Opposition to Trustee's Motion to Squash Subpoena

“A good name is more desirable than great riches; to be esteemed is better than silver or gold.” - Proverb 22:1

Praises & Thanks be unto The Lord My God for the wisdom, knowledge and understanding on legal matter because I received countless feedbacks from folks facing foreclosure and bankruptcy around the United States as follows:

Comments: "I have been inundated with TILA questions. So I went out hunting to see if anyone had already written about it in terms that a lay person might be able to understand. What I found is shown below. I believe it to be generally correct and the citations are good citations of law. See this site for the entire write-up. It should give most lay people an idea on how to handle this and it will be valuable to your lawyer if he/she is not totally familiar with the TILA context at the following link:" http://rcxloan.com/Civil_Action_BK_Motion_14.htm. Statement made by Attorney at Law, Neil F. Garfield, M.B.A., J.D.

A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, a rich man whose land was worth close to $700 billion in today‘s money; the other, Mr. Augustin, a farmer whose land was worth $300,000. One day, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust asked Mr. Augustin to give him his land, that he may have it for a vegetable garden. But, Mr. Augustin said to Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, “The Lord forbid me that I should give to you the inheritance of my fathers”.

When Jezebel, the wife of Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust, heard what Mr. Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Mr. Augustin‘s land. So, Jezebel wrote letters in Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Mr. Augustin. Then, issued a decree that Mr. Augustin’s land is now Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust.

So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust take possession of Mr. Augustin’s land which he had refused to give. The sad part is that Mr. Augustin was forced off his land illegally and fraudulently. Mr. Augustin left with nothing and forced to seek refuge from Jerusalem to a land called ‘Fairfax, Virginia’ to start from scratch. Whereas, Ameriquest-New Century-Chase Home Finance-Deutsche Bank National Trust became more wealthy with the unwarranted possession of his and hold more than $700 billion of assets as a result.

Questions? Why was Mr. Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”

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UNITED STATES BANKRUPTCY COURT OF DELAWARE

Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. (NCM) )

I. Motion to STRIKE and to Object of Trustee’s substitution for Non-Parties Witnesses
II. Motion To OBJECT Liquidating Trustee’s Motion to Squash Deposition of 10/01/08
III. Motion to COMPEL Deposition, To Produce Document & Assume Cost of Discoveries
IV. Motion to REVISE Scheduling Order to Reflect undue Delays
V. REQUEST FOR JUDICIAL NOTICE

"...to remain silent and indifferent is the greatest sin of all..."
- Elie Wiesel, a Holocaust victim and writer

“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.”
- Statement by a Presidential Candidate

“The prospect of waging a protracted discovery battle with all of these well funded parties in hopes of uncovering evidence of predatory lending can be too daunting even for those victims who know such evidence exists. So imposing is this opaque corporate wall, that in a “vast” number of foreclosures, MERS actually succeeds in foreclosing without producing the original note--the legal sine qua non of foreclosure--much less documentation that could support predatory lending defenses”.
- Inside B&C Lending, supra note 431, at 14 (quoting MERS CEO R.K. Arnold)

A STORY TO THINK ABOUT
“Once upon a time in the Ancient Roman Empire, 27 BC, there were two men living in Jerusalem. One was named New Century-Chase Home Finance, a rich man whose land is worth $400 billion in today‘s money; the other, Augustin, a farmer who land is worth $300 billion. One day, New Century-Chase Home Finance asked Augustin to give him his land, that he may have it for a vegetable garden. But, Augustin said to Century-Chase, “The Lord forbid me that I should give to you the inheritance of my fathers”.

When Jezebel, the wife of New Century-Chase Home Finance, heard what Augustin said to him. She said, don‘t worry love, I will take care of the matter? Arise, eat bread, and let your heart be joyful; I will give you Augustin‘s land. So, Jezebel wrote letters in New Century-Chase Home Finance’s name and seal them with his seal and sent letters to the elders and to the nobles who were living in Jerusalem. Now she wrote in the letters, saying, proclaim a ‘relief of stay trial’ in the absence of Augustin. Then, issued a decree that Augustin’s land is now New Century-Chase Home Finance.

So the men of Jerusalem, the elders and the nobles did as Jezebel had sent word to them, just as it was written in the letters which she had sent them. New Century-Chase Home Finance take possession of Augustin’s land which he had refused to give. The sad part is that Augustin was forced off his land illegally and fraudulently. Augustin left with nothing and forced to flee from Jerusalem to a land called Virginia to start from scratch. Whereas, New Century-Chase Home Finance became more wealthy with the unwarranted possesion of Augustin’s land and hold $700 billion of assets as a result.

Questions? Why was Augustin absent in the relief of stay trial? Why did the elders and the nobles just do as Jezebel asked them? Let us all fast forward in 2008, what do you think the elders and the nobles should have done differently?”

FUNDAMENTAL BASIS OF ARGUMENT
1. Rule 11 - Useful tool of the Court to restraint frivolous & abusive litigation such as delay, and obstruction of Judicial, administrative and consumer investigations and discovery.

Under the guise of a Motion to Squash, the Lawyers for the Liquidating Trust are presenting, to this court an ‘improper purpose’. At best, this motion to Squash can be strictly classified an improper purpose to cause delay or other improper objective that Consumer Creditor cannot decipher.

“The civil justice system in the United States depends on the willingness of both litigants and lawyers to try in good faith to comply with the rules established for the fair and efficient administration of justice. When those rules are manipulated or violated for purposes of delay, harassment or unfair advantage, the system breaks down…. My experience as a participant in and observer of civil litigation has convinced me that abuse of the judicial process… is widespread. Abuse of the judicial process occurs most often in connection with discovery. Unjustified demands for and refusals to provide discovery prolong litigation and drive up its costs. Fabrication and suppression of material facts are regrettably common occurrences, although lawyers and judges are often reluctant to admit it.” (Charles B. Renfrew, Discovery Sanctions: A Judicial Perspective, 67, CAL. L. REV. 264, 264-65 (1979)(citations omitted).”

2. Judge’s Order of June 24, 2008 was in effect prior his August 1, 2008 Order
a. Rebuttal of ¶ # 3,4 & 5 from Trustee’s motion
b. Extracted from August 20, 2008 Transcript, page 59 to 62

THE COURT: All right. Mr. Augustin, as the debtor has indicated in its pleadings, I must first address a threshold issue, and that is whether I should even get to the merits of any claim that you might have, because it was later field. And the standard I look to is the one that the debtor has described in its papers, and that is, I must consider the following factors. One, the danger of prejudice to the debtor, two, the length of the delay and its potential impact on judicial proceedings, three, the reason for the delay, including whether it was within the reasonable control of the movant, and four, whether the movant acted in good faith. There is no one factor that’s dispositive. Not necessarily all are to be considered. I look at those factors and I find, as you might have gleaned from my discussions with debtor’s counsel at the outset of this hearing that I don’t see much prejudice to the debtor in allowing the late claim. The reason for the delay and whether you acted in good faith, I would say against another backdrop might not carry a lot of weight with me, but it’s obvious that you have been aggressively pursuing this dispute whether it has merit or not. And it seems to me your positions and your multiple filings support the view that you certainly didn’t intend to pass up on an opportunity to make a claim knowing that you had one. So for those reasons on balance I will allow it. Now, the next question in my mind is whether, and we won’t reach the merits today, but the first question in my mind, Mr. Samis, I’ll direct to you, and that is, is this a matter that needs to proceed by adversary or is it a contested
matter?

MR. SAMIS: Well, Your Honor, I would say that given the rules that would govern an adversary proceeding and the rules that would govern a contested matter, I think this would be better, we would better be able to pursue the matters I think as a contested matter in the court case. I think that we can probably -- now that the issue of whether or not the claim was late filed is resolved, I think that the debtors can better and formally communicate with Mr. Augustin to reach a resolution at this point.

THE COURT: Well, let’s do this. Let’s put it on for statue in the August Omnibus hearing and, Mr. Augustin, if the matter’s not resolved by agreement before that time, you may participate by telephone, you will not need to appear personally for the hearing in August, which is which date?

MR. SAMIS: Your Honor, I would have to go back and check, but I can circulate it. August 20th, I believe, Your Honor, is that correct, at 2:30 p.m.

THE COURT: August 20th at 2:30. But if it’s not resolved at that point, my intention would be to enter a scheduling order not unlike what I would schedule in an adversary proceeding. I would also likely order mediation. Now, Mr. Augustin, what I want you to be aware of is, if the matter’s not resolved, you’re perfectly free to press your claim. Don’t take any remark of mine to be considered my advice to you that you settle. But if you decide to press forward and bring to me the merits of your claim against New Century, you will be required to comply with the requirements of the Bankruptcy Code, the bankruptcy rules, our local rules and any order that I enter governing the conduct of this litigation. And the fact that you choose to represent yourself will not excuse you from compliance with any of those requirements, and you need to understand this. So I’ll give Mr. Samis a chance to discuss with you whether you can resolve this matter after this hearing. If not, we’ll hear from you in August, we’ll set up a schedule for the taking of discovery and other things that are necessary to govern the resolution of this dispute.

3. Full Discoveries Rights Granted By Judge on August 20, 2008
Rebuttal for ¶ #9, #10, #12, #14, #15, #16, #17, #18, #19. Incidentally, Consumer Creditor did follow local rules in giving Trustee ‘reasonable time’ to produce witnesses and documents and that Consumer Creditor “will have all the rights that you would have had had this been commenced as an adversary proceeding“ quoted statement of Judge Kevin J. Carey.

Extracted from August 20, 2008 Transcript, page 69

“MR. AUGUSTIAN: -- you gave the option to -- to the attorney Christopher whether I should proceed as an adversary proceeding or contested matter. He chose adver -- contested matter. I was not called forward to ask my opinion. That’s why I stepped forward to --

THE COURT: Yeah. Well, the --

MR. AUGUSTIAN: -- let the Court know.

THE COURT: I guess the -- the short way of -- of responding to that is we can design pre -- pretrial procedures basically to afford whatever due process rights you would like to have. So, in substance, there’s going to be no difference at the end of the day. So, you will have all the rights that you would have had had this been commenced as an adversary proceeding. And, it’s actually procedurally probably better for you that it proceed that way. So, we’ll make it so that there is no difference. Do you understand what I’m saying?

MR. AUGUSTIAN: Yes, Your Honor. I was just reading the -- the rules as it states. So, I am not expert in the law. But, if you feel that way, that I -- all my rights will be protected, then -- it’s on the record. Then, if -- if some time I feel it does not and something fall through the crack, I’ll file an appeal.

THE COURT: Well, you know where to find me.

MR. AUGUSTIAN: Okay.”

3. Assignee Liability rules render the holder of an assigned mortgage loan liable for the legal violations made in the origination of the loan. Liquidating Trustee is now in the shoe of New Century Mortgage.

4. Securitization of Mortgage Loan
Your Honor, five decades ago, Consumer Creditor could have asked only to depose just one party since one company was in charge for the full servicing of the loan. However, with the complexity of securitize instrument and the fact that servicing rights have changed hands, Consumer Creditor must served both old and new businesses or anyone/entity that came into contact with his mortgage loan (see figure a below) such as Brokers, originator, MERS, master servicer, sub-servicer, special servicer, trustee, seller, underwriter, underwriter’s due diligence contractor & others to bring forth information that will tend to lead to admissible evidence and have some bearing on this case. For a list of parties to be deposed, please see the parties that are listed on the certificate of service.


I. MOTION TO STRIKE & TO OBJECT To Trustee’s Motion to Squash
A motion to strike is defined as a request for a judge's order to eliminate all or a portion of the written Liquidating Trustee’s Motion on any one of several grounds. A motion to strike is applicable when a motion contains “redundant, immaterial, impertinent or scandalous” materials or legally insufficient defenses. Thus, Consumer Creditor object and move to strike those [p]ortions of his motion on paragraphs #11, #13, #21 to # 24 and any testimony on the part of the Trustee in reference to the Emergency Motion cannot be allowed since Counsel for the Liquidating Trust cannot substitute himself into the shoes of Non-Parties Ordinary Witness or speak in their names.

Trustee can’t testify. Trustee must produce witnesses. Trustee can’t testify for witnesses. Also, Consumer Creditor object to Trustee’s various objection classified as (“Objection”) to the Emergency Motion since Consumer Creditor is entitled as a matter of right to file motion to the Court for an Order or Permission to do something. Trustee cannot be allowed to give any testimony or speak on behalf of non-party witness. Trustee is not a witness, Trustee cannot testify”. Therefore, Consumer Creditor moves this Court to refrain Trustee to step into the shoe of non-party witnesses or speaking on their behalf.

II. MOTION TO OBJECT Liquidating Trustee’s Motion to Squash Deposition of 10/01/08
1. Prime Ordinary Witnesses
Robert K. Cole, Brad A. Morrice, Edward F. Gotschall and Patti M. Dodge are ordinary non-parties witnesses that served as officers and directors of a publicly-held company whose shares were registered with the SEC pursuant to the Exchange Act, traded on the New York Stock Exchange, and governed by the Federal securities laws. They each had a duty to disseminate information with respect to the Company’s business, operations, financial statements and internal controls. They also control the content of the press releases, SEC filings and other public statements issued by New Century.

The New Century Officers’ were controlling persons of the company due to their senior executive positions therewith; their direct involvement in its day-to-day operations including its financial reporting and accounting functions; and their signatures on and participation in the preparation and dissemination of New Century’s public filings. Thus, the New Century Officers had the power to influence and control and did influence and control, directly or indirectly, the decision making of New Century, including the content of its financial statements and public statements. These Executives were each involved in drafting, producing, reviewing and/or disseminating the statements and set the company policy to its employees, business partners and its agents regarding underwriting and credit practices. Therefore, they are prime ordinary witness subject to discovery and deposition in accordance with the rule of law.

III. Motion to COMPEL Deposition, To Produce Document & Assume Cost of Discoveries
At the hearing on August 20, 2008, The Honorable Judge Kevin J. Carey said that Consumer Creditor “will have all the rights that you would have had had this been commenced as an adversary proceeding”. Pursuant to Fed.R.Civ.P., Rule 37(a), Consumer Creditor requests an order compelling Trustee to produce witnesses for deposition questioning at the expense of New Century Mortgage and/or Liquidating Trust. Consumer Creditor requests an award of costs to cover all future deposition questioning due to undue delayed since he is not requesting objectionable, private, privileged or otherwise confidential information.

The general rule of discovery is that parties may obtain information regarding any matter relevant to the subject matter involved in the pending action so long as the matter is not privileged. It is not grounds for objection that the information may be inadmissible at trial, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Thus, the Court must compel Counsel to produce requested documents and assumed full cost of present and future discoveries.

Since Trustee is opposing the deposition of ‘designated deponents & Debtors’ former officers’ and is in control of facts peculiarly within Debtor's knowledge (Transcript p 70: 12-21, “Obviously you had said why don’t you, in the meantime, reach out to Mr. Augustian, investigate the facts and circumstances on -- you know, from a substantive perspective, and determine whether or not there’s any way to settle the claim. I did commence an investigation and spoke with the former general counsel of the company, who is now functioning as a consultant. The results of that investigation at our transition meeting I did produce to Mr. Carickhoff, so he has them), as is the case in the instant proceedings, and it is not asserting a privilege or immunity from the discovery request, the burden of proof must necessarily shift from the proponent of depostion to the opponent of deposition.

If Trustee is claiming the seeking of deposition as privilege, he must supply the court with sufficient information to enable the court to determine that each element of the privilege is satisfied. Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994); F.T.C. v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980). A failure of proof as to any element of the privilege causes the claim of privilege to fail. Kelling, 157 F.R.D. at 497; Bulk Lift Intern., Inc. v. Flexcon & Systems, Inc., 122 F.R.D. 482, 492 (W.D.La. 1988).

IV. MOTION TO REVISE Scheduling Order to Reflect undue Delays
Due to the unforeseen circumstances and realization that Consumer Creditor will need documents and deposition from many individuals and third party witnesses, the schedule of discovery should reflect that reality.

V. REQUEST FOR JUDICIAL NOTICE
Pursuant to Federal Rule of Evidence, Judicial notice in federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof. A court must take judicial notice "if requested by a party and provided with the necessary information." Federal judicial notice is appropriate when a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

“Lincoln defended a man named William "Duff" Armstrong, who had been charged with murder. (1) Armstrong's co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next. (2) The testimony at Norris' trial was that, on the evening of August 29,1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state's key eyewitness. (3) Allen claimed he saw Norris and then Armstrong strike Metzker in the head. (4) The prosecution used Allen's eyewitness testimony to convict Norris. (5)

During Armstrong's trial, Allen again presented testimony similar to his testimony in the Norris trial. (6) Lincoln cross-examined Allen in great detail, directing much of his examination to Allen's claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet. (7) At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857. (8) Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away. (9) Many have since posited that Lincoln's production of the almanac--and the lower court's judicial notice of it--broke the prosecution's case and won the acquittal of Lincoln's client. (10)

But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it.?”

Like Abraham Lincoln, Consumer Creditor would like the court to take Judicial Notice of the underlying causes of mortgage fraud and loose underwritings led partly for 1) the 451-page (too many pages to include as exhibits, but it is online at congress website & common knowledge to all americans) Emergency Economic Stabilization Act that grants the Treasury secretary unprecedented authority to buy up to $700 billion of troubled assets from ailing financial institutions in an effort to stave off more bankruptcies and provide cash for new loans to ease the credit market freeze-up.

2) “President Bush Signs H.R. 1424 Into Law - On Friday, October 3, 2008, the President signed into law: H.R. 1424, the Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008, and Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which authorizes the Secretary of the Treasury to establish a Troubled Assets Relief Program to purchase troubled assets from financial institutions; provides Alternative Minimum Tax relief; extends expiring tax provisions and establishes energy tax incentives; and temporarily increases Federal Deposit Insurance limits.”

Furthermore, during the debate of the bill in both the House and the Senate by Expert Economists, Financial Executives and speeches by members of congress, the common theme was that loose underwriting guidelines and mortgage fraud were some of the causes that led to this financial crisis.

3) Incidentally, Consumer Creditor had received a similar subprime loans with adjustable interest rates from New Century Mortgage, in reality, it was a predatory loan, similar to what Countrywide had issued and Bank of America offered to settle with many states’ Attorneys General. Here is a copy of the Wall Street Journal article:

“OCTOBER 6, 2008, 4:05 P.M. ET Bank of America in Settlement Worth Over $8 Billion , Nearly 400,000 Borrowers Covered in Deal With State Attorneys General Over Risky Loans Originated by Countrywide Financial By RUTH SIMON.

In a sweeping deal that could be worth more than $8.4 billion, Bank of America Corp. has agreed to settle claims brought by state attorneys general regarding certain risky loans originated by Countrywide Financial Corp. The bank agreed to settle claims over risky loans originated by Countrywide Financial.

The deal will cover nearly 400,000 borrowers, Bank of America announced on Monday. It will apply to borrowers who took out subprime loans with adjustable or fixed interest rates as well as those with option adjustable-rate mortgages that are serviced by Countrywide, which was acquired by Bank of America on July 1. Option adjustable-rate mortgages allow borrowers to make a minimum payment that may not even cover the interest due and can lead to a rising loan balance. The cost of the program will be shared by Bank of America and investors who own securities composed of mortgages originated by Countrywide or by third parties who sold those loans to Countrywide. The eligible mortgages were originated prior to Dec. 31, 2007.

"With this settlement, we have the first-of-its-kind mandatory loan modification program," said Illinois Attorney General Lisa Madigan, who had filed a civil lawsuit alleging that Countrywide engaged in unfair and deceptive practices. "This program is going to help homeowners stay in their homes, which ultimately helps investors," she added. "It will shore up communities and therefore it will help with the economy." Under the terms of the deal, Bank of America has agreed to, where possible, modify the terms of these loans where borrowers are seriously delinquent or likely to become so after their interest rate or monthly payment resets. Bank of America will first try to refinance borrowers into government-backed loans under the federal Hope for Homeowners program, which will generally require a reduction in the principal of the borrower's loan.

Another option is to reduce the borrower's interest rate to make the loan more affordable. In some cases, borrowers' interest rates may be reduced to as low as 2.5%, then rise in a stepwise fashion over time, a Bank of America spokesman said. "We are seeking to put customers into loan modifications that are affordable and sustainable," the spokesman said. Under the program, borrowers' mortgage-related payments shouldn't exceed 34% of their monthly income. The modifications will be offered to borrowers who live in their homes and not to investors.

For borrowers with option adjustable-rate mortgages, Bank of America will reduce loan amounts so that borrowers have as much equity, if not more, than when they took out the option ARM, a Bank of America spokesman said. Bank of America won't charge borrowers for modifying the loans and will waive any prepayment penalties for those with option ARMs. The value of the modification program is as much as $8.4 billion, according to the Bank of America spokesman. The costs of the program "have already been estimated and accounted for" by Bank of America as part of its acquisition of Countrywide, the spokesman added.

The Countrywide settlement is likely to become the largest "predatory lending" settlement in history, said California Attorney General Edmund G. Brown Jr. in a statement. The agreement would dwarf the nationwide $484 million settlement with Household Finance Corp. in 2002, he added. Countrywide has faced civil lawsuits from a number of states, including California, Florida and Illinois. Those three states played a key role in negotiating the settlement, a Bank of America spokesman said. The Countrywide settlement "will be a good framework" for negotiations with other mortgage companies, said Florida Attorney General Bill McCollum. Mr. McCollum added that the precise details of the program are still being finalized.

In some cases, changing the terms of the loan will require the approval of investors who hold securities made up of loans that are serviced by Countrywide. Bank of America "will continue to work with investors" to get approval for the modifications, the Bank of America spokesman said. "We believe this creates a win-win for investors and for customers." Bank of America has also set aside $150 million to provide relief for borrowers in foreclosure by, in many cases, refunding portions of closing costs and fees associated with the loan. Another $70 million has been put aside to provide financial assistance to borrowers who will lose their homes to "help them get on their feet and leave the mortgage premises in good condition," a Bank of America spokesman said. While loan modifications will be offered nationally, the additional $220 million will be made available to residents of states that ultimately sign an agreement with Bank of America.

In addition to California, Florida and Illinois, attorneys general in a number of other states, including Arizona, Connecticut, Iowa, Michigan, North Carolina, Texas and Washington, are also expected to sign the agreement, the Bank of America spokesman said. Bank of America will begin sending offers to borrowers who qualify for a modification by Dec. 1. Bank of America won't initiate or advance foreclosure sales for borrowers who are likely to qualify for a program until a decision has been made regarding borrowers' eligibility.”

CONCLUSION
Counsel for New Century Mortgage, the Liquidating Trust and others in this case are not without legal objections and legal technicalities so as to avoid the litigation on the merit of Consumer Creditor’s claim. However, now the time has come for the opposing counsels to rise above and behind legal technicalities in accordance to their Attorney’s Oath to support the Constitution of the United States:

“I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.”

Relief Requested

As eloquently stated by one of the presidential candidate:

“Our regulatory system must protect consumers and investors by punishing individuals who engage in fraud, break contracts, or lie to customers -- like the predatory lenders who know you can't afford an adjustable rate mortgage, but mislead you into signing one. These actions are criminal and the people who commit them should be behind bars.”

Consumer Creditor is not looking for sympathy. Consumer Creditor is not looking to be rewarded. Consumer Creditor is not here seeking the punishment of Debtor, Liquidating Trust and potential ordinary parties or non-parties witnesses. Consumer Creditor is seeking an Order from this Court to do what the law of discovery empower him to accomplish in gathering information that will tend to lead to admissible evidence by using the tool of deposition beyond the 100 miles.

Your Honor, the public has an interest in the orderly administration of justice. Public policy favors the full litigation of the mortgage fraud claims on its merit and to broadly conduct full discovery. (See U.S. v. Premises and Real Prop. At 4492 S. Livonia Rd., F. 2d 1258, 1263 (2d Cir. 1989), see also U.S. v. All Assets of Statewide Auto Parts, Inc., 971 F. 2d 896, 902 (2d Cir. 1992) (a claimant’s interest in his home merits special constitutional protection). Although not a lawyer or pretending to be one, Consumer Creditor is seeking an Order from this Court to allow him to do what the [law of discovery empower him to accomplish in gathering information that will tend to lead to admissible evidence] by:

1. Granting the Motion to Strike and to Object to the Self-Substitution of Liquating Trustee for Non-Parties Witness In “OBJECTING to the Emergency Motion”

2. Granting the Motion To Object to Liquidating Trustee’s Motion to Squash Deposition

3. Granting the Motion to Compel Witnesses to Deposition & To Assume Full Cost of all future discoveries

4. Granting the Motion to Revise Scheduling Order to Reflect undue Delays

Consumer Creditor as an outsider of courtroom litigation ponders and reflects on the following oath that every federal judge takes to uphold the Constitution of the United States:

''I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”

Respectfully Submitted,

Pierre R. Augustin, MPA, MBA, Pro Se
Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617)202-8069
Date: October 10, 2008

Attorneys and Parties Served

Counsel to the Debtors
Suzzanne S. Uhland, Ana Acevedo, Emily R. Culler
O’Melveny & Myers LLP
275 Battery Street
San Francisco, CA 94111
T: (415) 984-8700, F: (415) 984-8701

Co-Counsel to the Debtors
Mark D. Collins, Michael J. Merchant, Christopher M. Samis
Richards, Layton & Finger, P.A.
One Rodney Square, P.O. Box 551
Wilmington, DE 19899
T: (302) 651-7700

Attorney, David W. Carickhoff, Jr
Blank Rome LLP
Chase Manhattan Centre
1201 Market Street, Suite 800
Wilmington, DE 19801
302-425-6400

Joseph J. McMahon, Jr., Esquire
United States Department of Justice
Office of the United States Trustee
J. Caleb Boggs Federal Building
844 King Street, Suite 2207, Lockbox 35
Wilmington, DE 19801, Courtesy copy

United States Bankruptcy Court
District of Delaware
824 Market Street, 3rd Floor
Wilmington, DE 19801
T: (302) 252-2900

U.S. Trustee
United States Trustee
844 King Street, Room 2207
Lockbox #35
Wilmington, DE 19899-0035
302-573-6491

Official Committee of Unsecured Creditors
Attorney, Bonnie Glantz Fatell
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
(302) 425-6423

Attorney, Christopher M. Samis
Richards, Layton & Finger, P.A.
920 N. King Street
Wilmington, DE 19801
302-651-7845

Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
Assigned: 12/16/2005

Jonathan R. Goldsmith
Jonathan R. Goldsmith, Esq
1350 Main Street
10th Floor
Springfield, MA 01103
413-747-0700
trusteedocs1@jgoldsmithlaw.com
1. Cert#:70073020000233248181
Status: Delivered

Your item was delivered at 3:05 PM on September 22, 2008 in SPRINGFIELD, MA 01103.

Giles Krill
Law Offices of Edward A Gottlieb
309 Washington St
Brighton, MA 02135
617-789-5678
Assigned: 03/23/2006 Commonwealth Land Title Ins. Co.
1. Cert#:70073020000233249174
Status: Delivered

Your item was delivered at 11:37 AM on September 18, 2008 in BRIGHTON, MA 02135.

Charles A. Lovell
Partridge,Snow & Hahn LLP
180 South Main Street,
Providence, RI 02903-7120
(401) 861-8200
cal@psh.com
Assigned: 10/03/2006
representing Chase Home Finance LLC
1. Cert#: 70073020000233249297
Status: Delivered

Your item was delivered at 8:45 AM on September 18, 2008 in PROVIDENCE, RI 02903.
Lauren A. Solar
Barron & Stadfeld, P.C.
100 Cambridge Street
Suite 1310
Boston, MA 02114
617-723-9800
las@barronstad.com
Assigned: 12/10/2005 representing Deutsche Bank National Trust Company, Trustee
1. Cert#:7007 3020 0002 3324 9280
Status: Delivered

Your item was delivered at 10:11 AM on September 18, 2008 in BOSTON, MA 02114.

Ronald S. Allen
Morgan, Brown & Joy LLP
200 State Street
11th Floor
Boston, MA 02109
617-523-6666
617-367-3125 (fax)
rallen@morganbrown.com
Assigned: 05/22/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1.Cert#:7007 3020 0002 3324 9273
Status: Delivered
Your item was delivered at 10:32 AM on September 18, 2008 in BOSTON, MA 02109.
Allied Home Mortgage Capital Corp.

R. Bruce Allensworth
Kirkpatrick & Lockhart, Nicholson Graham LLP - MA
One Lincoln Street
Boston, MA 02111-2950
617-261-3119
617-261-3175 (fax)
ballensworth@klng.com
Assigned: 10/05/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9266
Status: Delivered
Your item was delivered at 11:41 AM on September 18, 2008 in BOSTON, MA 02205.


Ameriquest Mortgage Company

John Connolly, Jr.
Law Offices of John Connolly, Jr.
One Common Street
Wakefield, MA 01880
781-245-5490
781-246-4114 (fax)
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7007 3020 0002 3324 9259
Status: Delivered

Your item was delivered at 9:35 AM on September 18, 2008 in WAKEFIELD, MA 01880.

Old Republic National Insurance

David J. Gallagher
Regnante, Sterio & Osborne
401 Edgewater Place
Suite 630
Wakefield, MA 01880-6210
617-246-2525
781-246-0202 (fax)
dgallagher@regnante.com
Assigned: 05/26/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9242
Status: Delivered

Your item was delivered at 2:12 PM on September 19, 2008 in WAKEFIELD, MA 01880.

DanversBank

Kevin P. Geaney
Connolly Law Offices, LLC
545 Salem Street
Wakefield, MA 01880
781-557-2000
781-246-1441 (fax)
kgeaney@wakefieldlaw.com
Assigned: 06/09/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#:7007 3020 0002 3324 9235
Status: Delivered

Your item was delivered at 12:37 PM on September 18, 2008 in WAKEFIELD, MA 01880.


Old Republic National Insurance

Samuel P. Reef
Law Offices of Samuel P. Reef
144 Main Street
Brockton, MA 02301
508-559-0300
508-587-7305 (fax)
Assigned: 07/31/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing 1. Cert#: 7008 1140 0001 0014 6993
Status: Delivered

Your item was delivered at 5:12 PM on September 22, 2008 in BROCKTON, MA 02301.


Samuel P. Reef

Alan H. Segal
Law Office of Alan H. Segal
220 Forbes Road
Suite 301
Braintree, MA 02184
617-848-6272
Assigned: 11/03/2006
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing
1.Cert#:7008 1140 0001 0014 7006
Status: Delivered
Your item was delivered at 1:16 PM on September 22, 2008 in NEEDHAM HEIGHTS, MA 02494.

Alen H. Segal

Officers and Head of Legal Department
Commonwealth Land Title Ins. Co.
PO Box 908
Manchester, NH 03105 ®
CERT#: 7008 0150 0000 4562 1166 Unites States Bankruptcy Court
District of Delaware, Clerk’s Office
824 N. Market Street
Wilmington, DE 19801
CERT#: 7008 0150 0000 4562 1197

Officers and Head of Legal Department
Standard and Poor’s
55 Water Street
New York, New York 10041
CERT#:7008 1140 0001 0014 7150
Status: Delivered
Your item was delivered at 9:20 AM on September 22, 2008 in NEW YORK, NY 10274.
Officers and Head of Legal Department
Allied Home Mortgage Capital Corp.
401 Edgewater Place
Wakefield, MA ® Officers®
CERT#: 7008 0150 0000 4562 1173

Officers and Head of Legal Department
Real Time Solutions, Inc.
1750 Regal Row, Suite 120
Dallas, TX 75235
CERT#:7008 1140 0001 0014 7167
Status: Delivered
Your item was delivered at 9:38 AM on September 22, 2008 in DALLAS, TX 75235.

Officers and Head of Legal Department
Danversbank
One Conant Street
Danvers, MA 01923
978-777-2200
CERT#:7008 1140 0001 0014 7013
Status: Delivered
Your item was delivered at 8:32 AM on September 22, 2008 in DANVERS, MA 01923.

Officers and Head of Legal Department
Deutsche Bank National Trust Company OR Chase Home Finance
10790 Rancho Bemado Rd
San Diego, CA 92127
800-548-7912 ®
CERT#: 7008 0150 0000 4562 1180

Officers and Head of Legal Department
Deutsche Bank Securities
U.S. Headquarters
60 Wall Street
New York, NY 10005
CERT#:7008 1140 0001 0014 7020
Status: Delivered
Your item was delivered at 12:03 PM on September 22, 2008 in NEW YORK, NY 10268.

Officers and Head of Legal Department
KPMG LLP (“KPMG”)
345 Park Ave
New York, NY 10022
CERT#:7008 1140 0001 0014 7051
Status: Delivered
Your item was delivered at 2:05 PM on September 22, 2008 in NEW YORK, NY 10154.
Officers and Head of Legal Department
Ameriquest Mortgage Company
1100 Town & Country Road
Orange, CA 92868
CERT#:7008 1140 0001 0014 7037
Status: Delivered
Your item was delivered at 12:55 PM on September 19, 2008 in ORANGE, CA 92868.

Officers and Head of Legal Department
Old Republic National Insurance
400 Second Avenue South
Minneapolis, MN 55401-2499
(800) 328-4441
CERT#:7008 1140 0001 0014 7181
Status: Delivered
Your item was delivered at 9:06 AM on September 22, 2008 in MINNEAPOLIS, MN 55401.
Officers and Head of Legal Department
Beacon Appraisal
396 W. Broadway
Boston, MA 02127
617-269-1210
CERT#: 7008 1140 0001 0014 7044
Status: Delivered
Your item was delivered at 11:55 AM on September 20, 2008 in BOSTON, MA 02127.

Samuel P. Reef
(Closing Attorney 2nd Refi)
4 Main Street
Brockton, MA 02301
508-559-0300

Officers and Head of Legal Department
Chase Home Finance
4915 Independence Parkway, 2nd FL, Legal Dept.
Tampa, FL 33634 ®
CERT#:7008 1140 0001 0014 7174
Status: Delivered
Your item was delivered at 10:38 AM on September 19, 2008 in SAN DIEGO, CA 92128.


CERTIFICATE OF SERVICE

I hereby certify that a true copy of this Emergency Motion was mailed to the parties and attorneys above.

Pierre R. Augustin, Pro Se, 3941 Persimmon Drive, #102
Fairfax, VA 22031, Tel: 617-202-8069

VERIFICATION
I, Pierre R. Augustin, hereby depose and state as follows:

1. I am Pierre R. Augustin, represented by self.

2. I have read the foregoing Motion filed herein and knowing the contents thereof have found that the allegations of fact set forth therein are true of my own personal knowledge, except as to those allegations based on information and belief which I believe to be true.
Signed under the penalties of perjury this ________day of ____________2008.

X ________________________________

STATE OF ________________________COUNTY OF _____________________________

On this _____ day of __________, 2008, before me, the undersigned notary

public, personally appeared ___________________________, proved to me

through satisfactory evidence of identification, which was __________________________________________________, to be the person whose name is

signed on the preceding or attached document, and acknowledged to me that s/he signed it

voluntarily for its stated purpose.

______________________________
Notary Public
My Commission Expires:
(SEAL)


UNITED STATES BANKRUPTCY COURT OF DELAWARE

Pierre Richard Augustin, PRO SE )
Consumer Creditor and Party In Interest )
)
v. ) 07-10416-KJC
)
New Century Mortgage Corporation Et Al, )
Debtors. )

AFFIDAVIT / AFFIRMATION

I, Pierre-Richard Augustin, affirm the following under penalty of perjury, being duly sworn, deposes and says:
1) I am the Consumer Creditor and a Party In Interest in this action, and I respectfully submit this affidavit/affirmation.

2) I have personal knowledge of facts which bear on this Motion.

I declare under penalty of perjury that the foregoing is true and correct, except as to those allegations based on information and belief which I believe to be true.
Dated:_______________________________________________________
Pierre-Richard Augustin, Pro Se, Consumer Creditor and a Party In Interest
3941 Persimmon Drive, #102, Fairfax, VA 22031 (617) 202-8069

STATE OF _______________________________COUNTY OF_________________________
On this _____ day of __________, 2008, before me, the undersigned notary public, personally appeared ___________________________, proved to me through satisfactory evidence of identification, which was _________________________________________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that s/he signed it voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
(SEAL)

--------------------------------------------
I can be reached for a FREE consultation at (cell) 617-202-8069 or (703) 584-5998,



it's FREE, there is no obligation whatsover...! Sincerely, Pierre R. Augustin, MPA, MBA

P.S. - What 3 friends do you know who would benefit from FREE Expert Loan Advice...!
1. Call and Speak with a Consultant, 1-617-202-8069 or (703) 584-5998, it's FREE!