our basic understanding that the protection against unreasonable searches and

seizures fully applies in the civil context” (id., at 67, n. 11), adding that the Fourth

“Amendment's protection would be triggered by a search or other entry into the

home incident to an eviction or repossession.” Id., at 67 (citation and internal quo

tation marks omitted). “What matters is the intrusion on the people's security from

governmental interference. Therefore, the right against unreasonable seizures

would be no less transgressed if the seizure of the house was undertaken to collect

evidence, verify compliance with a housing regulation, effect an eviction by the po

lice, or on a whim, for no reason at all.” Id., at 69.

2. The panel's extension of McKennon v. Nashville Banner’s important-national-policies' criterion to an FHA lender's forcible entry

and search of a family's home is at odds with congressional intent

a. McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 354 (1995), in

volved, “whether an employee discharged in violation of the Age Discrimination in

Employment Act of 1967 [29 U.S.C. § 621 et seq.] is barred from all relief when, af

ter her discharge, the employer discovers evidence of wrongdoing[.] ” Br. for Appel

lant 38-39 (Part 11(A) (i)).

b. The District Judge (2 R. 415 1 1) quotes the Court, citing the Magis

trate Judge's Recommendation which states: “The Supreme Court has 'rejected the

unclean hands defense where a private suit serves important public purposes.'” 2

R. 341 ^[ 5—342 Tf 1 (quoting McKennon v. Nashville Banner, supra, at 360). The

Court of Appeals also quotes that: “'unclean hands ... has not been applied where

Congress authorizes broad equitable relief to serve important national policies.'”

Ibid.\ App. A, infra, 6a (parentheses omitted).

c. One can be certain that when Congress declared a national housing

policy—dedicated to “the goal of a decent home and a suitable living environment

for every American family ... and to the advancement of the growth, wealth, and se

curity of the Nation” (42 U.S.C. § 1441)—its intent did not include granting federal

courts a charter to license HUD's or any other FHA lender's violation of federal and

state law to forcibly enter, seize, and search a family's home.

3. The District Court misstated and misapplied a case “striking an

unclean hands defense in the context of the [Fair Housing Act] ”

The Magistrate Judge defined “Federal Housing Administration ('FHA')”

in his Recommendation. 2 R. 325. The District Judge's order on the Recommenda

tion uses FHA when discussing HUD regulations, does not redefine it, and states:

“ Protection of the public treasury by means of a HUD foreclosure has been deemed

to be an important public purpose. See, e.g., McFadden v. Meeker Housing Author13

ity, No. 16-cv-2304-WJM-GPG, 2018 WL 3368411, at *3 (D. Colo. July 10, 2018)

(striking an unclean hands defense in the context of the FHA).” 2 R. 415. In McFadden, FHA is the Fair Housing Act. 42 U.S.C. §§ 3601 et seq. It involved a dis

criminatory policy where therapy-pet owners sought a remedy under the Rehabilita

tion Act. 29 U.S.C. §§ 794 et seq. McFadden is inapposite. Br. for Appellant 39.

4. The panel referred to an unmet “high standard for proceeding

with” unclean hands where the District Court cited Rule 9(b)

a. The panel did not cite to any objective standard when it stated: “ Hav

ing reviewed the arguments and record, we are not persuaded that Dr. Golz satis

fies the high standard for proceeding with the defense[.] ” App. A, infra, 6a.

b. The District Judge stated, “'the clean-hands [inquiry] looks for fraudu

lent and deceitful conduct.'

Yeager\ v. Fort Knox Security Products], 602 F.

App’x[ 423,] at 429[ (10th Cir. 2015) (unpublished)].12

Fraud and deceit must be

pled with particularity. Fed. R. Civ. P. 9(b).” 2 R. 417 ^[ 1.

c. Rule 9 (b) provides, “In alleging fraud or mistake, a party must state

with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person's mind may be alleged generally.”

d. “The purpose of Rule 9(b) is to afford [plaintiff] fair notice of [defen' dant] 's claims and the factual ground upon which they are based[.] ” Schwartz v.

Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir. 1997) (citations, internal

quotation marks, and brackets omitted).

e. Schwartz v. Celestial Seasonings, supra, at 1250, states that Rule 9(b)

requires: “(1) the time, place and contents of the fraudulent misrepresentations or

12 To correct the quote, the word “inquiry” replaces “doctrine”; the citation to “F. App’x 432,”

(see 2 R. 415) is corrected to “F. App’x 423”.

omissions; (2) the identity of the party alleged to have made the misrepresentations

or omissions; and (3) the consequences of those misrepresentations or omissions.”

Allegations of fraud may be based on information and belief when

the facts in question are peculiarly within the opposing party's knowledge and the

[answer] sets forth the factual basis for the [defendant's belief.'” George v. Urban

Settlement Servs., 833 F.3d 1242, 1255 (10th Cir. 2016) (citation and parentheses

omitted); accord Wexner u. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990).

5. Petitioner's facts, as pleaded, satisfied Rule 9(b)

a. Petitioner pleaded HUD's 2016-acts beginning with the May 11 entry

onto the Property. When HUD's agent peered into windows on June 6, HUD was

noticed to cease entering the Property. HUD's July-6 entry was a criminal trespass.

On December 2, 2016, Mr. Cuizon used false documents and Mr. Mountin falsely

stated that HUD had foreclosed and taken possession. Supra Part I.B and Table 1.

b. Petitioner pleaded the names of HUD administrators and Government

lawyers alleging facts that made scienter plausible and met the Rule 9(b) standard.

HUD's unrelenting claim that its DOT licensed the forcible entry makes it clear

that Respondent had “fair notice of [Petitioner's claims and the factual ground

upon which they are based[.]”

Schwartz v. Celestial Seasonings, supra, 1252

(brackets in original omitted) (brackets are Petitioner's).

6. Unclean hands is a defense to an FHA foreclosure and to a con

tract; the Secretary has a legal remedy in the Payoff Agreement

a. As the Michigan Supreme Court pointed out in Stachnik v. Winkel, 394

Mich. 375 (Mich. 1975), “No citation of authority is necessary to establish that one

who seeks the aid of equity must come in with clean hands. [ ] The clean hands

maxim is an integral part of any action in equity.

The United States Supreme

Court captured the essence of the maxim when it said: ”

The clean hands maxim is a self-imposed ordinance that

closes the doors of a court of equity to one tainted with in

equitableness or bad faith relative to the matter in which

he seeks relief, however improper may have been the be

havior of the defendant. That doctrine is rooted in the

historical concept of the court of equity as a vehicle for af

firmatively enforcing the requirements of conscience and

good faith. This presupposes a refusal on its part to be

'the abettor of iniquity.' Bein v Heath, 6 How [47 US]

228, 247 [ 12 L Ed 416 (1848)]. Precision Instrument

Manufacturing Co v Automotive Maintenance Machinery

Co., 324 U.S. 806, 814[ ] (1944).

Stachnik v. Winkel, supra, 394 Mich., at 382.

b. In United States v. Georgia-Pacific Company, 421 F.2d 92, 103 (9th

Cir. 1970), the court, granting the estoppel, noted, “A second equitable defense here

is that of clean hands, a doctrine somewhat akin to, but distinguishable from, that

of estoppel. Like estoppel, the doctrine of clean hands is based on conscience and

good faith.” And, “The Government comes before this Court seeking the equitable

remedy of specific performance, a decree for which can be denied if the plaintiff has

not come into court with clean hands.” Ibid. “Although the Government is not al

ways to be treated like a merely private suitor, there is authority limiting this privi

lege when it is the Government which has instituted the suit, ... in its proprietary

(rather than sovereign) capacity. Id., at 104 n. 35. “Pomeroy,” the court continued,

“in noting the applicability of the doctrine of clean hands to the remedy of specific

performance, stated, (2 Pomeroy § 400, at 100):”

A contract may be perfectly valid and binding at law; it

may be of a class which brings it within the equitable ju

risdiction, because the legal remedy is inadequate; but if

the plaintiffs conduct in obtaining it, or in acting under

it, has been unconscientious, inequitable, or characterized

by bad faith, a court of equity will refuse h[er] the remedy

of a specific performance, and will leave h[er] to h[er] le

gal remedy by action for damages.

United States v. Georgia-Pacific, supra, at 104. The Secretary has a legal remedy in

her Payoff Agreement with Petitioner whom worked assiduously to satisfy his obli

gation to that contract.

c. “Like the district court,” the panel stated, “we assume without decid

ing that the defense of unclean hands is not categorically barred against the govern

ment. See Deseret Apartments, Inc. v. United States, 250 F.2d 457, 458 (10th Cir.

1957)” where the court stated, « » [T]he Government may not invoke the aid of a

court of equity if for any reason its conduct is such that it must be said it comes into

court with unclean hands. t » App. A, infra, 5a (parentheses omitted). In Deseret

Apartments v. United States, supra, at 457, “ The United States, acting for the Fed

eral Housing Commissioner, brought [an] action against Deseret Apartments, Inc.,

to foreclose a real estate and chattel mortgage on certain housing units [.] ”

C. The equitable defense of estoppel is available to prevent HUD from

unjustly evading its obligations under the Payoff Agreement

1. HUD misused the Payoff Agreement inducing Petitioner's detri

mental reliance from which the Secretary stands to benefit

a. When Petitioner entered into the Payoff Agreement with HUD, OSFAM Director Ivery Himes was acting, “On behalf of Secretary Castro,” with actual

authority, “for the development and implementation of policies for mortgage servic17

ing, claims, and property disposition that helps FHA to mitigate losses to the Mu

tual Mortgage Insurance Fund and assist homeowners to avoid foreclosure when

ever possible.” FHA Ann. Mgmt. Rep., FY 2019, p. 13 (Nov. 16, 2019). Br. for Ap

pellant 35, n. 21. HUD did not contest the District Court's statement that OSFAM

Director “Himes did indeed speak for HUD,” (2 R. 414 If 3).

b. The Payoff Agreement, as pleaded (Table 2: 09/17 & 10/10/14), is a con

tract: “An implied-in-fact [or express] contract with the government requires proof

of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and accep

tance, and (4) actual authority on the part of the government’s representative to

bind the government in contract. ” Lawndale Restoration Ltd. P'ship ex re Boule

vard v. United States, 95 Fed.Cl. 498, 507 (Fed. Cl. Nov. 23, 2010) (internal quota

tion marks omitted) (quoting Hanlin v. United States, 316 F.3d 1325, 1328 (Fed.

Cir. 2003)). “ Thus, the requirements for an implied-in-fact contract are the same

as for an express contract; only the nature of the evidence differs.” Ibid.', Appel

lant's Pet. for Reh'g En Banc 7 ^f 1 (enlarging on Br. for Appellant 40).

c. For the five-year period, June 2014 to June 2019: (1) Petitioner was de

nied economic use of the Property for 60 months by HUD's repudiation of the Payoff

Agreement which precluded obtaining financing for the $90,880 in repairs (cru

cially, to the well and septic) needed to meet minimum habitability standards. Br.

for Appellant 37; (2) Petitioner incurred carrying costs of $30,331. Ibid.; and (3)

HUD data shows that single family homes in the Boulder area appreciated 54% (9%

per year over five years compounded annually). 3 R. 472, nn. 1—4.

d. For the seven-year period June 2014 to June 2021: (1) Loss of use to

tals 84 months. See United States v. James Daniel Good Real Property, 510 U.S. 43,

54 (1993) (pecuniary loss, computed as lost rent, “represents a significant portion of

the exploitable economic value of [a] home.”); (2) Petitioner incurred $42,463 in car

rying costs (which excludes costs incurred for exterior repairs and painting); and (3)

HUD stands to benefit from the cumulative market-appreciation of 83%.13

2. Equitable estoppel

a. Federal law abhors a fraud or falsehood to accrue financial

gain from the losses of another

The facts of the estoppel in this petition are similar to “Faxton v. Faxon

(28 Mich. 159)[ (Mich. 1873)], [where] a mortgagee holding several mortgages pre

vailed on a son of the deceased mortgagor, then intending to remove to a distance,

to remain on the premises and support [his father's] family, by assuring him that

the mortgages should never he enforced. The son supported the family, and the

property grew in value under his tillage. After the lapse of several years the mort

gagee proceeded to foreclose. He was held to be estopped by his assurances upon

which the son had acted.'” Dickerson v. Colgrove, 100 U.S. 578, 581 (1879).

“In Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L. Ed. 618, it is said[ of

equitable estoppel]: ' The vital principle is that he who by his language or conduct

leads another to do what he would not otherwise have done, shall not subject such

person to loss or injury by disappointing the expectations upon which he acted.

Such a change of position is sternly forbidden. It involves fraud and falsehood, and

13 Carrying costs and market appreciation are computed by extending the per-annum figures

contained in the ROA for 2014-2019 (supra, paragraph c) for 2020 and 2021.

the law abhors both.' (Italics ours.) ” Mahoning Inv. Co. v. United States, 3 F. Supp.

622, 629 (Ct. Cl. 1933).

b. The Government can be equitably estopped by the authorized

acts of its agents

Circuit Judge Baldock was on the panel in Penny v. Giuffrida, 897 F.2d

1543, 1546 (10th Cir. 1990), where the court acknowledged, “Of course, the govern

ment is ordinarily bound by the authorized acts of its agents under traditional con

cepts of agency or contract law.” (italics in original). E.g., Oil Shale Corporation v.

Morton, 370 F. Supp. 108, 125 (D. Colo. 1973) (“The government can be estopped by

the conduct of its agents, within the scope of their authority”)-, accord Portmann v.

United States, 674 F.2d 1155, 1161 (7th Cir. 1982) (“ [C]ourts have tended to find no

significant obstacles to the use of estoppel based on the conduct of government

agents acting within the scope of their actual or apparent authority.”).

“Perhaps most important of the[ ] equitable considerations is the concern

that we do not allow transactions between the government and its citizens to be

come subject to whimsical, unilateral, reversals at administrative will.” Tosco Corp.

v. Hodel, 611 F. Supp. 1130, 1207 (D. Colo. 1985), appeal vacated as moot upon set

tlement, 826 F.2d 948 (10th Cir. 1987).

c. Equitable estoppel is available against the Government even

when there is a public interest or title to land is involved

The District Court in Tosco Corp. v. Hodel, supra, quoted “an annotation

dealing with the acquisition or disposal of interests in real property: ”

'despite any public interest involved ... the government

might be estopped, on equitable principles, to assert a

claim or defense, where a private party relied to his detri

ment upon statements or conduct of government officers

or agents made in connection with negotiations or agree

ments to which their authority extended.' Annotation,

Modern Status of Applicability of Doctrine of Estoppel

Against Federal Government and Its Agencies, 27 A.L.R.

Fed. 702, 736 (1976).

Tosco Corp. v. Hodel, 611 F. Supp., at 1207 (ellipsis in original). Accord United

States v. Georgia-Pacific, 421 F.2d, at 97, n. 7 ( “It is long-settled that an equitable

estoppel may be invoked even where land or title thereto is involved. Kirk v. Hamil

ton, 102 U.S. 68, 76-78[] (1880)”).

3. The panel cited three cases and not one supports dismissal of an

estoppel-defense before discovery

a. The panel misconstrued FDIC v. Hulsey which cited to FHA,

Region No. 4 v. Burr and remanded the estoppel for trial

(1) FDIC v. Hulsey, 22 F.3d 1472 (10th Cir. 1994) is an appeal from a Dis

trict Court decision that, in relevant part, granted post-discovery summary-judg

ment on Hulsey's promissory estoppel defense. The Circuit reversed and remanded

with instructions for a trial on the merits for the estoppel defense.

(2) As the panel pointed out, Petitioner “posits that HUD should be sub

ject to equitable defenses because, in this case, it is acting in the nature of a private

party seeking to enforce a contract.” App. A, infra, 4a. The Circuit, in FDIC v.

Hulsey, supra, at 1480, confirmed Petitioner's position when it stated, “In FHA, Re

gion No. 4 v. Burr, 309 U.S. 242[ ] (1940), the Supreme Court interpreted the 'sue

and be sued' clause applicable to the Federal Housing Administration. The Court

explained that when Congress authorizes an agency to engage in commercial and

business transactions with the public, it should be as amenable as private business

to the judicial process and courts should not be quick to imply restraints on suit.

Burr, 309 U.S., at 245[.]”

(3) FDIC v. Hulsey, supra, at 1481, states, “The district court granted

summary judgment on the defense of breach of contract on the basis that there was

legally insufficient evidence of ... whether the parties reached a [loan] settlement

agreement.” The Circuit concluded, “Viewing the evidence in the light most favor

able to [Larry O. Hulsey] Co., ... summary judgment was improper. We remand

this issue to the district court for a trial on the merits.” Id., at 1482.

(4) The panel stated, “The district court followed FDIC v. Hulsey,” supra,

1489-90. App. A, infra, 4a, H 1. The panel, misstates FDIC v. Hulsey, supra, at

1490, suggesting that, without limit, the Supreme “ ' Court has indicated that there

must be a showing of affirmative misconduct on the part of the government.'” App.

A, infra, 4a, ‘f 2. That quote omits the core condition: “the Supreme Court has indi

cated that to successfully assert estoppel for unauthorized acts of government

agents, the asserting party must show affirmative misconduct on the part of the

government.” FDIC v. Hulsey, supra, at 1489 (emphasis added) (citing Judge Baldock's case Penny v. Giuffrida, 897 F.2d, at 1546—47). The excerpts above are from

Part IV in FDIC v. Hulsey, which concludes: “We reverse the Order granting sum

mary judgment in favor of the FDIC and remand to the district court to apply the

law of estoppel as set out in this section.” Id., at 1490.

b. The Court of Appeals elided a quote from Wade Pediatrics v.

Dep’t of Health & Human Servs. and materially misstated and

misapplied Heckler v. Community Health Services

(1) The panel, extending its misconstruction of FDIC v. Hulsey, supra,

stated, “we see no reason why Hulsey should not apply. See [then-Circuit Judge

Gorsuch's opinion for the court in] Wade Pediatrics v. Dep’t of Health & Human

Servs., 567 F.3d 1202, 1206 (10th Cir. 2009)”:

“Courts are parsimonious about estoppel claims against

the government for good reason .... [:'When the govern

ment is unable to enforce the law because the conduct of

its agents has given rise to an estoppel, the interest of the

citizenry as a whole in obedience to the rule of law is un

dermined. Heckler v. Cmty. Health Servs. of Crawford

County, Inc., 467 U.S. 51, 60[] (1984).']”

App. A, infra, 4a f 3 (parentheses omitted).

(2) The Court of Appeals' ellipsis subverts the Court's meaning which con

tradicts the panel's contention. To evade its obligations under the Payoff Agree

ment, HUD fraudulently represented its regulations, paid for a BPO that materially

misrepresented the Property's condition, and misused public funds for the forcible

entry, seizure, and search of Petitioner's home. Only in the refusal to enforce an

estoppel against HUD is “the interest of the citizenry as a whole in obedience to the

rule of law [ ] undermined.” Heckler v. Cmty. Health, supra, at 60.

c. Adams Cty. Comm'rs v. Isaac does not support the panel's deci

sion to strike Petitioner's equitable-estoppel defense prior to

discovery

(1) The panel, quoted Bd. of Cty. Comm’rs of Cty. of Adams v. Isaac, 18

F.3d 1492, 1499 (10th Cir. 1994), that, « 1 Mere negligence, delay, inaction, or failure

to follow agency guidelines does not constitute affirmative misconduct.' Accord

ingly, the court did not err in striking the estoppel defense.” App. A, infra, 5a

(parentheses omitted).

(2) Citing to Adams Cty. Comm’rs v. Isaac, supra, at 1499, the court in

Equal Employment Opportunity Commission v. Genesco, Inc., Civ. No. 09-952 WJ/

RHS (D.N.M. May 20, 2010), pointed out:

Plaintiff also claims that as a governmental agency that

serves a public interest, it is somehow exempt from an as

sertion of equitable estoppel. ... Plaintiff cites to a Tenth

Circuit case which held that in order to assert equitable

estoppel against the government, the party seeking relief

must show that the government exhibited affirmative

misconduct. See, Bd. of County Comm'rs of County of

Adams u. Isaac, 18 F.3d 1492, 1499 (10th Cir. 1994). How

ever, Adams involved a review of an administrative order

issued by the Federal Aviation Administration, including

all the evidence contained in the record. Thus, that case

does not provide a legal basis for striking Defendant's af

firmative defenses for failure to show such affirmative

misconduct in an Answer and at the inception of the law

suit, prior to formal discovery.

Equal Employment Opportunity Commission v. Genesco, supra, at *6.

(3) Had Petitioner been required to plead affirmative misconduct, it is de

fined in Adams Cty. Comm’rs v. Isaac, supra, at 1499: “Affirmative misconduct

means an affirmative act of misrepresentation or concealment of a material fact.”

(citing cases). Petitioner pleaded affirmative misconduct in the form of fraud by

named HUD administrators which satisfied Rule 9(b):

4. Petitioner's facts satisfied the mandatory federal-pleading stan

dard but, as in Erickson v. Pardus, the Circuit interposed its own

arbitrarily high standard

a. With detailed knowledge dating from 2005 of material defects that

would be hidden by snow, HUD: (1) delayed while months of good weather passed;

(2) scheduled, then immediately canceled, a January 2015-appraisal; (3) ordered a

rush appraisal with several feet of snow present and a blizzard advisory in effect;

and (4) refused to order any valid appraisal when snows abated. Supra Part I.A

and Table 2: 1/18/02 through 09/08/15. The facts plausibly alleged that HUD in-

tended to conceal known material-defects for economic gain which met the Rule 9(b)

standard where, “Allegations of fraud may be based on information and belief when

... the [answer] sets forth the factual basis for the [defendant's belief.” George v.

Urban Settlement Servs., 833 F.3d, at 1255.

b. In its recitations to the court, HUD stated, “24 C.F.R. § 206.125 did not

apply to Ms. Golz loan in 2014.” Supra Table 2: 02/12/20. HUD, while refusing to

order its own appraisal, rejected Petitioner's appraisal and tender of payment stat

ing they did not “fully comply with HUD regulations and requirements at 24 C.F.R.

§ 206.125[.]” That now-admitted fraudulent representation made in signed letters

from the OSFAM Deputy Director and AGC Potts were pleaded by Petitioner.

Supra Table 2: 06/03 & 06/16/15 and 06/20 & 08/04/15. Those letters were signed,

affirmative misrepresentations that met Rule 9(b) requirements for fraud.

Schwartz v. Celestial Seasonings, 124 F.3d, at 1250.

c. Petitioner pleaded his letters notifying the Secretary, Novad, and

AUSA Traskos that his family was occupying the home. HUD's December 2, 2016

forcible entry and search employed HUD documents claiming possession, and Zach

Mountin represented to Det. O'Nuallain that, “'the home had been foreclosed and

HUD had taken possession of the property.'” Supra Part I.B and Table 1: 05/11/16

through 12/02/16. The facts pleaded satisfy Rule 9(b).

d. In Erickson v. Pardus, 551 U.S. 89, 90 (2007) (per curiam), the Court

stated that the Tenth Circuit “departs in so stark a manner from the pleading stan

dard mandated by the Federal Rules of Civil Procedure that we grant review.” And

“The Court of Appeals' departure from the liberal pleading standards set forth by

Rule 8(a)(2) is even more pronounced in this particular case because ... [a] document filed pro se is ' to be liberally construed, 1 ” Id. at 94 (citation omitted). William

Erickson “in addition, bolstered his claim by making more specific allegations in

documents attached to the complaint and in later filings.” Ibid.; 2 R. 298 1f 2; Supp.

2 R. 353 1| 3; Appellant's Pet. for Reh'g En Banc 1, 4—5.

e. Dr. Golz bolstered his amended answer with additional filings and ex

hibits. A list of ECF numbers was filed on April 25, 2018. 2 R. 297—98 (Part B).

The list was updated on January 8, 2019 (Supp. 2 R. 352—54) and included the coun

terclaim Petitioner submitted to HUD on May 31, 2018 as an SF-95 (id., at 357—69)

in compliance with the court's April 16, 2018 instructions. See p. 8, note 8, supra.

STATEMENT OF THE CASE: QUESTION 3

I. The panel’s decision that the closed Estate was a third party and

that Petitioner lacked standing to appeal conflicts with the plain

LANGUAGE OF SETTLED LAW

By August 2017, a default had been entered (1 R. 7:30 and 8:33) for all

named defendants (id., at 127) except the Estate and Petitioner. Br. for Appellant

16 If 3-17 1f 1. Dr. Golz, as PR, distributed the Estate's sole asset the Property to

Dr. Golz, individually, then closed probate on May 2, 2018, pursuant to state law.

Thereafter, Petitioner was the only defendant with any interest in the Property and

the sole proper-party defendant. Beginning on May 8, 2018 and extending to April

8, 2019, the District Court asserted it had probate jurisdiction to extend the Estate's

administrative period and to issue orders to Dr. Golz as its PR.

Petitioner appealed from the District Court's final order denying his sec

ond amended-answer pleading facts of the court's ongoing probate administration.

Petitioner also appealed from the court's order denying his motion to reopen the fi

nal order and judgment. Notice of App., 3 R. 463—64. The motion attached audio

recordings and transcripts of statements the Magistrate Judge made at the un

recorded January 23, 2019 status-conference and through a lawyer directing Dr.

Golz that he was required to retain licensed counsel for the closed Estate and that

the court would enter a default judgment in favor of HUD. The Court of Appeals

stated, “The appellant here is Dr. Golz individually, not Dr. Golz as the personal

representative of the Estate. ” App. A, infra, 2a.

“ I

[PJarties generally do not have

standing to appeal in order to protect the rights of third parties. 1 » Id., at 3a (cita

tion and parentheses omitted). The panel wrongly concluded that, “Dr. Golz there

fore has not established his standing to appeal from the delay in dismissing the Es

tate as a defendant. ” Ibid.

The issue on appeal and linchpin of Question 3 is that no third party ex

isted after May 2018 unless the Court of Appeals has authority to arbitrarily en

large the District Court's jurisdiction: (A) to reject the closing of probate pursuant to

state law; (B) assume probate administration, reopen the Estate, and assert contin

uing jurisdiction over Dr. Golz as PR; (C) disregard Petitioner's Rule 12(b)(1) chal

lenge to its probate jurisdiction; (D) materially violate the local rule governing the

appointment of a lawyer from the court's pro bono panel; and (E) direct a lawyer

contacted in violation of that rule to solicit Dr. Golz as a client by representing that

federal law required him to retain licensed counsel for a closed estate.

The District “ [C]ourt does not have the power, by judicial fiat, to extend

its jurisdiction over matters beyond the scope of the authority granted to it by its

creators.” Stoll v. Gottlieb, 305 U.S. 165, 171 (1938). The Court of Appeals “erro

neous affirmative conclusion as to the jurisdiction does not in any proper sense en

large the jurisdiction of the court until passed upon by the court of last resort, and

even then the jurisdiction becomes enlarged only from the necessity of having a ju

dicial determination of the jurisdiction over the subject matter.” Id., at 172.

The panel's effort to deny Petitioner a remedy for the wrong inflicted upon

him by the District Court conflicts with the straightforward requirements of

“Standing ... under Article III, § 2 ... [which] contains three requirements: injury in

fact to the plaintiff, causation of that injury by the defendant's complained-of con

duct, and a likelihood that the requested relief will redress that injury.” Steel Co. v.

Citizens for Better Env't, 523 U.S. 83, 84 (1998) (citation omitted). Petitioner's ap

peal had every element required to establish standing.

Br. for Appellant 11—26

(Part II); Appellant's Pet. for Reh'g En Banc xiii—xv (Table 3) and 12—21 (Part III).

II. Probate proceedings in the State Courts

A. On September 16, 2014, the Superior Court of Arizona, Maricopa

County, granted an application by Estate's counsel, Jon Kitchel (1 R. 251

50 and 4

R. 52:5-53:11), to admit Verna Mae's testamentary document to informal probate

and appoint Dr. Golz as PR. In re Estate of Verna Mae Golz, PB2014-051759 (Ariz.

Super. Ct. 2018). On September 26, 2014, the District Court Boulder County, State

of Colorado, admitted Dr. Golz as PR by Certificate of Ancillary Filing, In re Estate

of Verna Mae Golz. 2014-PR-160 (Boulder Cty. Dist. Ct. 2018); see 2 R. 321

2—3.

B. “An estate is a collection of the decedent's assets and liabilities. See

A.R.S. § 14—1201(17) (defining 'estate' as 'the property of the decedent') .... As

such, it has no capacity to bring or defend a lawsuit.

Simply put, an estate cannot

'act.' Rather, it can only sue and be sued through its personal representative, who

'acts' on behalf of the estate. See A.R.S. § 14—3701 (duties and powers of personal

representative).” Ader v. Estate ofFelger, 375 P.3d 97, 104 (Ariz. Ct. App. 2016).

C. Dr. Golz's Letters of PR, received by Director Himes by October 10,

2014 (2 R. 237), were filed in the District Court on February 2, 2018. Id., at 233.

D. On April 23, 2018, Dr. Golz as PR distributed the Property to Dr. Golz

individually with a PR's Deed. Boulder Cty. Recorder No. 03651957 (Apr. 24, 2018)

(2 R. 321). The Estate's Closing Statement with Dr. Golz's sworn oath, “The Estate

has been fully administered[,] ” was notarized by Mr. Kitchel and filed on May 2,

2018 in the Superior Court of Arizona, Maricopa County. Supp. 2 R. 109—10.

E. “In an unsupervised administration, the personal representative can

distribute assets and close an estate informally and without court order. A.R.S. §§.

14-3704, 14-3933.” In re McGathy, 226 Ariz. 277, 278 (Ariz. 2010).

«I

Informal pro-

bate is conclusive as to all persons until superseded by an order [entered] in a for

mal testacy proceeding,' (A.R.S. § 14-3302) [.]” Matter of Estate of Torstenson, 125

Ariz. 373, 375 (Ariz. Ct. App. 1980) (brackets in original).

III.

Proceedings in the District Court

A. The April 16, 2018 hearing14

1. The court warned Petitioner of a potential default-judgment be

cause “an estate cannot be represented by a pro se litigant”

The Magistrate Judge stated, “at all times a Federal Judge has to look at

14 Hearing is used as the Magistrate Judge sought testimony from Dr. Golz in context “with

definite issues of fact or of law to be tried, in which witnesses are heard[.] ” Black's 649.

the jurisdiction that they have and the position of the parties. And Federal Law

says that an estate cannot be represented by a pro se litigant, that it must be repre

sented by an attorney” (4 R. 36:1—6), or “a default would be entered against them

and a default judgment, because I didn't make the rules up, they just simply do not

allow non-natural persons to be represented pro se.” Id., at 36:15-17. Petitioner

stated, “ a PR deed to the property from the Estate to myself ... would eliminate the

Estate, and I would be the sole remaining Defendant, and it would simplify mat

ters.” Id., at 36:22-37:6. Br. for Appellant Ilf 3-12 f 1.

2. HUD's stated reason for alleging Verna Mae breached the Note as

a claim on the Estate was to evade Petitioner's affirmative de

fenses arising from another contract—the Payoff Agreement

a. AUSA Jasand Mock stated, “I think Mrs. Golz had moved to Arizona

by perhaps as early as 2009, which is a breach of the notes ... then we shouldn't be

talking about any of this affirmative defense as to whether or not HUD - [.] ” 4 R.

41:2—12; Appellant's Pet. for Reh'g En Banc 13 f 3-14 f 2.

b. The Magistrate Judge pursued HUD's allegation, asking: “Doctor Golz,

where was your mother living in 2010?” 4 R. 42:4-5. “ [WJhere your mother lived is

relevant ... if a breach occurred as early as 2009 or 2010, ... thereafter whatever

happened is not relevant to the issues in the case, because ... the debt was owed as

early as seven or eight years ago.” Id., at 45:7—18; but see Supp. 2 R. 168 f 3—170 f

2, 175—219, and 273, n. 2 (documenting HUD's lender's material breach at loan orig

ination and discussing Colorado contract-law).

c. Dr. Golz answered, “I have public records up and through 2013, you

know, driver's license, pictures of her, dated with her friends, in front of her house,

and her eating out at a local restaurant.... All my mother did was, ... after living in

10 years of a sub-standard environment, she died on May 16, 2014, when she was

down here visiting me.” 4 R. 46:17-47:1. “So going back beyond May 16th, first of

all, it has nothing to do with me and I can't testify to that. And I can't - because I

was not my mother's custodian, and that was her responsibility.” Id., at 48:19—22.

B. The court overruled Petitioner's closing of the Estate pursuant to

state law and disregarded his assertion that the motion to dismiss

the Estate should be evaluated pursuant to Rule 12(b)(1)

1. On April 25, 2018, Petitioner attached the PR’s Deed to a one-paragraph motion to dismiss the Estate, stating, “Plaintiffs foreclosure claim attaches

to the Property, and ... Defendant therefore moves the Court for the immediate dis

missal of the Estate as a party to this action.” 2 R. 305 f 2; Br. for Appellant 12 ^ 2.

2. On April 27, the District Judge referred the motion to dismiss to the

Magistrate Judge whom “liberally construed [it] as brought pursuant to Fed. R. Civ.

P. 12(b)(6) with documents outside the pleadings,” (2 R. 323) (parentheses omitted).

The documents—provided in answer to the court's April-16 question, “where was

your mother living in 2010”—included: “Nederland Post Office, 07/29/2010, Sales

Receipt, Golz, Verna, Box/Call Number 328, Paid by: Personal Check $44.00” (id.,

at 312); and “Colorado Driver License, Issued: 04-26-2013, Verna Mae Golz, 130 N

Beaver Road [sic], Nederland, CO 80466” (id., at 319). The court, citing those docu

ments, and the PR's Deed, sua sponte converted the motion to dismiss to a motion

for summary judgment by the Estate (Court's Summary-Judgment Motion). Id., at

323. Appellant's Pet. for Reh'g En Banc 13 Tf 2—14

3. In a May-3, text-only entry (1 R. 15:107), the District Judge denied Pe31

titioner's objection (see Supp. 2 R. 100) to the April-27 minute-order converting the

motion to dismiss the Estate into the Court's Summary-Judgment Motion.

4. Petitioner's May 7, 2018 response concerning pro se representation of

the Estate stated, “that, as a matter of law, the Court must dismiss the Estate[.] ”

Id., at 104 1 2. The response attached the Closing Statement which was executed

by Dr. Golz as, “An administrator appointed by a state court [a]s an officer of that

court;” Byers v. McAuley, 149 U.S. 608 (1893). Br. for Appellant 12 f 3—14 f 1.

5. “'Without jurisdiction'”— to reopen probate administration —“'the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law,

and when it ceases to exist, the only function remaining to the court is that of an

nouncing the fact and dismissing the cause.' Ex parte McCardle, 7 Wall. 506, 514

(1869).” Steel Co. v. Citizens, 523 U. S., at 94. On May 8, the court was required to

note for the record that the Estate had been closed and that HUD's foreclosure

would proceed against Dr. Golz. Instead, asserting authority to overrule the statelaw closing of the Estate, the court issued a minute order stating:

Dr. Golz filed a motion to dismiss the Defendant Estate of

Verna Mae Golz from this case ... resolution of Dr. Golz’s

motion may be contingent on whether he may properly

seek any relief on behalf of the Estate, which will be re

solved with the Court’s consideration of the Plaintiffs

Statement [ECF No. 102] and Dr. Golz’ response to the

statement [see Minute Order, ECF No. 105].

Supp. 2 R. 117

2,3 (brackets in original) (emphasis added); Br. for Appellant 14.

6. HUD's May-17 response to the Court's Summary-Judgment Motion be

gins, “Dr. Golz’s motion to dismiss the Estate should be denied” (Supp. 2 R. 125),

for which HUD claimed standing because the “ Estate is a proper defendant. Under

federal law in the Tenth Circuit, an estate is a legal entity. See United States u.

Stubbs, 776 F.2d 1472, 1475 (10th Cir. 1985).” Supp. 2 R. 135. HUD elided the Cir

cuit's statement that, “A probate estate is a legal entity ... during the period of

administration.” United States v. Stubbs, supra, 1475 (emphasis added). And Es

tate administration had been closed since May 2, 2018. Br. for Appellant 15 f 1—16

1; Appellant's Pet. for Reh'g En Banc 14

4r-15 Tf 1.

7. The District Court disregarded Dr. Golz's May 22, 2018 reply (Supp. 2

R. 168 t 2) that his “motion to dismiss the Estate should have been evaluated pur

suant to ... Fed. R. Civ. P. 12(b)(1), for lack of subject-matter jurisdiction:” citing

“Byers v. Mcauley, 149 U.S. 608 (1893); see also, e.g., Sutton u. English, 246 U.S.

199 (1918).” Supp. 2 R. 169

2; Br. for Appellant 13 If 2-14 1 1; Appellant's Pet. for

Reh'g En Banc 15 ^f 2-16 Tf 1.

8. “Courts have an independent obligation to determine whether subjectmatter jurisdiction exists, even when no party challenges it.” Arbaugh v. Y & H

Corp., 546 U.S. 500, 514[ ] (2006)[.] ” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).

C. The judicial officers violated Attorney Rule 15 for the purpose of di

recting a lawyer to inform Dr. Golz that the closed Estate required li

censed counsel

1. The District Judge affirmed his authority to decide whether to re

quire licensed counsel for the closed Estate

After May 22, Petitioner's next filing, on September 14, began, “Without

leave from the Court to do otherwise, Defendant is restricted to filing this Objection

solely in his personal capacity.” 2 R. 353 K 1; Br. for Appellant 16 K 3—18 If 1. Ad

dressing the Objection on October 4, 2018, the District Judge stated: Dr. Golz “clari-

fies that he is objecting solely in his personal capacity because it has not been deter

mined whether he can represent the estate pro se. That is an issue that has been

separately briefed and referred to the magistrate judge for a report and recommen

dation.” 2 R. at 403, n. 3 (ECF Nos. omitted).

2. Meredith Callan told Dr. Golz, “I was contacted by Judge

Hegarty” and “You do need representation on the Estate matter”

The Magistrate Judge had issued no report and recommendation on pro se

representation of the Estate, but Dr. Golz was informed of the court's decision by

Ms. Callan. Her December-19 email and letter to Petitioner each stated, “Judge

Hegarty recommended that I contact you regarding 17-CV-01152 ” (3 R. 401—06). On

January 8, 2019, Ms. Callan left a recorded voice-message:

This is for William Golz. My name is Meredith Callan,

my phone number is 720-636-0696. I’m an attorney in

Denver. I’ve been trying to get a hold of you. I sent you

an email and a letter to your address in Arizona. I was

contacted by Judge Hegarty to assist you on your case.

You do need representation on the Estate matter.

Dr. Golz did not reply to Ms. Callan's written- or voice-messages. 3 R. 408—14 (Tr.s)

and Supp. 1 R. (audio CD). Br. for Appellant 18 *[[ 3—19 ^ 1. Petitioner had made it

clear to the court that he wished to proceed pro se and why. Supp. 2 R. 13 ‘fl 2-14

1 and nn. 1—2; id., at 34, n. 1; and id., at 63

3—64 f 2 and n. 14.

3. Magistrate Judge Hegarty stated, “the Government is simply go

ing to win this case because an estate can’t represent itself ”

At the January 23, 2019 conference, Magistrate Judge Hegarty, referring

to “Meredith” (3 R. 430:17), stated:

I actually have a lawyer here — in the courtroom — who's

willing to represent [the] estate ... But it looks like the

Government is simply going to win this case because an

estate can’t represent itself. It has to be represented by a

lawyer and not by a natural person. [Id., at 430:2-8.] I’ll

be issuing an order to show cause why a default should

not be entered for Mr. Golz and the Estate of Verna Mae

Golz failure to appear at a scheduled court hearing. [Id.,

at 431:11-13.]

Id., at 427—32 (Tr.); Supp. 1 R (audio CD); Br. for Appellant 19 f 2-21 ]f 1.

4. The judicial officers violated Attorney Rule 15

a. Magistrate Judge Hegarty's January-23 courtroom-minutes stated,

“Meredith Callan, pro bono counsel [was] contacted to represent the Estate of Verna

Mae Golz.” 3 R. 109. The local rule (D.C.COLO.LAttyR 15:Civil Pro Bono Repre

sentation) (Attorney Rule 15) is provided in the ROA (3 R. 110-15) and in this peti

tion (App. D, infra, 31a-35a). Petitioner had made no request and was not eligible

(see Supp. 2 R. 298) for pro bono counsel. D.C.COLO.LAttyR 15(e). The judicial of

ficers violated the appointment procedures of Attorney Rule 15:

b. In Trujillo v. City of Denver, No. 14-cv-02798-RBJ-MEH (D. Colo. Nov.

6, 2015), Magistrate Judge Hegarty granted a motion for an eligible “plaintiff, Ms.

Trujillo, an impecunious [the court believed] and legally unsophisticated person.”

Id., at *4.

“This district has a Civil Pro Bono Program”, Judge Jackson stated,

where, “In cases deemed appropriate the court through the Clerk's Office contacts

the volunteer panel[.]” Id., at *2; D.C.COLO.LattyR 15(f).

D. The District Judge denied Petitioner a reconstruction and eviden

tiary hearing and leave to amend to fashion a remedy for his injury

from the court's actions in 2018 and 2019 absent any jurisdiction

1. Petitioner's February 7, 2019 response to the court's January-24 order

to show cause stated: “The Estate is a nullity which can neither be noticed nor ap

pear at any conference nor can it retain legal counsel. ” Br. for Appellant 21 K 2.

2. On February 20 (3 R. 146—47, Part (B)) and February 28 (4 R. 57:22—

61:22 and Supp. 2 R. 414—17), Petitioner moved for a hearing to obtain testimony

and enter evidence to reconstruct the unrecorded January-23 conference and deter

mine the content of and reason for Magistrate Judge Hegarty's unlawful communi

cations with Ms. Callan. On March 1, the District Judge denied Petitioner's eviden

tiary and reconstruction hearing, stating, “I reviewed the file entries for the period

December 18, 2018 to January 23, 2019. I found absolutely nothing indicating any

improper conduct by Magistrate Judge Hegarty.” Br. for Appellant 21 f 3—23 ^ 1;

Appellant's Pet. for Reh'g En Banc 17

1—2.

3. On March 5, 2019, the Magistrate Judge issued a recommendation to

“Dismiss the Estate as a Defendant” (EOF 156). 3 R. 167—70. Petitioner filed an

“objection to ECF 156 as void for lack of jurisdiction” (id., at 185-201), providing a

timeline of District Court actions in context with State Court probate-filings with

appropriate authority. Dr. Golz also notified the court of his impending request for

an extension of time, or temporary stay, to research and write a second amendedanswer and an objection to the Magistrate Judge's March-13 recommendation on

HUD's summary judgment motion. Id., at 200—01, Part (B). Petitioner advised the

court of his prescheduled, international business-travel for the first three weeks of

April. Br. for Appellant 23 ]f 2.

4. Petitioner filed a March-27 motion, stating, “Facts and Defendant's

schedule require this stay and extension” (Supp. 2 R. 427), disclosing that, “HUD

would not oppose a 30-day extension to May 1, 2019 for that objection.” Id., at 425.

As further good cause, Dr. Golz explained: “ Notwithstanding that the ' absence of

any jurisdiction over a legal nullity was absolutely clear to the judicial officers ...

they demanded that Defendant draft needless responses and spend hundreds of

hours in legal research.' (Supp. 2 R. 423 1 1).” Br. for Appellant 24 If 1 (emphasis

added) (brackets omitted).

5. On March 29, the District Judge denied Petitioner's stay and unop

posed extension of time in a text-only entry. 1 R. 20:165. Dr. Golz canceled his pre

paid international-travel to the conference he was to attend by invitation and filed a

proposed, second amended-answer on April 1. That answer pleaded the facts of the

misrepresentation of the court's probate-jurisdiction in 2018 and 2019 by the judi

cial officers, Plaintiff, its counsel, and a lawyer on the court's pro bono panel; this

was a new defense where the court's claimed authority over probate administration

was continuing.15 3 R. 251-60 ^Hf 131—42; Br. for Appellant 24 If 2.

6. The estate was closed on May 2, 2018. More than eleven months later

the District Judge named the Estate as a defendant in his final order on April 8,

2019. 3 R. 354-68. That order described Ms. Callan's January 8, 2019 claim (“You

do need representation on the Estate matter”) and Judge Hegarty's January-23 di

rection from the bench (“the Government is simply going to win this case because an

estate can’t represent itself ”) as the court's “ efforts to assist the Estate in obtaining

counsel from this district’s civil pro bono panel. ” 3 R. 366 f 2.

7. It is plain on the face of the record that Judges Jackson and Hegarty

violated Attorney Rule 15 to employ Ms. Callan in the misrepresentation that the

15 Although the facts were pleaded as a defense, “Federal Rule of Civil Procedure 8(c) provides

that 'the court on terms, if justice so requires, shall treat the pleading as if there had been a

proper designation.'” Reiter v. Cooper, 507 U.S. 258, 263 (1993).

court had jurisdiction to extend probate administration and the authority to enter a

default judgment against Dr. Golz if he did not acquiesce to Ms. Callan's “represen

tation on the Estate matter.”

8. “A district court has discretion to adopt local rules. Frazier v. Heebe,

482 U.S. 641, 645[ ] (1987) (citing 28 U.S.C. § 2071; Fed. Rule Civ. Proc. 83). Those

rules have 'the force of law.

Weil v. Neary, 278 U.S. 160, 169[ ] (1929).”

Hollingsworth v. Perry, 558 U.S. 183, 191 (2010). “The Court's interest in ensuring

compliance with proper rules of judicial administration is particularly acute when

those rules relate to the integrity of judicial processes.” Id., at 196.

E. The District Judge's order denying the motion to reopen the final

judgment, stating that Petitioner's recording of the January 23, 2019

“proceedings were surreptitiously recorded in Magistrate Hegartys

court,” is in conflict with settled law

1. As discussed above, the court denied Petitioner's right to an eviden

tiary and reconstruction hearing to admit the audio recordings and transcripts con

comitant to the examination of witnesses, and that right was denied again when the

court refused him leave to amend.

2. On May 6, 2019, Dr. Golz again attempted to secure his right to a hear

ing with witnesses with a “motion to open the final judgment to make new findings

of fact and law... ” (ECF 176). 3 R. 371—99. That motion transmitted audio record

ings (1 R. 20:174) with typed transcripts of Ms. Callan's voice messages (3 R. 408—

14) and of the unrecorded January-23 conference (id., at 416—32). The audio record

ing and transcript of the January 23, 2019 conference was submitted with a decla

ration stating, in pertinent part, that:

Pursuant to 28 U.S.C. § 1746, I, Annette T. Golz, make

the following declaration: the status conference tran

scribed above originated at 10:27 a.m on January 23, 2019

when I answered my home phone (480) 816-5019. The

caller ID reported the number as (720) 556-2776, and the

caller identified himself as Assistant United States Attor

ney Jasand Mock.

To the best of my ability, my above transcription and my

audio recording from my iPhone 6s, including the copy of

that recording (blue-sleeved CD) that I am providing with

this transcription, are a complete and accurate record of

the January 23, 2019 status conference. I declare, under

penalty of perjury, that the foregoing is true and correct.

3 R. 432.

3. Two days after receiving the motion to open the final judgment and its

exhibits, on May 8, the District Judge entered a text-only “ ORDER denying 176 Mo

tion to Alter Judgment. Furthermore, if proceedings were surreptitiously recorded

in Magistrate Hegartys [sic] court, that is entirely inappropriate.”

Id., at 440

(brackets omitted).

4. On May 13, 2019, Petitioner attached a memorandum of law to a mo

tion which stated (id., at 445 t 4): “Arizona law, Colorado law, and federal law all

permit the recording of phone calls by any party to the call. E.g., United States v.

John J. Johnson, No. H-92-152 (S.D. Tex.), United States' Memorandum of Law on

Admissibility of Tapes and Transcripts (Feb. 15, 1994),” (3 R. 453—58).

5. The typed transcript and audio recording of the January-23 conference

(3 R. 434—37) were served through AUSA Mock who initiated and was present at

the conference on Respondent (Supp. 2 R. 629-48) whom requested no corrections

(id., at 652) in Petitioner's statement of evidence (id., at 654-77).

REASONS FOR GRANTING THE PETITION

As set forth in the petition, the actions of the District Court and the Court

of Appeals' order and judgment sanctioning those actions directly and materially

conflicts with Colorado Supreme Court precedent, the intent of Congress, Tenth Cir

cuit law, and relevant decisions of the Court. Hollingsworth v. Perry, supra, 196

(Under the Supreme “Court's Rule 10(a) the Court will consider whether the courts

below have 'so far departed from the accepted and usual course of judicial proceed

ings ... as to call for an exercise of this Court's supervisory power')” (ellipsis in origi

nal) (parentheses omitted).

CONCLUSION

The Court should grant this petition for a writ of certiorari.

Respectfully submitted,

May 13, 2021

William Golz, Ph.D.

Petitioner, Pro Se

29714 North 152nd Way

Scottsdale, Arizona 85262

Phone: (480) 816-5019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.