emergency motion to dismiss or stay sheriff sale

[Pleading Title] - 1

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IN THE UNITED STATES EASTERN DISTRICT COURT

JP MORGAN :

Plaintiff : # 05579-12

v. : Chester County

T Patrick Murray : Civil Foreclosure Action

Tanuja Singh Murray :

Defendants/Appellants 12(b) MOTION

EMERGENCY 12(b) MOTION TO DISMISS OR STAY SHERIFF SALE

UNTIL AFTER APPEAL AND FEDERAL CLAIM ADJUDICATION

Home is the American dream. It is the biggest purchase of our lives, and our lives are

lived within this sacred space. Is there such thing as a lawful foreclosure?

Yes, of course there is… but this is not one of them. As a former attorney with an

MBA who practiced in two states and federally, I am SADDENED AND

SHOCKED that we have to resort to these motions after months of clearly notifying

all parties of the errors that led us here- not to mention the inexplicable and

indefensible action by the trial court to take $119 from us as a fee for our timely filed

Petition To Open with attached Answer and New Matter and then promptly…

ignore it’s existence.


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But there is something more simple and elegant that should stop this madness-

proof of the truth… evidence of owner identity, and confirmation of fraud and lies by

both Chase and Phelan Law Firm, who continue their RICO crimes unchecked by

any court we are aware of.

NEW EVIDENCE: THE MORTGAGE IS VOID

In the Batipps case, it is concluded that the proper reading of §444 is that it

provides that an improperly acknowledged mortgage is “per se fraudulent.”

For the last 5 years, through 3 different lawsuits arising from alleged default,

Chase has averred and sworn under oath that it holds the Note and Mortgage of

$600k executed on 10/15/04 and that there was and is no assignments or other title

chain complexities. Days ago, we discovered what we knew was true- Chase and

Phelan conspired to lie to us and to this Court- to all Courts, in fact.

See Exhibit A. It speaks for itself. The Note (as well as the mortgage as per

exhibit) were ASSIGNED not TO CHASE but FROM CHASE to Wilmington

Trust as trustee for Structured Assets Trust (SASCO-4XS) and therefore, quite and

elegantly simply, Chase is proven to have no standing, Chase is proven to have

committed fraud, Chase is proven to have perjured themselves and Phelan was the

collusive co-conspirator executing all of this criminal strategy.


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DISCUSSION

The Standard for Dismissal Under Fed. R.C.P. 12(b)(6)

The dismissal of a complaint for reasons of fraud or factual insufficiency is

explained by Fed. R.C.P. 12(b)(6) (“Rule 12(b)(6)”) as all civil complaints “must set

out sufficient factual matter to show that the claim is facially plausible” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

In deciding a Rule 12(b)(6) motion, a court must accept as true all factual

allegations contained in the complaint and construe all reasonable inferences drawn

therefrom in the light most favorable to the plaintiff- unless proof is uncovered that

evidences those presumed truthful averments as fraud and lies.

As explained by the Supreme Court: “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to “state a claim to

relief that is plausible on its face.”

A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted

unlawfully. In short, proof is in the pudding- and until now, we only knew that


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Chase was not the holder in due course, but an audit revealed the foundation of their

false claim and fraud upon the court.

Where a complaint pleads facts that are “merely consistent with” a defendant’s

liability, it “stops short of the line between possibility and plausibility of ‘entitlement

to relief.’”Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 556-57 (2007).

Applying the standard enunciated by Iqbal, the Third Circuit in Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) explained that courts should

conduct a two-part analysis to determine whether a claim survives the Rule 12(b)(6)

motion.

First, a court must distinguish between the factual and legal elements of the

claim. Second, a court must determine whether based upon the facts alleged the

plaintiff has a plausible claim for relief.

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft, 129 S.Ct. at 1949.

A court may not accept as true “threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Fowler, 578 F.3d at 210 quoting

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).


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Until now, all we had was a he said we said Mexican stand-off… now we have a

smoking gun and Chase has it’s fingerprints all over it.

NO DUE PROCESS BEFORE DEPRIVATION OF PROPERTY

The Due Process clauses of the 5th and 14thAmendments to The Constitution

of the United States provide a guarantee of procedural due process before property is

taken, and that minimum due process must be maintained and enforced by the

courts- the branch of the government with the power to decide these “civil capital

punishment” cases of foreclosure, which is the most significant deprivation of life,

liberty or property one may ever endure or is ever likely to traumatically occur.

As the court is obligated to provide procedural due process in this matter, we

demand a hearing as to our Petition To Open Judgment improperly entered by

Chase, as well as in reference to their Motion To Recalculate Damages which ignores

both Petition to Open/Strike/Set Aside and Notice of Appeal as well.

As procedural due process consists of 1) Notice; and 2) Opportunity to be

heard, we heretofore have not enjoyed one minute of on the record hearings in this

very important matter whereby a plaintiff is fraudulently attempting to steal our home

without standing to do so, and to date, been enabled (innocently perhaps) by the

system of the courts which has not protected our rights.


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We asked for a hearing and were ignored- and never even saw the face of the

judge in this case. There are only pleadings as a record, and despite the right to

judicial process in foreclosure in PA and our responsive pleadings filed LAST YEAR

(not to mention the answer and 500 pages of other pleadings we filed in the previous

action regarding the identical cause of action) that should have not allowed the filing

of a default praecipe, as we have not had “our day in court”.

By refusing to provide us with a hearing on the Petition to Open timely filed,

as well as compliance with your May 28th order citing statement of errors timely

mailed, we have been deprived of our right to procedural due process and thereby

estopped any process from lawfully proceeding to the “Opportunity to be Heard”?

The Fourteenth Amendment provides that no state shall deprive any person of

life, liberty, or property without due process of law. U.S. Const. amend. XIV

PROCEDURAL HISTORY

In 2004 we bought a home for 750k, putting up 150k in cash. Only one of us

signed the Note and both signed the Mortgage, which was not countersigned. At the

time, we thought by fraudulent inducement that we were in fact being lent real

money- cash of the bank called Chase.


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We deposited nearly 20k in the initial escrow account, and while we paid over

four grand a month faithfully, a recent pleading by Plaintiff/Chase cites figures that

are so wrong it should be a crime, literally. See Exhibit W (W for wrong).

We made EVERY payment of over $4000 a month for 60 months straight

until the crash of 2008 saw the loss of employment and income for both of us.

In 2007, 2008 and 2012 J.P. Morgan initiated Foreclosure Action in Chester

County Court regarding alleged default by Defendants.

In the Foreclosure Action, J.P. Morgan sought to foreclose on the Mortgage.

The Mortgage secured a note executed August 11, 2005 in the amount of $1,462,500

(the “Note”). Both the Note and Mortgage were originally executed in favor of Chase

Home Finance LLC- and through three foreclosure lawsuits, no assignment was

recorded nor averred nor mentioned nor admitted to.

Why? Because the truth is the enemy of the criminal, and Chase is the mafia of

Manhattan, the Feudal Lord of the Federal Reserve… they are Butch Cassidy and the

Sundance Kid without the looks, charm and panache.

Faulty Default and the Non Event- No Proceedings Before The Court

In order to comply with Pa.R.C.P. every complaint in mortgage foreclosure

shall contain proof of standing- as recently the Superior Court decided in my brother’s

case (Chase v. Francis X Murray) so ruled and reversed judgment.


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Rule 237.5 for the form of notice of intention to enter a judgment by default:

(b) This rule does not apply to a judgment entered

(1) By an order of court,

(2) Upon praecipe pursuant to an order of court, or

(3) Pursuant to a rule to show cause.

Official Note

Rule 3284 requires that in proceedings to fix fair market value of real property

sold, notice must be given pursuant to the requirements of Rule 237.1 et seq

ABUSE OF DISCRETION by CHASE, PHELAN and INNOCENT

ERRORS BY PROTHONTARY AND INACTION BY COURT

There is nothing of record to establish justification for the procedural error of

ignoring our petition to open, or our request that the court simply “correct error” and

remand for trial as we had received a trial date listing! All of this should support the

reversal of judgment and granting of our timely filed petition to open with answer and

counter claims new matter.


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“A petition to open a default judgment is an appeal to the equitable powers of

the court, and absent an error of law or a clear, manifest abuse of discretion, its

decision thereon will not be disturbed on appeal.” Kelly v. Siuma, 34 A.3d 86, 91

(Pa. Super. 2011), appeal denied, __ Pa. __, 42 A.3d 294 (2012).

“An abuse of discretion occurs when a trial court … overrides or misapplies the

law, or exercises judgment which is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill will.” Id.

Appellants have failed to develop any argument in support of their position that

the default judgment should have been opened. Our Rules provide that an appellant’s

argument must contain citation to relevant authorities as well as reference to the

portions of the record and evidence that support the issue on appeal. See Pa.R.A.P.

2119(b)-(d).

The Sanction Issue

The Phelan firm filed documentation averring fraudulently that Chase as their

client was and still is the real party in interest as of the date of the filing of the lawsuit

in all past and present foreclosure actions filed by the firm.

Nevertheless, when we filed our responsive pleadings to this lawsuit, we sought

and were denied sanctions against both Chase and Phelan. There was no hearing on

sanctions.


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Without the opportunity to be heard, we were denied procedural due process as

a prerequisite for being sanctioned. Without procedural due process, the court

presumably had no authority to sanction the law firm.

There’s another possible authority to use as ground to attack those who file

suits without authority of “real party in interest”— they are vexatious litigants.

Because mortgage deeds have been resold by banks and bundled into “tranches”

that are sold all over the earth, you can bet that 30 to 60% of all foreclosures filed by

plaintiffs who don’t have the real mortgage deed to prove they are the real party in

interest.

Therefore, Phelan and other law firms that function as “foreclosure mills”

routinely file foreclosure actions without the authority of the “real party in

interest”. That suggests that if you had ten cases filed by those attorneys, at least three

of them would be without the authority of the real party in interest.

If the cases were already resolved, the foreclosure actions would probably have

been successful in that defendants probably didn’t understand Rule 17(a) and

unwittingly “assented” to lose their homes. I wouldn’t bet that such past cases could

be used as evidence of “vexatious litigants” since the attorney’s won (if unfairly) those

lawsuits.


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But if a defendant in one current foreclosure action found that Chase and

Phelan have filed many foreclosures without a “real party in interest,” then there

would be evidence of a recurring pattern of lawless conduct by bank and their law

firm. Such pattern might be grounds for “vexatious litigant” charges, recurring

barratry charges or even a RICO suit. We are filing a Federal lawsuit in the amount of

one trillion dollars- no joke- to establish a legal aid fund for families unable to hire

counsel.

As a result of Chase’s wrongful and deceitful actions, investors purchased what

were purported to be, but were in reality not, our Note and Mortgage was sold and

thusly satisfied when conveyed to a securities backed trust on Wall Street in a pool of

hundreds of other mortgage notes in the manner required to establish the trust in the

manner represented- but then those derivatives lost value when home prices collapsed

and the securitization and bifurcation of the note and mortgage presented, well, a

major legal hurdle for judicial foreclosure.

FACTS

The factual and procedural histories of this action go beyond this case- and the

complexity of this is compounded by the fact that the certified record on appeal is the

sum of the pleadings, as no hearing was ever granted despite our requests for a

hearing.


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For reasons quite legitimate, we did not file an answer but a half dozen motions

as our responsive pleading. The Court waited until Thanksgiving to deny two of

them- and then served the order to a random Malvern address (see docket).

Add this to the fact that Judge Shenkin, who presided over the two year fight

over the identical cause of action, issued an order in September 2012 that prohibited

all parties from filing any pleadings regarding this cause of action- if we did so, they

would be legally “moot”.

This Court and this case never reconciled the paradox of these parallel

jurisdictional claims, for Judge Shenkin could have simply ignored the pleadings of

this case for lack of jurisdiction- but he clearly saw that Chase was forum shopping in

bad faith.

Chase did not file a single pleading for 10 months… no reply to any of our

motions to dismiss, or even a reply to our Motion for Sanctions.

Then, without requisite 10 day notice, on 4/17/13 Chase filed a praecipe for

the entry of default judgment and the Prothonotary entered judgment in his favor on

that date. On 4/28/13 Appellants presented a petition to open tmely filed with

answer and new matter, as well as a motion to strike the default judgment and a

motion to stay the sheriff sale to the trial court, which resulted in absolutely nothing

but the chirping of civil court crickets.


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We repeat- the petition and the motions were ignored.

In our answer to complaint we set forth counterclaims, including wrongful

foreclosure, fraud and usury, to name a few crimes we aver were committed.

As stated, the Shenkin case was revivable- but they did not cite it as required on

the cover page of new complaint. Therefore, both of which were active during the

events at issue here, evidenced by the SHENKIN order in 9/13.

COURT OF LAST RESORT

Despite the fact we filed a petition to open the default judgment timely, we

seek the relief of this court because the trial court refuses to address our pleadings.

The trial court entered NO order denying or granting petition to open- and no refund

of our $119 was issued- a gross injustice. In 2013, the case was scheduled for a trial

and a notice of listing was mailed.

Yet Chase did not manage the case and conduct discovery as per their burden-

and we raised the fact that there had been no ruling on Petition by letters sent to

Judge, Sheriff, Prothonotary, Phelan and Court Administraor: Exhibit M. Sensing the

possibility of being stuck waiting for a decision on the Petition, we waited 29 days and

since no action on the Petition was taken by the Judge and no error correction was

executed by any party empowered to do so, we insured ourselves.


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Aware of the possibility of due process after the fact and filed a notice of appeal

from the faulty default judgment, not order.

As a result of intersection of the Rules of Appellate Procedure and existing case

law, the relief requested by Appellants is paradoxical, as we could not wait past 30

days to “see” if the judge would rule.

Although orders of court denying motions to strike or petitions to open default

judgments are interlocutory, what is a judgment improperly signed by a prothonotary

illegally?

Pennsylvania Rule of Appellate Procedure 311 provides that “[a]n appeal may

be taken as of right … from [a]n order refusing to open, vacate or strike off a

judgment. If orders opening, vacating or striking off a judgment are sought in the

alternative, no appeal may be filed until the court has disposed of each claim for

relief.” Pa.R.A.P. 311(a)(1).

We could not have appealed from the trial court’s denial of their petition to

open until the trial court ruled on said Petition (or any of the Motions).

Furthermore, the notice of appeal filed cited with specificity the trial court’s

failure to even address the petition to open the default judgment. As seen in K.H. v.

J.R., 573 Pa. 481, 494, 828 A.2d 863, 871 (2003) (“[A] notice of appeal from the

entry of judgment will be viewed as drawing into question any prior non-final orders)


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While we know an order is not final for purposes of appeal unless it disposes of

all the claims of all the parties, as per Pa.R.A.P. 341, and despite the filing of our

answer and new matter counterclaims pending since no determination has been made

on the Petition, many Motions nor the amount of damages- which Phelan unilaterally

declared in violation of PA law and rules.

Pa.R.A.P. 311(a)(1) created an exception to this rule where an appeal is taken

from the denial of a petition seeking relief from a judgment by default.

This is even worse- there is no denial, only non action that is illogically

unappealable as you cannot prove the negative or appeal a non order.

We contend that the trial court erred in failing to address the Petition to Open,

the Motions for Relief from Error and Mistake, the Motion To Stay Sale, etc. The

court should have striken the default judgment entered as Chase failed to mail us as

well as attach to praecipe a copy of the 10 notice to enter default judgment prior to

filing the praecipe for default judgment.

DISCUSSION

We know that we must exhaust all local remedies before seeking the attention

of the higher Courts. But as the sale is still pending- only 3 weeks away- we must have

the attention in this matter of an objective jurist. Our children, our lives are

depending on due process.


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‘Where a fatal defect or irregularity is apparent from face of the record, the

prothonotary will be held to lack authority to enter default judgment and default

judgment will be considered void.’ Id. Chase Bank, N.A. v. Lupori, 8 A.3d 919, 920-

21 (Pa. Super. 2010).

Pennsylvania Rule of Civil Procedure 1037(b) provides, in pertinent part, that

“[t]he prothonotary, on praecipe of the plaintiff, shall enter appealable as of right prior

to the assessment of damages”. Well, they did not let the Court compute damages.

Thus, we aver this Court has jurisdiction to determine both this appeal and motion to

stay sheriff sale despite the fact that the question of damages remains outstanding (see

Motion to Reassess Damages by Chase and Reply, Exhibit R)

This court has held that “it is an elementary procedural safeguard to require

that the party seeking entry of a judgment which deprives his opponent of his ‘day in

court’ … should first shoulder the simple burden of submitting proof that he has

given notice to his opponent that the opponent has come under a duty to appear in

the case or suffer judgment by default.” Rosser, 75 Pa. D&C.2d at 470-71.

In the present case, we allege that we were not properly served with the 10 day

notice, nor the orders sent to the wrong address, nor the service of sheriff sale notice

was proper. In fact, it was served to a mentally disabled incompetent we care for

without compensation. Not only may the prothonotary NOT provide equitable relief,


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nor compute damages without evidence, it is the duty of the prothonotary to insure

that the prerequisites for entry of a default judgment have been satisfied before

entering a default judgment. Bank One Delaware N.A. v. Mitchell, 2005 WL

1362010 (Pa. Com. Pl. 2005). Unless otherwise provided by statute or rule of court,

a copy of all pleadings, petitions, motions, rules or answers thereto, or notices or other

papers required to be served on another party, shall be served in the manner provided

by Pa.R.C.P. 440 which governs the service of papers other than original Process.

The 10-day notice was required to be served on us then pursuant to state rule,

and that 10- day notice had to be attached to motion for default judgment. We were

neither sent notice nor was notice purported to be sent by attachment to praecipe (yet

the attorney swore under oath it was sent- perjury, simply).

This limitation is consistent with Pa.R.C.P. 239(b)(1), which provides that

“local rules shall not be inconsistent with any general rule of the Supreme Court or

any Act of Assembly.” Pa.R.C.P. 239(b)(1).

Pa.R.C.P. 237.1 does require the 10-day notice to be filed with the filing of the

praecipe for entry of default judgment. This is clear language in Pa.R.C.P. 237.1

should have prevented entry of default.

Moreover our Petition should have reversed it. Yet it was not denied or

granted- just ignored like other motions and pleadings.


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We also argue that the trial court erred in NOT DETERMINING a timely

petition to open default judgment which was paid for by check for $119.

In ignoring the petition to open the default judgment, the trial court not only

has erred, but the Court, with respect, in fact abused their discretion as the certified

record does not contain any order relating to filed petition to open.

QUESTIONS

Whether the entire case is precluded by res juditca/collateral estoppel?

Whether the NEW EVIDENCE of assignment FROM Chase to a trust should

move this court to dismiss this action, or perhaps a Federal Court hearing a 12(b)

motion to dismiss based on fraud and new evidence?

Whether the default judgment entered against the Appellants violated

Pennsylvania Rules of Civil Procedure 237 et seq. and is therefore void?

Whether the trial court erred and abused its discretion by NOT RULING on

Appellants’ petition to open the judgment entered improperly without 10-day notice

attached and with computed unsupported damages by default?

JURISDICTION

This court may address the issue of our petition only absent a misapplication of

the law or a clear abuse of discretion by the trial court. See Boatin v. Miller, 955 A.2d

424, 427 (Pa. Super. 2007).


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We aver that the trial court erred in not denying but IGNORING their

petition to open and motion to strike default judgment because judgment “violated

PA Rules of Civil Procedure 237 et seq. and is therefore void.”

INVALID JUDGMENT, WRIT and LIEN/RIGHT TO SALE

Under Pennsylvania law, liens are classified into three categories: (1) common

law liens; (2) statutory liens; and (3) equitable liens. An equitable lien is an equitable

remedy designed to provide redress in cases where the obligor’s retention of property

or proceeds thereof would constitute unjust enrichment.

The creation of an equitable lien arises from proof of (1) an obligation; (2) a res

to which the obligation attaches; and (3) an intent held by all the parties that the

property is to serve as security for the obligation.

Kern v. Kern, 892 A.2d 1, 8 (Pa. Super. 2005); Hoza v. Hoza, 448 A.2d 100,

104 (Pa. Super. 1982) (setting forth burden to establish an equitable lien).

The Defendants also contend that an equitable lien granted to J.P. Morgan in

the amount of $700k plus against the Property (the “equitable remedy only a court

can order”) and imposed by the Chester County Court pursuant to NOT any signed

order by a Judge but a mere fatally defective praecipe and motion for default

judgment signed improperly by Prothontary and dated April 17, 2013 (the “improper

judgment”) is voidable even without the timely filed Petition to Open.


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It must be struck as two fatal defects appear upon its face, quite glaringly.

Lack on notice sent to us, and lack of notice attached to motion/praecipe.

Additionally there should have been no computation of damages by anyone but the

Court.

THE FAULTY DEFAULT JUDGMENT

Prothonotary does not have the judicial power to enter a monetary judgment

for unliquidated damages (without any direction from a court) based solely on a

plaintiff’s request for a default judgment. At most (and this too is contested), the

Prothonotary can only enter into the docket a default judgment for liquidated

damages that can be mathematically computed from the attached documents. See Pa.

R. Civ. P. 1037(b)(1) which provides:

(1) The prothonotary shall assess damages for the amount to which the plaintiff

is entitled if it is a sum certain or which can be made certain by computation, but if it

is not, the damages shall be assessed at a trial at which the issues shall be limited to the

amount of the damages.

Here, those documents (like the account statements) were not even attached to

the plaintiff’s foreclosure complaint as required by Pennsylvania law. See Pa. R. Civ.

P. 1019(i).


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A fortiori, judgments entered by Prothonotary, and absent court direction, that

include unliquidated damages (like the so-called “reasonable” attorney fees) are void.

Pennsylvania Rule of Civil Procedure 237 delineates the procedure for the

notice of praecipe for final judgment. Pa.R.C.P. 237.1(a) specifically provides:

(2) No judgment…by default for failure to plead shall be entered by the

prothonotary unless the praecipe for entry includes a certification that a written notice

of intention to file the praecipe was mailed or delivered… (ii)…after the failure to

plead and at least ten days prior to the date of the filing of the praecipe to the party

against whom judgment is to be entered… Pa.R.C.P. 237.1(a)(2)(ii).

In the instant case, the trial court offered the following analysis relative to

Appellants and Pa.R.C.P. 237 et seq.: A petition to strike a judgment will only be

granted where a fatal defect in the judgment is apparent on the face of the record. See

Williams [v. Wade], 704 A.2d [132,] 134 [(Pa. Super. 1997)] (quoting U.K LaSalle,

Inc. [v. Lawless], 618 A.2d [447,] 449 [(Pa.Super. 1992)]).

Here, the record does not evidence service of 10 day notice but shows Chase

did not attach the ten day notice of intention to take default judgment required by

Rule 237.5.


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We did not provide any other address of record for service of pleadings and

notices. See Pa.R.Civ. P. 440(a)(2). Yet the Malvern address is there is black and

white (Exhibit M).

Pa.R.C.P. 237 did require Bank to file the ten-day notice of its intent to seek a

default judgment with the praecipe for default judgment. See Pa. R.C.P. 237.

Bank only had to certify in its praecipe to enter default judgment that the

notice had been provided to Appellants in writing, at least ten days prior to the filing

of Chase’s praecipe and was further obligated to attach to its praecipe a copy of the ten

day notice. See Pa.R.C.P. 237.1(a)(3).

A cursory reciew of the praecipe to enter default judgment reveals that Chase

through Phelan did not comply with Pa.R.C.P. 237. What greater fatal defect in the

judgment [that] is apparent on the face of the record can there be other than no notice

and no attachment of notice? We contend that trial court erred and abused its

discretion by ignoring Appellants’ petition to open the default judgment.

To open a default judgment, the movant must promptly file a petition to that

effect, must plead a meritorious defense to the claims raised in the complaint, and

then provide a reasonable excuse for not filing a responsive pleading, and we did so

within 10 days. Seeger v. First Union National Bank, 836 A.2d 163, 165 (Pa. Super.

2003).


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Here, petition to open was filed 10 days after the default judgment was taken.

This was a prompt filing. See, e.g., McCoy v. Pub. Acceptance Corp., 305 A.2d 698,

700 (Pa. 1973) (finding two and one-half week delay in filing petition to open after

default was not prompt filing as a measure of timeliness).

We certainly have shown we have a defense to merits of mortgage foreclosure

action either in their petition or in answer, and the new assignment evidence. See

Boatin v. Miller, 955 A.2d 424, 429 (Pa. Super. 2008) (explaining “that in order to

state a meritorious defense, a petitioner need only allege a defense that entitles him to

a judgment in his favor, if proven at trial”). We have done so.

Our excuse for not filing an answer is a reasonable one. We received the

redundant complaint despite the Shenkin case that should have been revived. No

order was sent to us by Judge Griffith (sent to Malvern address) and no 10 day notice

of intention to take default judgment were sent to the address of us, the

Defendants/Appellants.

ESTOPPAL AND RES JUDICTA

Elkadrawy v. Vanguard Group., Inc., 584 F.3d 169, 173 (3d Cir. 2009)

recognizing res judicata bars party from bringing claims that could have been brought

as a part of prior action); Olick v. House (In re Olick), Adv. No. 10-38, 2011 WL

2565665, at *4 (Bankr. E.D. Pa. Jun. 28, 2011)


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“The doctrine of res judicata bars not only claims that were brought in a

previous action, but also claims that could have been brought in that action arising

from the same transaction or occurrence.”).

Chase decided to drag us through two years of discovery and on the eve of 2010

trial, dismissed it unilaterally without our consent or even notice. Therefore, as there

was no external excuse for why they withdrew the case other than the knowledge of

lack of standing and possible criminal charges for fraud, Chase deprived itself of the

second bite at the apple, which is allowed for Plaintiffs who cannot, for a reason other

than the prospect of losing, go to trial.

And if it were a legitimate cause, they would have revived it two years later

rather than file a new case- seeking in bad faith to distance itself from the very

incriminating Shenkin record.

But they lied, about everything.

“So long as the federal plaintiff effectively seeks to negate the force of the

judgment, it is not possible for the federal court to exercise jurisdiction without

exercising appellate review of the validity of the state court judgment.” In re

Sabertooth, LLC, 443 B.R. 671, 685 (Bankr. E.D. Pa. 2011).


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Since we have encountered inexplicable inaction from the trial court (a

misnomer as we have not enjoyed one minute inside his courtroom) this Federal

Court is not barred from yielding justice of a temporary injunction or righting the

procedural errors and mistakes both intentional and innocent.

Unlike many attempts to attract the gavel of the Federal jurists by foreclosure

defendants, this case should be viewed as exempt from the preclusions presumed

pursuant to the Rooker-Feldman Doctrine, as this court not only does NOT lack

subject matter jurisdiction to hear the our claim, it has, we aver, a moral responsibility

to act upon it- if only to deny it.

We are stunned that our Petition was ignored along with a dozen other

motions (attached as Exhibits) we filed and we do not accuse the Judge of any crimes,

only unaccounted and unjustified inaction betrayed by the back and white proof of

the docket truth.

EXCEPTION TO ROOKER FELDMAN

Even if our claim seems barred by application of Rooker-Feldman Doctrine,

our claim regarding the invalidity of the judgment based upon the Mortgage

assignment fraudulently concealed are not barred by issue preclusion as we brought all

of these affirmative defenses up in both the case pleadings in this matter and the

preceding action with Judge Shenkin which yielded over a THOUSAND PAGES.


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This record of discovery helped us and hurt them, resulting in their strategic

dismissal/forum shopping which is the case at bar.

We seek a determination by this Court that the Equitable Lien is not

enforceable because the Mortgage and Note is NOT OWNED BY CHASE. Because

the imposition of a sheriff sale is an equitable remedy the default judgment is

improper. In cases where a mortgage is invalid due to fraud or forgery, Pennsylvania

courts have refused to grant an equitable lien or relief of sheriff sale as a remedy.

See, e.g., In re Fowler, 425 B.R. 157, 208 (Bankr. E.D. Pa. 2010) (recognizing

that prior to imposing an equitable lien Pennsylvania courts consider the balance of

equities, including the relative culpability and innocence of the parties, to determine

whether equitable lien is warranted); Williard v. Millersburg Trust Co., 48 Pa. D.&C.

2d 149, 160 (Ct. Com. Pl. 1969)

“The doctrine of res judicata bars not only claims that were brought in a

previous action, but also claims that could have been brought in that action arising

from the same transaction or occurrence.”

We did in fact raise these defenses may be remedied by this Court if the facts

averred by us are indeed valid and true.

We Satisfy the Requirements for Injunctive Relief


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A movant must, in accordance with Federal procedures, satisfy the applicable

standards for injunctive relief. In re Wedgewood Realty Group, Ltd., 878 F.2d 693,

701 (3d Cir. 1989). To be eligible for injunctive relief a party has the burden of

establishing each of the following: (1) a substantial likelihood of success on the merits;

(2) the party will suffer irreparable harm in the absence of injunctive relief; (3) the

harm to the party outweighs the harm to its opponent that may be caused by

injunctive relief; and (4) injunctive relief is in accordance with public interest.

“The burden lies with the plaintiff to establish every element in its favor, or the

grant of a preliminary injunction is inappropriate.” P.C. Yonkers, Inc. v. Celebrations

Party Seasonal Superstore, 428 F.3d 504, 508 (3d Cir. 2005)

We agree that this is our burden, and we offer the proof of the newly discovered

evidence, the fact that Chase made us litigate for two years IN VAIN and dropped the

case when we DEFENDED IT SO WELL they knew they could not win- why else

would they dismiss and WAIT TWO YEARS until AFTER the national settlement

was signed before they REFILED WITHOUT MANDATORY referencing of the

preceding case they should have simply revived as discovery was complete. So the fact

that Chase has no standing by proof of the recent assignment we found meets the first

condition (1) a reasonable likelihood of a successful defense; the scheduled sale of our

home on 8/15/13 meets requirement two by placing us in a position of danger.


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This is real imminent, irreparable harm to the homeowners; our situation is

similar to millions of others experiencing fraud in foreclosure and our home represents

.0000000000001% (roughly) of JP MORGAN CHASE’s balance sheet IF THEY

OWNED THE LOAN so they would not be so harmed.

Yet denial of an injunction we will either LOSE OUR HOME or be forced to

FILE BANKRUPTCY to protect where our children sleep, eat and live- so we meet

the third and fourth prong of the test as (3) the balance of the relative harm between

the homeowners and the largest bank in America would be restrained; and (4) the

balance between public interest in successful bankruptcy reorganizations and other

competing societal interests.

We established a likelihood of success on the merits by virtue of forcing their

hand in 2010 when they blinked when we told them we knew not only that they did

NOT own the note, but that if we went to Court, we may be able to not only

disprove that by omission but evidence the identity of the true owner- which we do

now today with Exhibit A.

One of us, again, is a former attorney who despite being a calculus teacher now

who can still retain deep inside my educated brain presumed our timely Petition

would return litigation to the status of April 16th and proceed to discovery and trial.


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We had no reason to suspect the Prothonotary would allow judgment to be

taken by default with such defects. We have offered a meritorious defense in the

Petition, that is, one which is sufficient to justify relief if proven. See SEPTA v.

DiAntonio, 618 A.2d 1182 (Pa. Commw. 1992).

The trial court did not make a ruling for the Petition but we urge this court to

assess our answer and counter claims for their level of merit- or, easier and quicker, see

Exhibit A and anyone with a reasonable mind would agree that the default judgment

should thus be opened and that, MOST IMPORTANTLY, the sheriff sale of our

home- which Chase we can now prove is but a servicer (if that at all, as NO BILLS

have been sent to us since 2010) should be stayed pending adjudication of the state

appeal and the Federal lawsuit we are filing.

By granting a stay and/or TRO the Court will allow for a due process decision

of the merits of that issue as well as a dozen more, from standing to sanctions, fraud to

financial accounting. Further, the default judgment entered may be opened by this

court and remanded back to trial court as an alternative to the TRO and/or stay of

sale. As Chase did not offer any explanation for its failure to respond to Counter

claims as well as every motion we filed, their silence and failure to refute, deny or

rebut averments of fraud, usury and other crimes both civil and criminal are by default

stipulated as silence is assent.


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Violation of Rule 1037(b)(1) Unliquidated Damages and Void Judgments

The amount of the illegal and improper April 17th 2013 default judgment by

Chase for $700k plus AND THEIR MOTION FOR RECALCUALTION of

damages which they curiously WITHDREW after our scathing REPLY cannot be

computed from the documents that Chase attached to its foreclosure complaint

because, well, Chase did not attach anything to the 3 page complaint nor with any of

its pleadings- in fact, they failed to reply to ANY of our motions- they all went

uncontested, even the Petition, and yet, all were denied or ignored.

Act 6 (41 P.S. 503) Court And Only Court Can Determine Reasonableness

of Attorney Fees in Foreclosure Proceedings

Chase or its debt collector, Phelan, as noted above, calculated and determined

the reasonableness of its own attorney fees and then made an award of those attorney

fees ($5,000) to itself.

There was no court determination of whether (or not) those fees were

reasonable or even had been incurred by plaintiff. Pennsylvania Act 6, 41 P.S. 503

and the note and mortgage here, explicitly require that the court award lender’s

counsel attorney fees for foreclosure proceedings. See generally Bavarian Motor

Works v. Neal, 882 A.2d 1022 (Pa. Super. Ct. 2005).


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If a borrower or debtor, including but not limited to a residential mortgage

debtor, prevails in an action arising under this act, he shall recover the aggregate

amount of costs and expenses determined by the court to have been reasonably

incurred on his behalf in connection with the prosecution of such action, together

with a reasonable amount for attorney’s fee. In addition, the court, not the lender,

must determine who, if anyone, is the “prevailing” party. See LIPA, 503. No such

court determinations were made here, as evidenced by the docket entries. For

example, the note only authorized “reasonable” attorney fees as required by

Pennsylvania law. Loan Interest and Protect Law, 41 P.S. 403 (“LIPA”).

But the foreclosure complaint (and the default judgment) included fees of

$5,000 that had only been alleged to be “reasonable” without any documentation.

Any lender (or debt collector) under a note much less a mortgage without a

Note and clearly under Pennsylvania law is not authorized to unilaterally determine

the reasonableness of its own fees. LIPA, 503. Only a court, not the plaintiff acting

sua sponte, can determine what foreclosure fees are “reasonable.”

Pennsylvania law prohibits pre-foreclosure filing attorney fees in excess of $50,

LIPA, 406(3)(e). Therefore Pennsylvania law limits fees to only those fees that are

“reasonable and actually incurred by the lender.” LIPA, 406(2).


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Here, no pleading regarding the alleged $5,000 as a “reasonable” fee was

incurred or already paid by the lender or trustee to its foreclosure counsel for this

foreclosure proceeding was filed, or if filed, it was withdrawn… nor was there any

pleading that would support the reasonableness of those fees.

Other Unauthorized, Undocumented AND Inaccurate Charges

As set forth in our Verified Answer and New Matter it is believed and therefore

averred that there were a number of other unauthorized, undocumented charges, both

in our unpaid principal balance account and in escrow account. The charges, in part,

are highlighted by our specific exhibit of the closing document (Exhibit Z) of the

escrow we funded, and in our answer and New Matter, which are incorporated herein.

Moreover, it is believed and therefore averred that (1) the prerequisites to the

imposition of certain of those charges required advance notice which was not provided

and (2) some of our payments were misapplied misallocated, including payments that

were placed in non-interest bearing so-called “suspense” or “unapplied balance”

accounts.

These defenses are also set forth in our Verified Answer and are incorporated

herein.


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FAILURE TO PROSECUTE IN GOOD FAITH

Remember- Chase filed the complaint in June of 2012 and then disappeared-

they stalled and waited until the right moment and without sending us a 10 day

notice, obtained by guile their faulty default judgment no pun intended.

We filed a timely notice of appeal despite the Petition to Open pending, as we

frankly anticipated the reality of the lack of due process- the judge should have

addressed this petition in April but now it is July and still- nothing. We provided to

the trial court the ordered itemization of errors and mistakes both in a memo and in a

motion that was filed but rendered moot as the prothonotary stated (in the docket-

they gave us no notice of this) that the pleadings were unsigned- so we are unsure if

the Judge saw them- there is a double standard epidemic against pro se litigants, and

this comes from a former licensed attorney in three jurisdictions. We have paid all fees

and we have filed a Motion to Stay Sheriff Sale in May with Chester County- but like

the Petition, it has been ignored. According to the docket, a default judgment was

entered that day. We seek to open that judgment in order and we know that, if our

Petition had NOT been ignored, we would only be entitled to relief if we indeed show

that (1) our petition had been promptly filed, (2) their failure to act before the default

judgment was entered can be excused, and (3) they have a meritorious objection. See

Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984).


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The petitions to open were filed 4/28/13 ten days following entry of the bogus

judgment. Any court should, in a microsecond, find the petition to be timely.

Ironically, Chase’s silence regarding their failure to respond to our Motion to

Dismiss, our Motion For Sanctions, our Motion To Correct Errors, our Motion to

Strike Judgment and last but not least the vast averments of our Counter-Claims prior

to entry of the default judgment makes little legal strategic logic.

Prior to the default, we had actively participated in the litigation by way of the

slew of UNCONTESTED MOTIONS filed in JULY of 2012 and not determined

until FOUR MONTHS LATER and then it was mailed to the wrong address in the

docket. That is central to why we did not produce an Answer- coupled with the

SHENKIN ORDER of 9/12 that rendered all pleadings relating to this cause of

action MOOT and the bad luck of not being mailed order nor the trial listing

reminder (sent to Malvern address). How can Chester County court system allow this

to happen? We know what we are doing and we can still not stop this runaway train.

How can the prothonotary deny us default judgment yet enter Chase’s default without

a) the attached notice and b) without any accounting of nearly million dollars they

seek and then disregard our default judgment praecipe filed by us properly structured

with notice attachments and without seeking a sum specific as valid where a party,

served, fails to answer or defend a suit filed against them?


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We ask the Court to recognize the pattern here, and ask themselves:

1) Why the double standard?

2) Why was Petition to Open… ignored? We paid $119 and it was cashed…

3) Why did the judge address the later filed Notice to Appeal (which we filed as insurance as we feared the injustice that occurred- the Judge would ignore it!)

We aver the trial court abused its discretion. The April 17th 2013 judgment was

fatally defective, and the subsequent Writ was obtained before 10 days had elapsed- in

effect, denying us the window for Petition to Open which we filed timely- exactly 10

days after the default judgment was improperly entered.

As our petition was timely and contained the requisite showing that Appellants

had a meritorious defense to the underlying action and a reasonable explanation for

their failure to file a responsive pleading.

We therefore ask the Court to reverse the trial court’s order- excuse us- there is

NO ORDER- we mean the judgment- a void judgment “stamped” with the signature

of the prothonotary on the default judgment- and address the Court’s unexplained

negligence in NOT DENYING NOR GRANTING Appellants’ petition to strike or

open the default judgment.


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We moved for a default judgment on its CounterClaims against Chase for

failure to file an Answer thereto- and despite the ATTACHMENT OF 10 DAY

NOTICE and NO REQUEST FOR SUM SPECIFIC MONETARY DAMAGES as

only a court hearing can make such a calculation and determination- our praecipe was

ignored by prothonary last week and NOT EVEN ENTERED as improper or

defective- it was just tossed in the trash.

The next day we sent a check for the appeal to them- and they certainly

acknowledged and cashed that fee payment in the docket. Why?

Why did they sign defective default judgment for Chase without notice

attached and with unsupported damage amounts unverified and unaccounted for in

the high six figures, which is illegal and improper as per PA law?

SERVICE ERRORS

Since we must articulate all errors and mistakes, it needs to be noted that Chase

served the notice of sheriff sale to a non relative who is mentally disabled. According

to Exhibit E, this service was performed at the incorrect Malvern address first, then

the correct one. However, this is not proper service, as a mentally disabled non-

relative we voluntarily care for is not a competent adult by legal standards and did not

inform us of the service, as he is clueless.

FEDERAL DEBT COLLECTION ACT VIOLATIONS


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In violation of FDRCPA, Chase and Phelan sent to us a FAKE COURT

NOTICE as evidenced by exhibit F (F for fake) which at first glance is clearly

constructed to appear as an official court communiqué, just to intimidate and scare

defendants.

This is not only another example of the dozens of frauds throughout this case-

it violates the Least Sophisticated Debtor rule by confusing the Defendant.

Worse, it is fraudulent in content.

The notice sent with the default judgment but BEFORE any writ was

obtained, tells us that OUR HOUSE IS ALREADY SCHEDULED FOR

SHERIFF’S SALE ON 8/15/13.

Repeat- before waiting to see if we filed a Petition to Open and before getting a

proper Writ of Execution, heck- before going to the Sheriff to approve it all- they just

play God and say that the sale is happening- in fact, on page two, it states that the

property was “seized”- not “going to be seized” but the past tense suggesting to even

an imbecile that the conveyance has already occurred (in direct contradiction of both

reality and the boilerplate notice on page one advising us that we have rights and we

can do this or that to stop the sale).


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CONCLUSION

On April 17th 2013, the Defendants filed a praecipe for default judgment- yet

they PAID THE FEE 3 days prior, before it was granted. Why? It’s a sure thing when

you are part of the system, sadly…We contend that J.P. Morgan’s mortgage on the

Property should be invalidated because, among other things, they ASSIGNED IT TO

A TRUST IN 2005 and NEVER GOT IT BACK- and therefore quad erat

demonstratum, this case must be dismissed at most, opened at least and the sale must

be stayed. If we do not obtain a stay or TRO, we will be forced to stop the sale by

filing bankruptcy, which will deepen the damage done to us by the private and public

parties involved. Certainly, the Federal lawsuit for wrongful foreclosure and fraud we

are filing will be augmented by any involuntary bankruptcy filing, and we will seek

remedy for this wrongful sale if it proceeds without the allowance of due process and

our DAY IN COURT.

WHEREFORE, for reasons stated above and in our Verified Answer and counter

claims, as well as numerous motions, it is respectfully requested that this Honorable

Court strike and/or open the default judgment (for the reasons stated above and

including the fact that it is void by failure to attach 10 day notice and computation of

damages without the Court), the new evidence discovered proving that this entire case

is based upon lies and Chase sold the Note and assigned the mortgage in 2005.


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Also, we seek the Court to allow us to obtain the default judgment ignored and denied

by prothonotary (Exhibit D) by Chase’s failure to answer the new matter counter

claims in our attached Verified Answer and New Matter attached to the Petition to

Open we filed timely within 10 days of default judgment entry.

Also, we ask the Court to declare the mortgage and any other claims or rights claimed

by J.P. Morgan under the mortgage against the Plaintiffs, including any “equitable

liens” invalid as per the newly discovered evidence of the assignment in 2005 FROM

Chase to SASCO 4XS;(2) enjoin the original third foreclosure action 05579-12 as it is

barred by collateral estoppel and based solely on the validity of the note and mortgage

Chase and Phelan conspired for 5 years to conceal the true holder of and assignment

to;(3) declare that J.P. Morgan may have committed fraud and this request for

sanctions against them and Phelan required a hearing and finally that Chase has no

valid claim in this case and should be dismissed with prejudice and award us

reasonable attorney’s fees and costs for defending the invalid action 3 times over FIVE

YEARS all for what is a fraudulent (and frivolous) legal action that reflects a federal

racketeering enterprise of a lily white collar nature or, in not, at least (4) grant a TRO

or stay of sheriff sale pending the appeal and adjudication of our Federal lawsuit (5)

provide any other relief which this Court may deem necessary.


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Chase and Phelan deserve sanctions and a check and balance for this egregious and

continually unchecked abuse of discretion and fraud upon the courts.

We have filed this Injunction Motion in an EMERGENCY BASIS because of

the time restraints and the newly discovered evidence. We have hereby requested that

the Court consider the matter on an expedited basis.

Chase’s Complaint failed to comply with the pleading requirements set forth by

the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and contained only vague conclusive

statements. Most believe that remedy of any nature is barred by the Rooker-Feldman

doctrine that precludes the Court from reviewing and/or overturning the state court

judgments. But that is not applicable here- because the Court MADE NO

JUDGMENTS! The Court ignored Petition and other Motions, and denied the

existence of our counter claims when the default judgment we sought last week was

ignored by Prothonotary. Therefore, as the trial court LITERALLY failed us by

omission and inaction or intentional negligence or innocent incompetence, we seek

not only the appeal of the non judicial default judgment but for this court to DO

THE RIGHT THING- which is not siding with us on the merits of our

defense/counter claims- but opening the judgment or issuing a stay pending the

adjudication of due process in all forums and jurisdictions for this issue.


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But we realize that Federal courts are very cautious about this issue- and may

think they must exercise abstention given that the validity of the Mortgage is the

subject in the State Court that has demonstrated an inexplicable inconsistency in

attending to his responsibility for objective determination of legal questions that CAN

DESTROY LIVES if mishandled not unlike a criminal capital case. This court should

impose a stay and have case remanded by another judge in the county- although we

are filing a RICO/fraud federal lawsuit as well.

As Chase has sued us three times for the exact issue we aver it is precluded by

the doctrine of collateral estoppal and res juditca as it has had the opportunity to

already have been fully litigated by the parties for more than five years.

By this appeal and motion for stay as well as the counterclaims we aver are valid

and not dead on arrival, this case continues to be litigated, and as per the NEW

EVIDENCE it clearly involves several other defendants relating to the SASCO trust

and none of whom are parties to the present action and do not appear to be subject to

this Court’s jurisdiction.

Finally, we would have the opportunity to seek to be released from the

Mortgage as the assignment not only released grantors (Chase and us) from the benefit

of the mortgage and note, but also the responsibility.


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As the validity of the Mortgage assignment is undisputed and FILED BY

PLAINTIFF in order to cover their… assets… they did so without fanfare, or any

constructive notice to us or the Court. They did it to rewrite history, we theorize, as

we informed them that this case was larger than a typical foreclosure, as an award

winning documentary filmmaker is making a film about this particular case as well as

the case involving my brother and parents- a foreclosure action against my relatives by

none other than CHASE presided over by none other than Judge Griffith. With

improbabilities like that, we should play Mega Millions.

J.P. Morgan has NOT been determined to be the holder in due course and thus

standing. Had Chase evidenced some ownership of the Note, this Court would

indeed be prohibited from reviewing a decision by a state court, but as we cited, this

appeal is anomalous as it seeks the action of the Federal court because the trial court

has evidenced patterned abuse of discretion and bad faith whether innocent or

intentional. We hope this Court refuses to tolerate Chas and Phelan’s successful

manipulation of the court and their attempt to use the back door to steal a home

whose loan we today have proven they DO NOT OWN.

We ask the Court specifically to examine the collusive attempt by Chase and

Phelan to strategically re-litigate matters that could have been decided in 2010.


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We are simply attempting to stop a sheriff’s sale based on an illegal default

judgment entered by a crooked law firm working for the largest bank in America who

did not hold mortgage nor own the note at the inception of this case or the TWO that

preceded it, and committed again and again and again fraud upon this and other

Courts.

Please be the Court that STOPS THIS RACKETEERING FRAUD- as we not

only seek justice for us, but all those victimized in the past, present and future.

Prepared By:

_______________________ ______________________ ________

Tanuja Singh Murray, JD, MBA Timothy Patrick Murray DATE

Pro Se Defendants/Appellants

emergency motion to dismiss or stay sheriff sale

Documents