FOR WESTERN DISTRICT OF TEXAS
UNITED STATES COURTHOUSE
501 WEST FIFTH STREET AUSTIN, TEXAS 78701
DAVID MCCRAE, qui tam ⎬
CONSUMER FINANCIAL PROTECTION BUREAU ⎬
PHH MORTGAGE CORPORATION (dba BURNET ⎬
MORTGAGE SERVICES; ⎬
CENTURY 21 MORTGAGE; COLDWELL BANKER ⎬ CIVIL ACTION NO.
MORTGAGE; DOMAIN DISTINCTIVE PROPERTY ⎬ 1:14-733-LY
FINANCE; ERA MORTGAGE; INSTAMORTGAGE.COM ⎬
MORTGAGE SERVICE CENTER; ⎬
MORTGAGEQUESTIONS.COM; MORTGAGESAVE.COM ⎬
PHH MORTGAGE SERVICES) ⎬
And BARRETT DAFFIN ⎬
FRAPPIER TURNER AND ENGEL, LLP, ⎬
§§§ JURY TRIAL DEMANDED §§§
PLAINTIFF’S MOTION IN OPPOSITION OF DOCUMENT 34
Document 34 encompasses Defendant PHH Motion to Strike Plaintiff’s Second Amended Complaint.
I did not ask for leave to file the second amended complaint. I apologize the the oversight. I was somewhat surprised by the magistrate’s Report and Recommendations, especially since the issues have hardly been clarified, no exhibits have been submitted, no Rule 26(f) conference has been held, no discovery has proceeded, and the issues are still quite murky.
Nevertheless, the Magistrate’s Report raised worthwhile issues that deserve to be minimally addressed before dismissal.
For the simple issues I’ve recognized and incorporated-
- At the pleasure of the court, Plaintiff Dave McCrae will no longer represent Plaintiff Barbara McCrae, who is uninterested;
- Plaintiff Dave McCrae will no longer prepare to represent a class of such individuals, as I have been unsuccessful in locating counsel through this date. Should counsel present themselves in the near future, we will at that point request leave to file, ask for certification of class, and file a Third Amended Complaint. Plaintiff will only represent himself today, pro se. Plaintiff continues to seek qualified and interested counsel.
- Under FIRREA, Plaintiff is required to act qui tam in this suit representing the CFPB, representing the DOJ, representing Eric Holder, who is indisposed. Plaintiff will yield to US Attorney whenever asked.
- Plaintiff will no longer refer to ‘wrongful foreclosure,’ since foreclosure was never completed and plaintiff continues to reside in homestead, with clean and clear title;
- Plaintiff will now refer to ‘consumer fraud,’ or the act of stealing money by moving it from my bank to yours, by whatever various and devious means have been employed from the time when men cut tally sticks in the marketplace;
- The Statement of Facts remain the same. There are no new facts. Possibly they are only threadbare assertions. That is all we require at this point. These reflect business records in possession of the plaintiff, and in possession of the defendants. A considerable amount of evidence will be exhibited before the jury, and a considerable amount of evidence is in possession only of defendants, and is yet to be discovered, organized and presented for trial.
- The paragraphs are now renumbered uniquely and sequentially, I think.
- We have all explored the theory of judicial estoppel, and it has been quite clarifying. I’m happy to explore this issue at greater length, in our rule 26(f) meeting, and before the jury. Naturally, I disagree.
- There is no need for defendants to respond to Second Amended Complaint. There is nothing new. It is a simplified complaint that I hope would adress the expressed concerns of the magistrate, who has completed a commendable review.
- The issues are complex, and are already docketed for jury trial. A judgment prior to trial is neither requested or expected.
The mortgage servicing industry has been a generally recognized sewer of the economy, and has been the focus of the Department of Justice for many years. The DOJ has expended >500M in prosecutorial effort over the last few years, with significant current expenditures still under way, and recovered >80B in penalties and restitution from economic giants such as Chase/JPM, BOA, Citi, Wells Fargo, Ocwen, GreenTree, Ally, and most recently this week Flagstar. These companies comprise a healthy slice of the industry in which defendants currently play a very minor role. This is publicly available information in any newspaper.
Most of the consent judgments registered so far use a system of oversight developed by Joseph A Smith (who does not do litigation) to verify compliance with existing law through 29 easily observable metrics. We’re (the USA) now accumulating a lot of quarterly reports, on a large amount of business in America. I’ve stated my 15 claims in compliance with those metrics, and this is how I will display these complex issues to the jury. The facts are no different. I will present more than threadbare assertions. Each violation of the 29 entails a 1M/5M recommended penalty, though the jury is naturally free to use whatever guidance they feel is best.
In short, my Second Amended Complaint is only a clarification of my first, incorporating the expressed concerns of the Magistrate’s Report. There are no new facts. We have not had any meetings between the parties, have made no disclosures or discoveries. If this complaint is convenient, I offer it freely. If inconvenient, let’s proceed using the first one. Yes, I have a lot of material to collect and present to the jury in an understandable format. Yes, the defendants need to present their case. Let’s do it.
This statement requires no court order. The Defendants’ response remains clear. They desire to be dismissed.
For Truth, Justice, and America,
Date: 2 October 2014 Signature: /s/ David McCrae, Pro se
350 Cee Run/Bertram, Texas 78605