No.

: 09-6103
----------------------- ------------------------

IN THE
SUPREME COURT OF THE UNITED STATES
----------------------- -----------------------Pierre-Richard Augustin,

Petitioner,

VS.
DEUTSCHE BANK NATIONAL TRUST
AND/OR CHASE HOME FINANCE,
RESPONDENTS.
----------------------- -----------------------On Petition For Writ Of Certiorari To The United
States Court Of Appeals For The First Circuit
----------------------- -----------------------PETITION FOR WRIT OF CERTIORARI
----------------------- -----------------------Pierre-Richard Augustin, MPA, MBA, Petitioner
Private Attorney General, Ex Rel
3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 617-202-8069

i
I. QUESTION PRESENTED FOR REVIEW
1. Did the Bankruptcy court err in suppressing the
Petitioners Truth-In-Lending notice of rescission
of September 21, 2006 that voided the security
interest in Petitioners home according to Reg. Z
226.15(a)(2), 226.23(a)(2), Official Staff
Commentary 226.23(a)(2)-1) and 15 U.S.C.
1635(b) as a defense to foreclosure?
2. Did the Bankruptcy court err in suppressing the
Respondents failure to file a declaratory
judgment action within twenty days after
receiving Petitioners rescission notice, before the
deadline of October 10, 2006 to return
Petitioners money or property and record the
termination of its security interest according to
15 USC 1635(b)?

ii
II. PARTIES TO THE PROCEEDINGS
The caption of the case in this Court contains the
names of all the parties.

iii
TABLE OF CONTENTS

Page

I. QUESTION PRESENTED FOR REVIEW.............i

II. PARTIES TO THE PROCEEDINGS...................ii
III. OPINIONS BELOW ...........................................1
IV. STATEMENT OF JURISDICTION.....................1
V. CONSTITUTIONAL PROVISIONS ................1
VI. STATEMENT OF THE CASE.............................2
VII. STATEMENT OF FACTS .............................3
VIII. REASONS FOR GRANTING PETITION......3
IX. CERTIFICATION OF PUBLIC INTEREST.......5
X. RELIEF SOUGHT.................................................8
XI. ARGUMENT OF QUESTION
PRESENTED #1..............................................9
1. TILA Pleading........................................................9
2. TILA Rescission Notice.......................................10
3. TILA Violations That Triggered Rescission........11

iv
TABLE OF CONTENTS Continued

Page

4. Petitioner Meets The Criteria ........................12

XII. ARGUMENT OF PRESENTED
QUESTION #2...............................................13
1. Creditors Did Not File For Declaratory
Judgment.......................................................13
2. 11 U.S.C. 554(C)................................................14
3. Exempt Property Not Property Of The Estate...15
4. Federal Rules Bankruptcy Procedure 4003(B)...16
5. Petitioner's Property -Not Property Of Estate...17
XIII. CONCLUSION................................................18
1. Relief From The Stay...........................................18
2. Principle Of Res Judicata....................................19
3. Respondents had NO legal standing...................20
4. No Mortgage Equal No Foreclosure....................22
5. No Valid Mortgage Equal No Foreclosure.........22
XIV. REQUESTED RELIEF....................................23

v
TABLE OF CONTENTS Continued
Page
APPENDIX
March 10, 2009 Order of the United States
Court of Appeals for the First Circuit.........App. 1
March 3, 2008 Memorandum and Order of
the U.S. District Court of Massachusetts...App. 3
March 5, 2008 Order of Dismissal of
the U.S. District Court of Massachusetts...App. 9
June 7, 2007 Proceeding Memorandum/Order
of the U.S. Bankruptcy Court of
Massachusetts......................................App. 10

vi
TABLE OF AUTHORITIES
CASES

Page

April v. Union Mortgage Co., 709 F.Supp. 809, 811

(N.D. Ill. 1989)....................................................12
Arnold v. W.D.L. Invs., Inc., 703 F.2d 848, 850 (5th
cir. 1983)..............................................................10
Bizier v. Globe Financial Services, Inc., 654 F.2d 1,
3 (1st Cir. 1981)....................................................19
Brown v. Mortgagestar, 194 F. Supp. 2d 473 (S.D. W.
Va. 2002)................................................................9
Cf. Semar v. Platte Valley Fed. Sav. & Loan Assn,
791 F.2d 699, 704-05 (9th Cir. 1986)..................13
Christy v. Heights Finance Corp., No. 861280, United States District Court for the Central
District Of Illinois, 101 B.R. 542; 1987 U.S. Dist.
Lexis 14996, May 18, 1987, decided, May 18, 1987,
filed)..........................................................................16

Community National Bank & Trust v. McClammy,

525 N.Y.S. 20 2d 629 (App. Div. 1988)...............22
Connor v. Finch, 431 U.S. 407, 421 n.19 (1977).......5
Curry v. Fidelity Consumer Discount Co., 656 F.

vii
TABLE OF AUTHORITIES Continued
Page
CASES
Supp. 1129 (E.D. Pa. 1987)................................12

Davison v. Bank One Home Loan Services, 2003

U.S. Dist. LEXIS 514, 2003 WL 124542, at*3-*4
(D. Kansas January 13, 2003)............................11
FDIC v. Ablin, 532 N.E. 2d 379 (Ill. App. 1988).....22
Grella v. Salem Five Cents Savings Bank, 42
F.3d26, 32 C.B.C. 2d 1303 (1st Cir. 1994)...........18
Hanlin v. Ohio Builders and Remodelers, Inc., 212
F. Supp.2d 752, 759 (S. D. Ohio 2002)...............12
Hill v. GFC Loan Co., 2000 U.S. Dist. Lexis 4345
(N.D. Ill. Feb. 15, 2000)......................................10
In D-1 Enterprises, Inc. v. Commercial State Bank,
864 F.2d 36 (5th Cir. 1989)..................................18
In re Brown, 134 B.R. 134 (Bankr. E.D.Pa.
1991)..19; In re Moore, 117 B.R. 135 (Bankr.E.D.
Pa. 1990).............................................................19
In re Gagnard, 17 B.R. 811, 813 (Bankr.W.D. La.
1982)....................................................................18

viii
TABLE OF AUTHORITIES Continued
Page

CASES
In re Kaelin, 308 F. 3d 885 (8th Cir. 2002).............16
In re Magallanes, 96 B.R. 253, 256 (9th Cir. BAP
1988)....................................................................20
In re Norman, 157 B.R. 460 (C.D. Cal. 1993).........17
In re Olson, 253 B.R. 73 (B.A.P. 9th Cir. 2000)......16
In re Perkins, 106 B.R. 863, 874 (Bankr. E.D.Pa.
1989)....................................................................19
In re Porter v. 19Mid-Penn Consumer Discount Co.,
961 F.2d 1066, 1078 (3d. Cir. 1992)...................12
In re Wright, supra. At 708.....................................12
Inge v. Rock Fin. Corp., 281 F.3d 613 (6th cir.
2002).........................................................................10
Jenkins v. Landmark Mortgage, 696 F.Supp. 1089
(W.D. Va. 1988)...................................................12
Randall v. Bank One (In re Randall), 358 B.R. 145,
158 (Bankr. E.D. Pa. 2006)...................................5

ix
TABLE OF AUTHORITIES Continued
Page

CASES
Robertson v. Strickland (In re Robertson), 333 B.R.
894, 898, 904 n. 14 (Bankr. M.D. Fla. 2005).....13
Sherk v. Texas Bankers Life & Loan Ins. Co. (In re
Sherk), 918 F.2d 1170, 1174 (5th Cir. 1990)......18
Silber v. United States, 370 U.S. 717, 718 (1962)....5
Smith v. Fidelity Consumer Discount Co., supra. At
898.......................................................................12
Smith v. No. 2 Galesburg Crown Furnace Corp., 615
F.2d 407, 416 (7th Cir. 1980)..............................12
Staley v. Americorp. Credit Corp., 164 F. Supp. 2d
578 (D. Md. 2001).................................................9
Stone v. Mehlberg, 728 F. Supp. 1341, 1347
(W.D.Mich. 1990)................................................12
Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S. Ct.
1644, 118 L. Ed. 2D 280 (1992)..........................15
Taylor v. Freeland & Kronz, 503 U.S. 638, 112 Sup.
Ct. 1644 (1992)....................................................17

x
TABLE OF AUTHORITIES Continued
Page

CASES
United States v. Atkinson, 297 U.S. 157, 160
(1936).....................................................................5
Willis v. Friedman, Clearinghouse No. 54,564 (Md.
Ct. Spec. App. May 2, 2002)...............................11
Yslas v. D.K. Guenther Builders, Inc., 342 So. 2d
859 (Fla. Dist. Ct. App. 1977)..................................22
CASES STATUTORY MATERIALS
The Truth In Lending Act - 15 U.S.C. 1601 thru
1615 Part A-General Provisions
15 U.S.C. 1631 thru 1649 Part B-Credit
Transactions
15 U.S.C. 1661 thru 1665b Part C-Credit
Advertising
Regulation Z - 12 C.F.R. 226.1 thru 226.36
The Fed. Reserve Board Official Staff Commentary
on Regulation Z
Federal Rules of Bankruptcy & Civil Procedures

1
III. OPINIONS BELOW
The opinion of the Courts below are provided in the
appendix section.
IV. STATEMENT OF JURISDICTION
The District Court had jurisdiction under 28 U.S.C.
1331. The Court of Appeals issued its judgment on
April 7, 2009. This Court has jurisdiction under 28
U.S.C. 1254(1). All federal courts, including the
Supreme Court are empowered by 28 USC 1651(a)
to issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the
usages and principles of law.
V. CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Art. III, section 2:

The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or
which shall be made, under their Authority; to all
Cases affecting Ambassadors, other public
Ministers and Consuls; to all Cases of admiralty
and maritime Jurisdiction; to Controversies to
which the United States shall be a Party; to
Controversies between two or more States; between
a State and Citizens of another State; between
Citizens of different States; between Citizens of the
same State claiming Lands under Grants of
different States, and between a State, or the

2
Citizens thereof, and foreign States, Citizens or
Subjects. In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the
Congress shall make.

U.S. Const. Amendments XIV, section 1:

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
VI. STATEMENT OF THE CASE
On January 30, 2007, Petitioner filed an Emergency
Motion
for
Restraining
Order
Forbidden
Foreclosure and an Emergency Motion to Revise
and Revoke order dated December 27, 2005, docket
# 38 at the U.S. Bankruptcy Court of
Massachusetts. An evidentiary hearing on those
motions was heard on February 1, 2007 and it was
denied by the bankruptcy court. Then, Petitioner
filed a notice of appeal to preserve his rights and

3
property interest and subsequently, his home was
sold illegally through foreclosure on May 25, 2007
while the matter was actively being contested.
VII. STATEMENT OF FACTS
Deutsch Bank National Trust and/or Chase Home
Finance
or
Respondents
(hereinafter
Respondents).
Petitioner bought his home in January 1999. On
March 18, 2002, he conveyed the property to his
business, 26-28-30 Cedar Street, Inc., subject to two
mortgages. On May 17, 2002, Petitioner obtained a
loan with DanversBank for the amount of $55,000
on behalf of AdMerk Corp. Inc., secured by his
principal dwelling. The DanversBank mortgage
note was assigned to Commonwealth Land Title
Insurance Company.
On March 27, 2003, Petitioner obtained an
Ameriquest Mortgage in the amount of $244,000,
portions of which were used to pay the original two
mortgages. On April 15, 2004, Petitioner
consolidated debts and refinanced his mortgage
with New Century Mortgage for $280,000. Also, the
New Century mortgage note was assigned to Chase
Home Finance. Then Chase assigned it to Deutsch
Bank National Trust.
Having found that a foreclosure notice was served
at his property in Lowell, Massachusetts, on
January 30, 2007, Petitioner filed two Emergency

4
motions; 1) Motion to revise and revoke relief of
stay and Motion to forbidden foreclosure based on
Federal Rule of Civil Procedure Rule 60 (b)(2)(3)(4)
which is equivalent to Rule 9024.
At the U.S. Bankruptcy Court of Massachusetts, on
February 1, 2007, Petitioner clearly stated that his
invokation of TILA had precedence, negated the
foreclosure actions and voided the security interest
in his property (Transcript of 2/1/07, 3:2-10). As a
matter of fact, the Respondents wrongly stated that
1635 only provided the right to rescind for three
days ((Transcript of 2/1/07, 5:21-25; 6:1-2; 12-18).
Also, three Qualified Written Request Letter were
sent to Respondents were not answered timely
regarding the voiding of the security interest in
Petitioners home.
Consequently, Respondents
foreclosure action was not warranted and resulted
in the deprivation of his property rights and
fundamental right.
VIII. REASONS FOR GRANTING THE PETITION
The Petitioner, Pierre-Richard Augustin,
respectfully prays the U.S. Supreme Court for an
order (1) vacating the final judgment of the United
States Court of Appeals for the First Circuit and (2)
granting a writ of certiorari based on the 'plain
error exception doctrine'.
The plain errors exception' as described in this
petition seriously affect the [F]airness, [I]ntegrity
and/or [P]ublic [R]eputation of this public

5
proceedings (United States v. Atkinson, 297 U.S.
157, 160 (1936), Silber v. United States, 370 U.S.
717, 718 (1962) and Connor v. Finch, 431 U.S. 407,
421 n.19 (1977) since the rescission notice from
Petitioner concluded by instructing Respondents
that "[p]ursuant to Regulation Z, it had twenty days
after receipt of the Notice of Rescission to return all
monies paid and to take action necessary and
appropriate to terminate the security interest."
The requirement that Respondents and other
creditors return Petitioner's money and take action
to terminate their security interest in his property
within twenty days of receiving a rightful notice of
rescission is, again, the same under both federal
and Massachusetts law. See 15 U.S.C. 1635(b);
Mass. Gen. Laws ch. 140D, 10(b) & (f) and see
Randall v. Bank One (In re Randall), 358 B.R. 145,
158 (Bankr. E.D. Pa. 2006) (creditor's failure to
accept rescission notice nullified the mortgage
barring respondents from foreclosure).
IX. CERTIFICATION OF PUBLIC INTEREST
A petition of writ of certiorari seeks an
extraordinary remedy. Petitioner brings this action
as a Supplemental Private Attorney General under
42 U.S.C. 1988 against Deutsche Bank National
Trust and/or Chase Home Finance(Respondents)
and on behalf of the United States Government
and/or the Federal Department of Justice (Ex Rel)
to enforce the rights of himself and members of the
public such as Barbara who emailed Petitioner the

6
following comments:
"In your suit your actions are that of a truly
great American who still believes there is
justice. My older son was a lifetime law
enforcement officer and in the military. My
younger son was a firefighter/paramedic his
entire career. They both fervently believed in
standing up for those who cannot defend or
protect themselves. Were they here, they
would be honored to know you. I am hopeful
for the first time in almost two years. Sincerely, Barbara
Your Honors, the ongoing foreclosure crisis has
resulted in the largest currency devaluation in
modern U.S. history and has affected every
American and every foreign person, government,
agency, village or city that put money into pooled
funds of the collateralized debt obligations CDOs.
A brief scan of the news headlines will reveal that
local governments are cutting back on services,
record numbers of unemployment, and that both
corporate and government pensions are at risk.
A record 1.53 million properties were in the
foreclosure process -- default notices, auction
sale notices and bank repossessions -- during
the first six months of 2009. That was 9%
more than the previous six months and 15%
more than the same period of 2008, according

7
to a report released by RealtyTrac. There
were a total of 1.91 million filings resulting
in 1 out of every 84 U.S. properties receiving
at least one filing in the first half of the year.
Banks repossessed 386,800 properties
according to RealtyTrac."
However, in the United States, no one is considered
to be above the law. Petitioner strongly believes in
the transparency of the Supreme Court of the
United States of America to uphold the law to
[administer justice without respect to persons, do
equal right to the poor and to the rich, to faithfully
and impartially discharge and perform all duties
under the Constitution and laws of the United
States]. Thus, the issuance of this writ of certiorari
by the Supreme Court is not only warranted and
paramount, but [A]bsolutely [N]ecessary.
This request for issuance of a writ of certiorari is to
procure the enforcement of a public duty or to
prohibit the invalidation of Regulation Z or the
Truth-In-Lending (TILA) right of rescission. In an
Order issue on April 7, 2009, the Court of Appeals
denied the Petition for rehearing or hearing en banc
pursuant to Fed. R. App. P. 35 and 40. The Order of
the Bankruptcy Court of Massachusetts below
directly contravenes the plain language of
Regulation Z. That decision undermines the basic
principles of fairness and is flat out inconsistent
with the public interest that no one should be
deprived of his property rights, violations of due

8
process and wrongful foreclosure imposed on
Petitioner and similar situated people. Therefore,
Petitioner is requesting the issuance of the writ of
certiorari because he has a clear, present and
substantial right to avoid a public wrong and to
preserve his fundamental right not to be deprived of
his property rights according to TILA.
X. RELIEF SOUGHT
Because of the consequences for other litigants in
similar situations, Petitioner hereby petitions the
Supreme Court of the United States to issue a writ
of certiorari in accordance with the Federal Rules of
Evidence because Respondents never produced the
original note, proved in writing that they had
standing to foreclose and totally ignored Petitioners
TILA right of rescission. In accordance to 28 USC
1561, Petitioner is seeking the reversal of the
original Order from the Bankruptcy Court on the
irrefutable fact that Appelee was not the real party
of interest and usurped their authority in ignoring
the Federal and Massachusetts law on TILA right
of rescission that negated the foreclosure action.
Specifically, Petitioner respectfully requests a writ
of certiorari to vacate that Order that invalidate
Regulation Z and to instead issue an Order voiding
the Bankruptcy Court Order since the security
interest in Petitioners property was voided as a
result of invoking the TILA right of rescission. If
the previous Orders are not reversed, Petitioner
will be denied of his fundamental rights, deprived of

9
his property rights on a wrongful and illegal
foreclosure, be denial of due process and
Respondents committed fraud on the Courts below.
Petitioner believes that he should not only gain
access to the court system, but once in the court
that the rule of law must be balanced and applied
equally and transparently or do equal justice to
members of the public who are self-represented.
Petitioner requests for a writ of certiorari for the
following exceptional circumstances: given that
Petitioner had invoked his TILA right of rescission
and there was no response from Respondents until
after the 20-day period had expired, thus, the
security interest in Petitioners property was
already voided and the resulted foreclosure on
Petitioners primary residence violated the
Massachusetts Constitutional protection against
forced sale of ones property by a party who lacks a
legal interest thereon. The Supreme Court should
undertake review of this case to resolve the conflicts
and to clearly establish (re-establish) the law on
these points in accordance to regulation Z.
XI. ARGUMENT OF QUESTION PRESENTED # 1
1. TILA Pleading
Specific TILA violations do not necessarily have to
be
alleged
with
particularity
(Brown
v.
Mortgagestar, 194 F. Supp. 2d 473 (S.D. W. Va.
2002), Staley v. Americorp. Credit Corp., 164 F.
Supp. 2d 578 (D. Md. 2001) (Petitioner need not

10
specify specific statute or regulations that entitled
him to relief; court must examine the case for relief
on any possible legal theory); Hill v. GFC Loan Co.,
2000 U.S. Dist. Lexis 4345 (N.D. Ill. Feb. 15, 2000).
Petitioner need not plead an error exceeded the
applicable tolerance, since he made an affirmative
defense (15USC 1635(i)), (Inge v. Rock Fin. Corp.,
281 F.3d 613 (6th cir. 2002)).
2. TILA Rescission Notice
Petitioner filed a copy of the notice of rescission
letter (12 C.F.R. 226.23(a)(2)(Reg. Z 226.15(a)
(2), 226.23(a)(2), Official Staff Commentary
226.23(a)(2)-1) and 15 U.S.C. 1635(b)) in the
bankruptcy
court
notifying
the
attorneys
representing Respondents and creditors as well as
having certified receipt return of proof of delivery to
the Lawyers as proof of notification according to the
Official
Staff
Commentary,
226.2(a)(22)-2,
authorizing service on attorneys. But, the time
frame for any of the respondents and creditors to
object or to challenge the TILA notice of rescission
had expired on October 10, 2006 according to TILA
strict liability rule.
As the bare bones nature of the FRB model notice
demonstrates, it is not necessary to explain why the
consumer is canceling. The FRB Model Notice
simply says: I WISH TO CANCEL, followed by a
signature and date line (Arnold v. W.D.L. Invs., Inc.,
703 F.2d 848, 850 (5th cir. 1983) (clear intention of

11
TILA and Reg. Z is to make sure that the
respondents gets notice of Petitioners intention to
rescind)). Thus, the security interest or lien arising
by operation of law on Petitioners property becomes
automatically void (15 U.S.C. 1635(b); Reg. Z
226.15(d)(1), 226.23(d)(1) (See also 69 Fed. Reg.
16769, 16771-72 (reiterating that security interest
becomes void when consumer rescinds), even if a
court has not yet ruled on the validity of the
Petitioners rescission (Willis v. Friedman,
Clearinghouse No. 54,564 (Md. Ct. Spec. App. May
2, 2002)).
3. TILA Violations That Triggered Rescission
Petitioner and his wife should had received two
copies of the notice of rescission ( a total of four
copies for a couple)(12 C.F.R. 226.23(b)(1),
226.17(a). Respondents are required to deliver two
copies of the notice of the right to rescind to the
Petitioner and two copies as well to his wife at the
time of the closing.
Petitioner and his wife only received one copy of the
notice rather than the two copies per person that
the regulations require by 12 C.F.R. 226.23(b).
(See Davison v. Bank One Home Loan Services,
2003 U.S. Dist. LEXIS 514, 2003 WL 124542, at*3*4 (D. Kansas January 13, 2003) (concluding that
under TILA both husband and wife must each be
given two copies of the notice of the right to
rescind); Hanlin v. Ohio Builders and Remodelers,

12
Inc., 212 F. Supp.2d 752, 759 (S. D. Ohio 2002) (a
lender is required to deliver two copies of the notice
of right to rescind); Stone v. Mehlberg, 728 F. Supp.
1341, 1347 (W.D.Mich. 1990) (noting that TILA was
violated because husband and wife should have
each been provided with two copies of the notice of
the right to rescind).
As mentioned above, if material TILA disclosures
are not properly given, including notice of the
proper number of the right of rescission, the
rescission is extended to three years after
consummation of the transaction, 1602(u),1635(a)
and (f), Regulation Z, 226.23(a)(3); Jenkins v.
Landmark Mortgage, 696 F.Supp. 1089 (W.D. Va.
1988); Curry v. Fidelity Consumer Discount Co., 656
F.Supp. 1129 (E.D. Pa. 1987).
4. Petitioner Meets The Criteria
"[O]nce the court finds a violation, no matter how
technical, it has no discretion with respect to
liability." In re Wright, supra. at 708; In re Porter
v. 19Mid-Penn Consumer Discount Co., 961 F.2d
1066, 1078 (3d. Cir. 1992); Smith v. Fidelity
Consumer Discount Co., supra. at 898. A strict
interpretation furthers the congressional goal of
standardizing terminology and procedures in credit
transactions," April v. Union Mortgage Co., 709
F.Supp. 809, 811 (N.D. Ill. 1989); Smith v. No. 2
Galesburg Crown Furnace Corp., 615 F.2d 407, 416
(7th Cir. 1980). Thus, Petitioners claims as

13
aforesaid are meritorious, has raised serious
questions and established probable cause that
the foreclosure should not have been allowed
according to TILA.
XII. ARGUMENT OF PRESENTED QUESTION #2
1. Creditors Did Not File For Declaratory Judgment
The statute and Regulation Z states that if
Respondents and creditors disputed the Petitioners
right to rescind, they should had filed a declaratory
judgment action within the twenty days after
receiving the rescission notice, before its deadline to
return the Petitioners money or property and
record the termination of its security interest (15
USC 1625(b) (see also Robertson v. Strickland (In re
Robertson), 333 B.R. 894, 898, 904 n. 14 (Bankr.
M.D. Fla. 2005). Also, as a matter of contract law,
the original loan has no longer been paid off early
once the refinance loan is rescinded, so no
prepayment penalty is owed by Petitioner (Official
Staff Commentary 226.23(d)(2)-1)).
The statute and Regulation Z make it clear that, if
Petitioner has the extended right and chose to
exercise it, the security interest and obligation to
pay charges are automatically voided. (Cf. Semar v.
Platte Valley Fed. Sav. & Loan Assn , 791 F.2d 699,
704-05 (9th Cir. 1986) (courts do not have equitable
discretion to alter substantive provisions of TILA,
so cases on equitable modification are irrelevant).
The statute, section 1635(b) states: When an

14
obligor exercises his right to cancel, any security
interest given by the obligor becomes void upon
such rescission. Also, it is clear from the statutory
language that the courts modification authority
extends only to the procedures specified by section
1625(b)(12 C.F.R. 226.23(d)(2)).
2. 11 U.S.C. 554(C)
A Trustee should abandon any estate property that
is burdensome or of inconsequential value to the
estate. Property should be abandoned when the
total amount to be realized would not result in a
meaningful distribution to creditors. Also,
scheduled property that is not administered before
the case is closed is deemed abandoned upon entry
of the order closing the estate. 554(c).
Any scheduled property that the Trustee does not
administer is deemed abandoned upon the closing
of the case. Under 11 U.S.C. 554(c), property that
has been "scheduled," under 11 U.S.C. 521(1), is
deemed to have been abandoned by the Trustee at
the close of the bankruptcy case unless it has been
"administered".
Also, the usual ground for
abandonment is that the property is of no value to
the estate. Because Petitioner 's property was
scheduled as exempt, on April 17, 2006, the Trustee
filed a Trustees Report of No Distribution that
states: has received no property nor paid any
money on account of the estate except exempt
property, and diligent inquiry having been made,

15
Trustee states that there is no nonexempt property
available for distribution to creditors.
3. Exempt Property Not Property Of The Estate
Exempt property is property that the Petitioner
may retain in a liquidation case. In all cases,
unless some party successfully objects, the
Petitioner must retain his property claimed as
exempt (11 U.S.C. 522 (l); Taylor v. Freeland &
Kronz, 503 U.S. 638, 112 S. Ct. 1644, 118 L. Ed. 2d
280 (1992)). Under the Bankruptcy Act, the Trustee
does not take title to the Petitioner's property
retains as exempt property and it is no longer part
of the estate. Thus, 1) 30-days after the Petitioners
341 meeting and 2) granting of his civil suit
exemption since Petitioners property and legal
claim were exempt property and not administered
by the Trustee since it was exempt in the first place,
they reverted to the Petitioner. Petitioner rights to
his exempt property which was not administered
property by the Trustee are treated as if no
bankruptcy petition was filed.
Pursuant to FRB 5009, Trustee certified that the
estate was fully administered and requested that
the report be approved and the Trustee discharged
from any further duties. (Entered: 04/17/2006, Case
#: 05-46957). Once the Trustee has filed a final
report certifying that the estate has been fully
administered, if no objection is filed within thirty
days, there is a presumption that full

16
administration has taken place regardless of
whether the case is closed (Fed. R. Bankr. P 5009).
Once the presumption is in place, all property
scheduled and property with no value to the estate
which has not been administered are deemed
abandoned (11 U.S.C. 554(c)(see Christy v.
Heights Finance Corp., No. 86-1280, United States
District Court for the Central District Of
Illinois, 101 B.R. 542; 1987 U.S. Dist. Lexis
14996, May 18, 1987, decided, May 18, 1987, filed)).
4. Federal Rules Bankruptcy Procedure 4003(B)
According to the Supreme Court,
"Section 522(l) says that '[u]nless a party in
interest objects, the property claimed as
exempt on such list is exempt.' Rule 4003(b)
gives Respondents and creditors 30 days from
the initial creditors' meeting to object. By
negative implication, the Rule indicates that
creditors may not object after 30 days 'unless,
within such period, further time is granted
by the court.
The Bankruptcy Court did not extend the 30-day
period. Section 522(l) therefore has made the
property exempt. (Fed. R. Bankr. P. 1009; In re
Olson, 253 B.R. 73 (B.A.P. 9th Cir. 2000); see also In
re Kaelin, 308 F. 3d 885 (8th Cir. 2002) (Debtor who
promptly amended to exempt cause of action after
he first learned about it was permitted to claim

17
exemption). That case is on point and similar to
Petitioner situation.
5. Petitioner's Property Is Not Property Of Estate
The Bankruptcy Code defines "property" very
broadly as all legal and equitable interests of the
Petitioner and any property that is community
property of the Petitioner and his spouse. 11 U.S.C.
541. Even the property that the Petitioner selects
as exempt property is "property of the estate" until
the exemption claims are final (generally 30 days
after the 341 meeting held on November 3, 2005).
Federal Rule of Bankruptcy Procedure provides
that if the creditors, Respondents or the Trustee did
not object to the Petitioner's claimed exemptions
within 30 days from the date that the 341 meeting
concluded, unless further time was granted by the
court, (F.R.B.P. 4003(b)), along with burden of proof
that the exemptions were not properly claimed
(F.R.B.P. 4003(c)), then the exemptions are deemed
allowed (11 U.S.C. 522(l)), even if the claimed
exemptions are not legally allowable or are invalid
as a matter of law (See Taylor v. Freeland & Kronz,
503 U.S. 638, 112 Sup. Ct. 1644 (1992)). When an
exemption as to that property has become final, it
loses its character as property of the estate (In re
Norman, 157 B.R. 460 (C.D. Cal. 1993)(exempt
property is not property of the estate after it is
properly exempted)).
Exemption has the primary effect of removing

18
property from the estate, allowing Petitioner to
retain the exempted property for purposes of
support and advancing a fresh start. See 11 U.S.C.
542(a) (exempt property is not required to be turned
over to the Trustee); Sherk v. Texas Bankers Life &
Loan Ins. Co. (In re Sherk), 918 F.2d 1170, 1174
(5th Cir. 1990) (property found by the bankruptcy
court to be exempt is no longer property of the
estate); In re Gagnard, 17 B.R. 811, 813
(Bankr.W.D. La. 1982) (exempt property, though
initially property of the estate, becomes property of
the Petitioner).
XIII. CONCLUSION
1. Relief From The Stay
A request for relief from the stay is a hearing on a
request for relief from automatic stay is a contested
matter brought on by a motion not by adversary
proceeding. (Grella v. Salem Five Cents Savings
Bank, 42 F.3d26, 32 C.B.C. 2d 1303 (1 st Cir. 1994).
In D-1 Enterprises, Inc. v. Commercial State Bank ,
864 F.2d 36 (5th Cir. 1989), noting the two forms of
adversary proceedings and contested matters, the
court concluded that res judicata does not apply to
contested matters which employ a quick motionand-hearing style.
Despite the fact all creditors had received the
proper, timely and valid TILA notice of rescission,
Respondents foreclosure action is a Fraud on this
Court because TILA voids the security interest and
Respondents no longer had the authority to

19
foreclose on Petitioners home. Thus, the motion for
relief of stay granted to DanversBank and Chase
Home Finance should have been revised and
revoked and should had permanently enjoined
Respondents or any other creditors from initiating
any foreclosure proceedings that ultimately led to
the deprivation of Petitioners property rights.
The First Circuit Court of Appeals has clearly and
unequivocally stated that any violation of TILA,
regardless of the technical nature of the violation,
must result in a finding of liability against the
lender (Bizier v. Globe Financial Services, Inc., 654
F.2d 1, 3 (1st Cir. 1981). TILA is a remedial statute
designed to protect Petitioner who is not on equal
footing with Respondents and other creditors.
When Petitioner rescinded within the context of a
bankruptcy, courts have held that the rescission
effectively voided the security interest, rendering
the debt, if any, unsecured. (See In re Perkins, 106
B.R. 863, 874 (Bankr. E.D.Pa. 1989); In re Brown,
134 B.R. 134 (Bankr. E.D.Pa. 1991); In re Moore,
117 B.R. 135 (Bankr.E.D. Pa. 1990)).
2. Principle Of Res Judicata
The issue is whether res judicata applies after 1)
the 30 days of the 341 meeting, 2) the July 19, 2006
amendment of his schedules granted by the
Bankruptcy Court and 3) the TILAs 20-day period
to file a declaratory judgment are final and
nonappealable order which should have precluded
the Respondents and other creditors from objecting

20
as pointed out in Petitioners Memorandum of Law
in opposition to the Respondents and creditors
motion to object submitted to the Bankruptcy Court
prior the hearing (See In re Magallanes, 96 B.R.
253, 256 (9th Cir. BAP 1988). Res judicata, also
known as claim preclusion, bars the relitigation of
issues which were actually litigated as well as
issues which could have been litigated within the
time limit after the 341 meeting, the July 3, 2006
Petitioners amendment of his schedules and TILAs
strict liability rules which states that within the 20day period Respondents and creditors should have
sought a declaratory judgment action otherwise
any subsequent action must be time barred.
3. Respondents had NO legal standing to foreclose
Respondents and any other parties never provided
proof of a signed assignment that they actually
owned the loan, thus, they did not have legal
standing to foreclose in the first instance on
Petitioners property. Counsels for Respondents
had taken the position that they represented the
lender in the subject transaction. That was a false
assertion and that any notice of sale, foreclosure
action, sale or eviction proceeding were wrongful
abuse of the judicial system.
Respondents or any other entities are not the lender
and had no authority, ownership, possession or
control over the security instrument or note. Hence,
every action that were taken to foreclose and
disposed of the Petitioners property were wrongful

21
and illegal. Unequivocally, the initial contract (the
loan documents themselves) were legally invalid.
They were made fraudulently, overreaching, bad
loan practices, and loan origination practices which
violated both federal and state law.
As Officer of the Court, Counsel for Respondents
was obligated to perform due diligence to confirm
the facts alleged by its clients and in particular to
confirm legal standing. A timely response to
Petitioner's Qualify Written Request letter to
determine whether Respondents had the necessary
authority, possession of the original note or any
other documents entitling them to pursue sale or
foreclosure was never provided.
Most likely, that information would have revealed
that this transaction was securitized i.e.,
assigned up to mortgage aggregators, investment
bankers,. special purpose vehicle entities, secured
with credit default swaps and eventually
transferred, assigned or pledged to investors in
asset backed securities.
Notwithstanding the
above, Respondents has illegally foreclosed, sold
and evicted Petitioner from his home, despite the
facts that Petitioner was not in default since he had
rescinded the Note and alleged mortgage according
to TILA.
Both, the lender and trustee were aware of the fact
that they were not the real parties in interest (i.e.,
they lack standing to proceed to judicial or non-

22
judicial sale), the trustee and lender lack authority
to proceed but had intentionally and fraudulently
filed papers in federal court and posted notices as
though it had authority to proceed legally.
4. No Mortgage Equal No Foreclosure
In that instant case, a valid mortgage did not exist
on the property located at 28 Cedar Street, Lowell,
Massachusetts because Petitioner had timely and
validly exercised his right to rescind the transaction
pursuant to the federal Truth-in-Lending Act, 15
U.S.C. 1635. Rescission is a complete defense to
foreclosure on the property. FDIC v. Ablin, 532 N.E.
2d 379 (Ill. App. 1988); Community National Bank
& Trust v. McClammy, 525 N.Y.S. 20 2d 629 (App.
Div. 1988); Yslas v. D.K. Guenther Builders, Inc. ,
342 So. 2d 859 (Fla. Dist. Ct. App. 1977).
5. No Valid Mortgage Equal No Foreclosure
Without a valid mortgage, Deutsch Bank National
Trust should not have been allowed to continue
with the foreclosure action. The continuance of
foreclosure upon an invalid mortgage was a
constructive fraud, fraud in the inducement and a
FRAUD on the court which clearly lead to
immediate, substantial and irreparable harm to
Petitioner, his wife and his family fundamental
rights.
As a judicial notice to this court,
Respondents, on the other hand, suffered relatively
little harm with a windfall profit.

23
XIV. REQUESTED RELIEF
Thus, because no extreme and unmitigateable
prejudice to creditors and Respondents existed in
the case below after Petitioner had exercised his
TILA right of rescission, a writ of certiorari should
be granted because the Courts were incorrect in
denying Petitioner's appeal request for the
protection of his property rights and to void the
illegal foreclosure.
For the aforementioned reasons, the Courts Order
denying Petitioners right to the Emergency Motion
for Restraining Order Forbidden Foreclosure and
an Emergency Motion to Revise and Revoke order
dated December 27, 2005 should be reversed by the
United States Supreme Court in order to maintain
the uniformity nationally of the binding rules of
Federal Rules of Civil Procedures, Regulation Z and
Federal Rules of Evidence. Equally, the United
States Supreme Court should not forfeit truth for
the sake of finality, nor let the technical intricacies
of the law obscure the just administration and the
expectation of justice OR LOWER THE BAR TO
THE FINANCIAL INSTITUTIONS.
Lastly, granting a writ of certiorari and reversing
the Order of the Courts below will assure selfenforcement and ultimately promotes uniform
compliance by Respondents and other creditors in
accordance with the original intent of the Truth-InLending Act.

24
Good must overcome evil. Right must overcome
wrong. Justice must overcome injustice. May God
Bless the United States of America and the Judges
of the Supreme Court.
For the foregoing reasons, the Petition for Writ of
Certiorari should be granted.
Respectfully Submitted,

Pierre R. Augustin, MPA, MBA,

Petitioner, Private Attorney General, Ex Rel
Petitioner, 3941 Persimmon Drive, #102
Fairfax, VA 22031 | 617.202.8069
January 14, 2010

App. 1
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 08-1408
IN RE: Pierre R. Augustin,
Debtor,
____________________
Pierre R. Augustin,
Appellant,
v.
CHASE HOME FINANCE,
LLC,
Appellee.

)
)
)
)
)
)
)
)
)
)
)

Before Torruella, Boudin and Stahl, Circuit Judges.

JUDGMENT
Entered: March 10, 2009
We have considered the parties' briefs and the
record on appeal. The bankruptcy court's orders
denying appellant's motions for reconsideration did
not constitute an abuse of discretion.
Accordingly, the appeal is dismissed. Appellee's
request for costs and attorneys' fees pursuant to
Fed. R. App. P. 38, which is contained within its
brief, is denied. So ordered. See 1st Cir. R. 27.0(c).

App. 2
By the Court:
/s/ Richard Cushing Donovan, Clerk.
Cc: Charles Lovell, Pierre Augustin

App. 3
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Pierre R. Augustin,
Debtor,
Pierre R. Augustin,
Appellant,
v.
Chase Home Finance, LLC,
Appellee.

)
)
)
)
)
)
)
)
)
)

Bankruptcy Appeal No. 07-40066-NMG

MEMORANDUM & ORDER
GORTON, J.
On September 26, 2005, Pierre R. Augustin
(Augustin) filed a voluntary petition under
Chapter 7 of the Bankruptcy Code.
That bankruptcy has been extensively litigated,
including multiple appeals to this Court over the
past two years. The present appeal by the Debtor is
from a denial by the Bankruptcy Court of his
Motion for Reconsideration of its Order Granting
Relief to the mortgagee/Appellee, Chase Home
Finance, LLC (Chase).
I.

Factual Background

App. 4
Chase is the holder of a mortgage on the premises
located at 28 Cedar Street, Lowell, Massachusetts
(the Property). This appeal arises out of Chases
effort to foreclose on that mortgage and Augustins
attempt to prevent such foreclosure on the grounds
that he has rescinded the mortgage pursuant to 15
U.S.C. 1601 et seq., the Truth in Lending Act
(TILA). A borrower, in a residential mortgage
transaction, has an unconditional right to rescind
until midnight on the third day following the
completion of the transaction. 15 U.S.C. 1635(a).
TILA requires creditors to disclose to borrowers who
negotiate mortgages the terms and conditions of the
loan, including the debtors right to rescind where
such a right exists. That disclosure must be
provided, in duplicate, to each borrower. Id. In the
event that disclosure is not properly made, the
rescission period is extended from three days to
three years. 15 U.S.C. 1635(f).
Augustin contends that Chase provided him with
inadequate notice of terms, i.e. instead of two copies
each for himself and his wife, he claims to have
received only one copy altogether. He alleges that
his rescission period was, therefore, extended to
three years from the loan date of April 15, 2004 and
that he submitted a notice of rescission on
September 21, 2006. Chase responds that the notice
was adequate and has produced a TILA
Disclosure Statement that Augustin and his wife
both signed indicating that they received the
required copies. The Property was not initially

App. 5
exempted from Augustins bankruptcy estate but,
pursuant to 11 U.S.C. 362(a), any foreclosure
proceedings against it were automatically stayed
pending resolution of the bankruptcy proceeding.
On December 10, 2005, Chase filed a Motion for
Relief from Automatic Stay on the grounds that the
encumbrances on the Property outweighed its
liquidation value so that Augustin had no equity in
it and the automatic stay was therefore
unnecessary and inappropriate. 11 U.S.C. 362(d).
That motion was allowed by the Bankruptcy Court
in an order dated December 27, 2005 (the Order
Granting Relief). Augustins legal claim to a right
of rescission of the mortgage pursuant to TILA,
which was ripe at the time that he filed his petition
for bankruptcy, was also not initially exempted from
the bankruptcy estate. Throughout the year 2006
Augustin made several attempts to amend his
bankruptcy petition to exempt the Property and his
TILA claim from the estate. His motions to amend
were denied on November 9, 2006 and an appeal of
that denial remains pending in a separate
proceeding. On January 26, 2007, Augustin filed an
Emergency Motion to Revise and Revoke Order
and, a few days later, an Emergency Motion for
Restraining Order Forbidding Foreclosure.
Notwithstanding their unconventional titles, those
motions urged the Bankruptcy Court to reconsider
its Order Granting Relief and were, accordingly,
treated together by the Bankruptcy Court as a
motion for reconsideration. At the motion hearing

App. 6
on February 1, 2007, counsel for Chase submitted to
the Court its copy of the TILA disclosure form
executed by Augustin and his wife at the
origination of the loan. Both borrowers signed the
form immediately below the statement I
acknowledge receiving two copies of this Notice of
Right to Cancel form. The motion for
reconsideration was denied.
II. Legal Analysis
A. Standard of Review
Although legal conclusions of a bankruptcy court
are ordinarily reviewed de novo, Brandt v. Repco
Printers & Lithographics, Inc. (In re Healthco Intl,
Inc.), 132 F.3d 104, 107 (1st Cir. 1997), denials of
motions for reconsideration are reviewed only for
abuse of discretion. Salem Five Cents Savings Bank
v. Tardugno (In re Robert A. Tardugno), 241 B.R.
777, 779 (1st Cir. B.A.P. 1999). Abuse of discretion
occurs when 1) a material factor deserving
significant weight is ignored, 2) an improper factor
is relied upon or 3) the proper factors are assessed
but the court makes a serious mistake in weighing
them.Id.
B. Application
Careful review of the Bankruptcy Court record
makes it abundantly clear that Bankruptcy Judge
Rosenthal was aware of all the material factors
governing Augustins motion for reconsideration
and did not rely on any improper factors in
reaching his decision to deny it. The motion for

App. 7
reconsideration raised no new factual claims nor
any patent error of law in the Order Granting
Relief. It was simply an effort to raise a different
legal argument arising out of facts that were known
at the time that the Order Granting Relief was
issued. Augustin does not contend that the Order
was improper given that the encumbrances on the
Property exceed its value. He contends rather that
in valuing the encumbrances the Court should not
have included the Chase mortgage which he claims
to have rescinded. Bankruptcy Judge Rosenthal
was aware of Augustins contentions and decided
that, because Augustins TILA rescission claim is
disputed and has not been resolved in his
favor, the mortgage lien remains effective and
nothing warrants reconsideration of the Order
Granting Relief. That decision was not clearly
erroneous as a matter of law and, therefore, did not
constitute an abuse of discretion.
The proper avenue by which the Debtor should
have presented this claim was not to seek
reconsideration of the wholly unobjectionable Order
Granting Relief but rather to seek, in the
Bankruptcy Court, the exemption of the legal claim
from the bankruptcy estate and then to commence a
new action in the District Court on that basis.
Indeed, Augustin has done something similar: he
moved to amend Schedule C (exemptions) to his
bankruptcy petition to include this very legal claim
but that motion was denied. His appeal of that
denial is pending and, furthermore, he has initiated

App. 8
a separate action in this Court to pursue the TILA
claim. At the February 1, 2007 hearing Bankruptcy
Judge Rosenthal commented that consideration of
the merits of the TILA claim was unnecessary to
the disposition of the then-pending motion for
reconsideration. Such an analysis would be
similarly irrelevant here and this Court declines to
undertake it. Because the motion for
reconsideration identified no new evidence or clear
errors of law, Bankruptcy Judge Rosenthal did not
abuse his discretion in denying it. Chases motion to
dismiss this appeal will, therefore, be allowed.
ORDER
For the foregoing reasons, the appellees motion to
dismiss (Docket No. 7) is ALLOWED and Augustins
appeal is DISMISSED.
So ordered.
/s/Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 3, 2008

App. 9
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
In Re: Pierre Augustin
Pierre Augustin
Appellant
v.
Chase Home Finance
Appellee

)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 07-40066

ORDER OF DISMISSAL
Gorton, D. J.
In accordance with the Court's Memorandum and
Order dated 3/4/08 granting appellees motion to
dismiss, it is hereby ORDERED that the above
entitled action be and hereby is dismissed.
By the Court,
/s/ Craig J. Nicewicz
Deputy Clerk
Date: 3/5/08

App. 10
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
In Re: Pierre R. Augustin )
)
Case Number: 05-46957 )
Proceeding Memorandum/Order
#169 Debtor's Motion Objecting to Propose Sale of
Real Property Pursuant Rule 6004(b) Based on
Affirmative Defenses Due to the Violations of the
Truth-In-Lending Act (TILA), Real Estate
Settlement and Procedure Act (RESPA)
and Mortgage Fraud and #173 Amendment Thereto
Court Action: Denied
Decision set out more fully by court as follows:
#169 DENIED.
FOR THE REASONS SET FORTH ON THE
RECORD THE MOTION IS DENIED.
So ordered:
Judge Joel Rosenthal
Date: 6/7/2007