Appellant requests oral argument of this appeal
UNITED STATES COURT OF APPEALS 5th CIRCUIT
600 S. Maestri Place / New Orleans, LA 70130
Case #14-51224; USDC#1:14-cv-733
DAVID MCCRAE, QUI TAM
CONSUMER FINANCIAL PROTECTION BUREAU, and CLASS
PHH MORTGAGE CORPORATION and
BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP
MORTGAGE AND CONSUMER FRAUD - COMPLEX
APPEAL OF FINAL JUDGMENT
BRIEF FOR APPELLANT
DAVID MCCRAE , PRO SE XSTEK99@GMAIL.COM
350 CEE RUN
BERTRAM, TEXAS 78605 512.557.0283
CERTIFICATE OF INTERESTED PERSONS
UNITED STATES OF AMERICA - CONSUMER FINANCIAL PROTECTION BUREAU, Plaintiff-Appellee,
David McCrae, Plaintiff-Appellee,
PHH MORTGAGE CORPORATION, dba BURNET MORTGAGE SERVICES, CENTURY 21 MORTGAGE, COLDWELL BANKER MORTGAGE, DOMAIN DISTINCTIVE PROPERTY FINANCE, ERA MORTGAGE, INSTAMORTGAGE.COM, MORTGAGE SERVICE CENTER, MORTGAGEQUESTIONS.COM, MORTGAGESAVE.COM, PHH MORTGAGE SERVICES; DEFENDANTS
BARRETT, DAFFIN, FRAPPIER, TURNER AND ENGEL, LLP; DEFENDANTS
*If you make your living loaning money at interest, or in real estate speculation and trading, or are now homeless, you may have strongly held personal opinions that should prompt your recusal from this case.
*If you work in law enforcement, or a law practice with an inordinate concentration of either plaintiffs or defendants, you should consider recusal.
ORAL ARGUMENT REQUESTED
I’d like to appear to present oral argument in this matter. I’m not an attorney so I would appear Pro Hac Vice. I’m not going to read the complaint, all set out in 30 pages or less. I wrote it, you’ve read it. You have an opinion already. Like Officer Monday, I’ve stuck to the facts. I try not to judge. If I had my druthers, I would just call the Marshal and haul these people off to jail. They’re from New Jersey. What else would they expect?
But, I digress...they’re also from America. In America, we’re a family. We’re better. We’re entitled to confront our accusers. Our accusers are allowed to confront us. In complex cases, we collect a jury of impartial citizens. This is not the case in most little countries in the world, where people just get their heads chopped off. I’ve had a sad experience with these people. If I thought that this was just an unfortunate series of events, I wouldn’t waste your time. I would go play golf. I’d go swimming. I’m retired; I have a million commitments today that I’m not going to get to.
But, I digress..the first time I called a lawyer to get this straightened out, I apologized for taking up her time with such a simple matter of obvious confusion. People were trying to steal my house. It looked like a professional crew. Ann actually gave me some good advice. She said ‘Why don’t you just pay them?’ That was in February of 2012. I should have gotten a Title Loan and just paid them off. Then we could go play golf today; none of us would have any work. I didn’t pay the ransom. I like my house. I still live in my house. It cost me money. I want my money back.
But, I digress...the first response of the defendants’ in this case was ‘We didn’t do nothin’. He still lives in the house. It’s just business.’ I’ve decided that this is a business we don’t need. Other people in my neighborhood feel the same way. A friend of mine in California lives in her car. She used to live in a house. In California, at least they have nice beaches. People live there. No dogs, though. A friend of mine in Idaho lives in a connex box. I’ve lived in connex boxes, out on the ocean. Houses are nicer. I have 290 other friends who have these problems. There are probably more out there. We will eventually retain counsel, charter a Class, amend our complaint, and proceed through our pretrial motions until we’re all prepared and informed. We are not at that point yet.
But, I digress...we aren’t going to solve this problem today. We’re not going to pass messages back and forth and see who’s right and who’s wrong. The solution is not in the back of the book. We’re talking about more than $75,000. We’re talking about my house in Texas, and a bunch of other people spread out over 45 other states. You have that jurisdiction. We need help. I pick up the phone, and talk to people in Pakistan to help me out. It’s daytime over there, when it’s night over here. I have a blog. Consumer fraud is a hot topic on Google.
But, I digress...Today, I have a proposal, and I’d like to advocate it. I’d like to shed some light on your concerns. I’d like to find out more from my counterparties. I’d like to share our thoughts. The case is closed in Texas, on motion from the defendants, with little discussion. In fact, none. We still have issues. They’re on somebody else’s docket now. It’s five o’clock somewhere. I’d like to remand this case back to Texas, complete our pretrial responsibilities to the best of our ability, and try these issues before a jury. I thought we were doing just that. I think the judicial system, and the jury system, is an incredibly good system for solving problems. This is a problem, in every town in America. Let’s use the system. Let’s get a jury together. Let’s get them the best information we can collect. Let’s disclose all our facts, and let’s decide all our issues. Let’s deliberate, and let’s make some intelligent changes. It’s 2014 in America. It’s modern times. Let’s act like citizens. Let’s do our jobs. Let’s solve some problems. I need your help.
TABLE OF CONTENTS
TABLE OF AUTHORITIES 3
GLOSSARY OF ABBREVIATIONS 4
PHH - PHH Corporation, Defendant, in business in 46 states excluding Hawaii, Illinois, Nebraska and Colorado 4
BDFTE, LLP, or BBDFTE, LLP -Barrett, [Burke], Daffin Frappier, Turner, and Engel - Agent of PHH Corporation in Texas and California 4
FIRREA - Financial Institution Regulatory and Reform Act of 1989, clarification of lawful and unlawful business practices in the United States 4
TILA-RESPA - Truth in Lending Act-Real Estate Settlement Procedures Act, clarification of lawful and unlawful business practices in the United States, latest rules have been issued for comment, revised and scheduled to take effect in 2015 4
FRAP - Federal Rules of Appellate Procedure, latest revision 5
JURISDICTIONAL STATEMENT 6
STATEMENT OF ISSUES 6
STATEMENT OF CLAIM 12
STATUTES AND REGULATIONS 13
STATEMENT OF THE CASE 14
OUR PRAYER 15
TRIAL EXHIBITS 18
This case was judged and dismissed without trial. 18
CERTIFICATE OF SERVICE 19
TABLE OF AUTHORITIES
Federal Rules of Civil Procedure Rule 38
Federal Rules of Appellate Procedure Rule 3
Financial Institution Recovery, Reform and Enforcement Act of 1989 (FIRREA)
Dodd-Frank Financial Reform Act of 2012
Real Estate Settlement Procedures Act of 2015 (The TILA-RESPA Final Rule)
The Decalogue 20:15-17
Commentaries on the Laws of England - Wm. Blackstone
Fed Up! - Rick Perry
Win Your Case - Gerry Spence
Greedy Bastards - Dylan Ratigan
Web of Debt - Ellen Hodgson Brown
Do - A. C. Ping
A Fighting Chance - Elizabeth Warren
Bull By The Horns - Sheila Bair
The Merchant of Venice - Wm. Shakespeare
The Revolution - Ron Paul
All The Devils Are Here: The Hidden History of the Financial Crisis - Bethany McLean and Joe Nocera
Broke - Glenn Beck
The Best Way to Rob a Bank Is to Own One - Bill Black
Know How - Ram Charan
The No Asshole Rule - Robert Sutton
The Big Short: Inside the Doomsday Machine - Michael Lewis
The Law Hour and Editorial Review - www.GeorgeGordon.org
GLOSSARY OF ABBREVIATIONS
PHH - PHH Corporation, Defendant, in business in 46 states excluding Hawaii, Illinois, Nebraska and Colorado
BDFTE, LLP, or BBDFTE, LLP -Barrett, [Burke], Daffin Frappier, Turner, and Engel - Agent of PHH Corporation in Texas and California
FIRREA - Financial Institution Regulatory and Reform Act of 1989, clarification of lawful and unlawful business practices in the United States
TILA-RESPA - Truth in Lending Act-Real Estate Settlement Procedures Act, clarification of lawful and unlawful business practices in the United States, latest rules have been issued for comment, revised and scheduled to take effect in 2015
FRAP - Federal Rules of Appellate Procedure, latest revision
This case is appealed from Texas Western District Court.
STATEMENT OF ISSUES
1. Right to jury trial
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. - Heritage Guide to the Constitution
Toward the end of the Constitutional Convention, Hugh Williamson of North Carolina noted that "no provision was yet made for juries in civil cases and suggested the necessity of it." Elbridge Gerry agreed, while George Mason further argued that the omission demonstrated that the Constitution needed a Bill of Rights. Nathaniel Gorham responded that the question should be left to Congress because of complexities in determining what kind of civil cases should be given to a jury. A few days later, when Gerry and Pinckney moved to insert "And a trial by jury shall be preserved as usual in civil cases," Gorham argued that there was no usual form, because the structure of civil juries varied among the states. Apparently sensing the difficulty in phrasing the guarantee, the Convention unanimously defeated the motion.
It was a costly oversight, for the omission of a guarantee of civil juries occasioned the greatest opposition to the Constitution in the ratifying conventions, as Alexander Hamilton candidly admitted in The Federalist No. 83. Hamilton tried to minimize the differences by arguing that the only difference between the supporters and detractors of the Constitution on this issue was that "the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." Mason and Gerry had themselves refused to sign the Constitution, citing the absence of the guarantee among their other concerns. In the ratification debates, the Anti-Federalists argued that the provision in the Constitution for juries in criminal cases necessarily implied their abolition in civil cases. The Anti-Federalists tied this argument to their objections to the power of the Supreme Court in Article III to hear appeals "both as to law and fact," suggesting that the Constitution would effectively abolish juries in the states as well.
In response, the Federalists continued to argue that defining in the Constitution the appropriate cases for civil juries was too difficult a task and that the Congress could be trusted to make provision for civil juries. This was a weak argument, as twelve of the states themselves protected civil juries in their constitutions. Of the six ratifying conventions that proposed amendments to the Constitution, five included a right to a jury in civil cases.
The history of the revolutionary struggle also counted against the Federalists. The colonists had had no objection to trials without juries in traditional admiralty and maritime cases. But when Parliament extended the jurisdiction of the admiralty courts to other cases, the colonists' opposition to England crystallized around the deprivation of their right to trial by jury. In the Declaration of the Causes of Taking up Arms (1775), the Second Continental Congress declared: "[S]tatutes have been passed for extending the jurisdiction of courts of Admiralty and Vice-Admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property." The complaint was also among the bill of particulars in the Declaration of Independence.
The Seventh Amendment, passed by the First Congress without debate, cured the omission by declaring that the right to a jury trial shall be preserved in common-law cases, thus leaving the traditional distinction between cases at law and those in equity or admiralty, where there normally was no jury. The implied distinction parallels the explicit division of federal judicial authority in Article III to cases (1) in law, (2) in equity, and (3) in admiralty and maritime jurisdiction. The contemporaneously passed Judiciary Act of 1789 similarly provided that "the trial of issues of fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." As Justice Joseph Story later explained inParsons v. Bedford (1830): "In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights."
The Supreme Court has, however, arrived at a more limited interpretation. It applies the amendment's guarantee to the kinds of cases that "existed under the English common law when the amendment was adopted," Baltimore & Carolina Line v. Redman (1935), or to newly developed rights that can be analogized to what existed at that time, Luria v. United States (1913), Curtis v. Loether (1974). Accordingly, in a series of decisions in the second half of the twentieth century, the Supreme Court ruled that the Seventh Amendment guarantees the right to trial by jury in procedurally novel settings, like declaratory judgment actions, Beacon Theatres v. Westover (1959), and shareholder derivative suits, Ross v. Bernhard(1970). The Court also applied the amendment to cases adjudicating newly created statutory rights, Curtis v. Loether, Pernell v. Southall Realty (1974). In addition, the Supreme Court has ruled unanimously that when factually overlapping "legal" and "equitable" claims are joined together in the same action, the Seventh Amendment requires that the former be adjudicated first (by a jury); and that when legal claims triable to a jury are erroneously dismissed, relitigation of the entire action is "essential to vindicating [the plaintiff's] Seventh Amendment rights." Lytle v. Household Manufacturing, Inc. (1990).
The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly "suits at common law," particularly when "public" or governmental rights are at issue and if one cannot find eighteenth-century precedent for jury participation in those cases. Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977). Thus, Congress can lodge personal and property claims against the United States in non-Article III courts with no jury component. In addition, where practice as it existed in 1791 "provides no clear answer," the rule is that "[o]nly those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature." Markman v. Westview Instruments (1996). In those situations, too, the Seventh Amendment does not restrain congressional choice.
In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither "implicit in the concept of ordered liberty," Palko v. State of Connecticut (1937), nor "fundamental to the American scheme of justice," Duncan v. Louisiana (1968). Accordingly, in company with only the Second Amendment and the Grand Jury Clause of the Fifth Amendment, the Seventh Amendment is not "incorporated" against the states; it applies only in the federal courts. In the federal courts, the parties can waive the right, but there is no longer a requirement, as there was in 1791, that civil juries be composed of twelve persons and must reach a unanimous verdict. Colgrove v. Battin (1973).
Certified Specialist in Appellate Law
Hicks Thomas LLP
Further Reading - Jury Trial
- George E. Butler II, Compensable Liberty: A Historical and Political Model of the Seventh Amendment Public Law Jury, 1 Notre Dame J.L. Ethics & Pub. Pol'y 595 (1985)
- Eric Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U. L. Rev. 144 (1996)
- Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. Rich. L. Rev. 407 (1999)
- 1 John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights(1986)
- Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973)
- Duncan v. Louisiana, 391 U.S. 145 (1968)
- Palko v. State of Connecticut, 302 U.S. 319 (1937)
- Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)
- Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830)
- Kohl v. United States, 91 U.S. 367 (1876)
- Luria v. United States, 231 U.S. 9 (1913)
- Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935)
- Beacon Theatres v. Westover, 359 U.S. 500 (1959)
- Ross v. Bernhard, 396 U.S. 531 (1970)
- Colgrove v. Battin, 413 U.S. 149 (1973)
- Curtis v. Loether, 415 U.S. 189 (1974)
- Pernell v. Southall Realty, 416 U.S. 363 (1974)
- Atlas Roofing Co. v. Occupational Safety & Health Review Commission, 430 U.S. 442 (1977)
- Tull v. United States, 481 U.S. 412 (1987)
- Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)
- Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990)
- Markman v. Westview Instruments, 517 U.S. 370 (1996)
Rule 38. Right to a Jury Trial; Demand
(a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate.
(b) DEMAND. On any issue triable of right by a jury, a party may demand a jury trial by:
(1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d).
(c) SPECIFYING ISSUES. In its demand, a party may specify the is- sues that it wishes to have tried by a jury; otherwise, it is consid- ered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the de- mand or within a shorter time ordered by the court—serve a de- mand for a jury trial on any other or all factual issues triable by
(d) WAIVER; WITHDRAWAL. A party waives a jury trial unless its
demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
(e) ADMIRALTY AND MARITIME CLAIMS. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).
-Great as this eulogium may seem, it is no more than the admirable constitution, when traced to its principles, will be found is sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely trusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should always be attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts. It is wisely therefore ordered, that the principles and axioms of law, flowing from abstracted reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. For here partiality can have little scope: the law is well known, and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or more artfully oppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed until the hour of trial; and that when once that fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step towards establishing aristocracy, the most oppressive of absolute governments.
-Blackstone’s Commentaries on the Laws of England, Book 3, Chapter 23
STATEMENT OF CLAIM
# Description Amount
1 Costs of Defense, Professional Services 100
2 Costs of Defense, Court Filings IP
3 Costs of Defense, Incidental n/c
4 Foreclosure Sale in Error 1,000,000
5 Affidavit of Indebtedness Preparation 1,000,000
6 Proof of Claim 1,000,000
7 Motion for Relief from Stay Affidavits 1,000,000
8 Preforeclosure Initiation 1,000,000
9 Fee adherence to guidance 1,000,000
10 Adherence to customer payment processing 1,000,000
11 Reconciliation of certain waived fees 1,000,000
12 Third party vendor management 1,000,000
13 Customer portal (multiple) 5,000,000
14 Single point of contact (multiple) 5,000,000
15 Workforce management 1,000,000
16 Affidavit of indebtedness Integrity 1,000,000
17 Account status activity (multiple) 5,000,000
18 Complaint response timeliness (multiple) 5,000,000
19 Dual track referral to foreclosure 1,000,000
20 Dual track failure to postpone foreclosure 1,000,000
21 Disgorgement of unlawful gains 50,000,000
STATUTES AND REGULATIONS
Financial Institution Recovery, Reform and Enforcement Act of 1989 (FIRREA)
Dodd-Frank Financial Reform Act of 2012
Real Estate Settlement Procedures Act of 2014 (RESPA)
Joseph A. Smith Mortgage Settlement Oversight Reports
STATEMENT OF THE CASE
- The defendant BDFTE, as agent for PHH acted to foreclose and sell plaintiff’s homestead at public auction. Reference Appendix 1.
- The plaintiff filed an unsuccessful motion in Burnet County to stop sale. Reference Appendix 1.
- As time went by, plaintiff filed bankruptcy, #13-10386 to protect assets while bankruptcy plan was implemented in satisfaction of creditors. Reference Appendix 1.
- BDFTE, a defendant, filed proof of claim with trustee and was paid in full. PHH executed release of lien on mortgage and filed in Burnet County. Reference Appendix 1.
- Plaintiff resumed attempts to collect debt from PHH for damages incurred in defense of wrongful foreclosure action, predatory insurance practice of PHH, and lost escrow funds. Reference Appendix 1.
- Defendants removed trial from Burnet County to Texas Western District Court, as claim appeared in excess of $75,000. Plaintiff concurred. Reference Appendix 1.
- Plaintiff concurred, and filed amended complaint to recover damages for himself and a potential class of like parties. Reference Appendix 1.
- Plaintiff filed motion under Rule 38 in demand of jury trial. Jury trial was docketed. Reference Trial Transcript Document 23 - Jury Demand
- Prior to trial, the case was judged and dismissed. Reference Appendix 1.
- In view of the complexity of issues, the apparent large class of affected parties in similar current or past circumstance, and the continuing financial crisis of far-reaching negative social impact in the United States, I pray this panel to remand this case to Western Texas District court for proper trial before jury of all facts and issues. Reference Appendix 1.
- I pray also for directed assignment of a US Attorney or Attorneys from the Mortgage Fraud Task Force Working Group, or the FBI White Collar Crime Task Force, to assist our lead counsel in the prosecution of this case, and the judge in proper case management, as information liaison to facilitate investigation and discovery under Rule 26 prior to trial. Reference Appendix 1.
- I pray for production to that attorney, or the Mortgage Fraud Task Force Working Group, of electronically stored information and complete audit of all payment records and circumstances of foreclosures currently in process by PHH in 46 states. I recommend Joseph A. Smith of mortgagesettlementoversight.com as most appropriate analyst and expert witness, based on his current experience as designated monitor for all consent judgments currently under enforcement action by US Department of Justice. Reference Appendix 1.
- I pray for meaningful and cautionary sanctions to be assessed versus PHH and BDFTE for gratuitous obstruction of legal process by their obfuscation, dithering and delay up to this point.
- I pray for restraining order to stay all non-judicial foreclosures currently in process, about 8-10, 000 across America, by PHH and their regional agents until jury trial in Western Texas of all issues is complete.
For Truth, Justice, and America,
THISDATE 2014 /s/ David McCrae
By: DAVID MCCRAE, Pro Se* **
350 Cee Run / Bertram Texas 78605
512.557.0283 / email@example.com
* Note: Per FRAP Rule 3 (c)(2) David McCrae also represents claim of spouse, Barbara McCrae
** Note: per FRAP Rule 3 (d)(1) David and Barbara McCrae are Class Members #1 of a future class that is not currently certified
This case was judged and dismissed without trial.
CERTIFICATE OF SERVICE
I have served this Appeal Brief to:
By US Mail, e-mail, CM/ECF
Sworn to on 1 December 2014 by /s/David McCrae, Pro se
350 Cee Run / Bertram Texas 78605