Free Proposed Findings of Fact and Conclusions of Law - District Court of Connecticut - Connecticut

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UNITED STATES COURT DISTRICT OF CONNECTICUT

INDYMAC BANK, F.S.B. Plaintiff v. DATE: June 16, 2005 MOSTAFA REYAD AND WAFA REYAD Defendant

DEFENDANTS PROPOSED FINDINGS OF FACTS AND CONCLUSION OF LAW

Defendants Mostafa Reyad [hereafter Defendant] and Wafa Reyad [hereafter Co Defendant] respectfully submit the instant proposed findings of fact and conclusion of law. Defendant filed on October 20, 2004 with the Second Circuit Court of Appeals for a writ of mandamus and served all parties, and filed on October 21, 2004 a motion to stay pending mandamus (Doc # 434); pending before this Court. The Second Circuit denied Defendant s mandamus and issued its Mandate on March 9, 2005. Defendant s filed on March 16, 2005 his motion with the Circuit to stay the mandate pursuant to FRAP 41(2)(A) pending filing with the Supreme Court of the United States. Defendant s Petition for Mandamus was filed on April 6, 2005 and docketed on April 21, 2005. Todate no orders issued from the Supreme Court. Thus, From October 20, 2004 to the present date, Defendants believe that it is improper to file proposed findings of facts and

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conclusions of law for the same issues which are subject to the Appeal in the Second Circuit and in the Supreme Court.

On April 21, 2005, Honorable Droney, U.S.D.J. Granted Defendant s motion doc # 437 to extend the time to retroactive date, as of 12/21/04 to file proposed findings of fact and conclusion of law (Doc # 454). Defendants became confused and now filing the instant proposed and conclusion, despite the facts that the jurisdiction now rests with the Supreme Court, however, Plaintiff filed on December 21, 2004 his post-trial memorandum (Doc # 441) and at p. 1 reserved his right to supplement his memorandum, Defendants have no objection and Plaintiff can file his supplement, in the due time. SECOND CIRCUIT LAWS BARRS ENTIRE ACTION It is impossible to believe that the same Court and the same Judge who ordered that California law is the substantive law governs this action. It is the same Court s orders which garnished Defendants assets in the amount of $ 12.8 million, and did not leave a single dollar to Defendants to meet their normal life obligations. It is the same Judge who issued prejudgment remedy on April 30, 2004 calculating attorney s fees in this District, District of New Jersey and the Third Circuit Court of Appeals, and calculating more than $ 500,000 in predisposition of punitive damages pursuant to Connecticut CUTPA. And it is the same Court and the same Judge who reviewed the original and the amended complaints when it were filed. Now, the same Court and the same Judge, pursuant to the Federal Common law and pursuant to the Second Circuit laws

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must dismiss Plaintiff s entire complaint, and to award Defendants all their actual damages, and award Defendants punitive damages for Plaintiff s nuclear malicious prosecution.

Judge Droney ordered on August 10, 2001, that this contract dispute is governed by California law. Simple reading to all Plaintiff s filing before August 10, 2001 and after that date reveals that Plaintiff framed the entire claims based on Connecticut Unfair Trade Practices Act CUTPA . Plaintiff did not offer any basis or relation to or even pled any of California law, and rested one hundred percent on CUTPA , see Plaintiff s Amended Complaint dated September 7, 2001 (Doc # 165), and all its 9 pages. The only provision of law stated by Plaintiff in the 9 pages of the amended complaint is C.G.S. Sec 42-110 a et seq affirming that the entire complaint is based only on the legal ground of CUTPA provisions, by the simple application of FRCP, Rule 12(b)(6); Plaintiff fails to state a claim upon which relief can be granted, and the entire complaint must be dismissed as a matter of law. See Valley Juice Ltd., Inc. v. Evian Waters of france, docket numbers 94-7813, 7817 and 95-7709 (2nd Cir. 1996) D. Massachusetts Unfair Trade Practices Act Valley also brings a claim under MUTPA. See Mass. Gen. L. ch. 93A, Section 1 et seq. The district court directed a verdict against Valley on this claim, following the authority of Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F. 2d 607 (1st Cir. 1993), and Worldwide Commodities, Inc. v. J. Amicone Co., 630 N.E.2d 615, 36 Mass. App. Ct. 304 (1994). In Northeast Data, the court reasoned that, with respect to MUTPA claims that are in essence reframed contract claims, a contractual choice of law clause specifying that the rights and obligations of the parties. . . shall be governed by and construed in accordance with the laws of California, would apply to MUTPA claims as well as ordinary contract claims. Northeast Data, 986 F. 2d at 609. Since California had

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no statute that paralleled MUTPA, the Northeast Data court affirmed dismissal of the claims. Id. at 611. The district court ruled that this was a parallel case, and directed verdict against Valley - - finding that since the valid written agreement provides that New York law shall apply, a claim based on Massachusetts law is barred . . . .

Similarly, the instant action based on California law. Defendant has filed in pretrial stage at least 12 motions citing California law and its precedents, and included several defenses pursuant to California law, and Plaintiff never respond to any, it means that Plaintiff insisting upon his complaint pursuant to Connecticut law of CUTPA. Judgment for Defendants favor should be issued.

PLAINTIFF S AMENDED COMPLAINT IS NOT ACTIONABLE Plaintiff s Post-Trial memorandum stipulated facts p. 3-6 may be frustrating, however, Plaintiff is unethically attempts to implement that he did not read or he does not understand the Joint Trial Memorandum dated November 18, 2003 Article B . Indeed, Defendant admitted in the Court that he signed the stipulation of fact and law, Article number 5. Defendant affirms that he signed that stipulation only to the extend explained thoroughly in Article B p. 3-43, of the Joint Trial Memorandum, Article number 5 and Article number 4 section B are supporting and complementing each other. Thus Defendant signed Article 5 as explained in section B , affirming the validity and the authenticity of the documents assuring that this action is not actionable. It should be noted that Plaintiff did not respond to any legal issues raised in Defendants Trial Memorandum, not to certain issues raised repeatedly, specifically related to standing which intern relevant to subject matter jurisdiction pursuant to the

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Second Circuit precendents and the applicable provisions of California law which govern the choice of law of this action ordered by this Court.

PLAINTIFF CANNOT MAINTAIN ANY ACTION PURSUANT TO CALIFORNIA CORPORATIONS CODE SECTION 2203 (c), AND SECTION 2105 (a) AND (b)

Plaintiff is a criminal corporation violates the laws, Plaintiff entered into agreements using corporate names different from its certificate of qualification issued by California Secretary of State, and transacted business without that certificate, and as a matter of law cannot maintain any action or proceeding pursuant to Cal. Corp. C. section 2203 (c). California Corporation Code 2203 (c) A foreign corporation subject to the provisions of Chapter 21 (commencing with Section 2100) which transacts intrastate business without complying with Section 2105 shall not maintain any action or proceeding upon any intrastate business so transacted in any court of this state, commenced prior to compliance with Section 2105, until it has complied with the provisions thereof and has paid to the Secretary of State a penalty of two hundred fifty dollars ($250) in addition to the fees due for filing the statement and designation required by Section 2105 and has filed with the clerk of the court in which the action is pending receipts showing the payment of the fees and penalty and all franchise taxes and any other taxes on business or property in this state that should have been paid for the period during which it transacted intrastate business.

The records of this Court; Defendant s Exhibit # 14 show that all IndyMac corporations are Delaware corporations having the principal place of business in California; all are foreign corporations for the State of California, and are subject to the provisions of Cal. Corp. C. Chapter 21 (section 2100-2117), and all are transacting intrastate business. See section 2105. California Corporation Code 2105 (a), it stipulates in part.

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A foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certificate of qualification.

California Corporations Code 2105 (b) Annexed to that statement and designation shall be a certificate by an authorized public official of the state or place of incorporation of the corporation to the effect that such corporation is an existing corporation in good standing in that state or place or, in the case of an association, and officers certificate stating that it is a validly organized and existing business association under the laws of a specified foreign jurisdiction.

Chapter 21 forbid foreign corporations to maintain any action without obtaining first from California Secretary of State a certificate of qualification stating its name, and the state or place of its incorporation or organization. The section allows foreign corporations to register its corporate name, by filing an application, and a certificate by an authorized public official of the state or place in which it is organized [in this action, the authorized public official should be the Department of corporation of the State of Delaware], stating that such corporation is in good standing under those laws, and such registration shall be effective until the close of the calendar year in which the application for registration was filed. It is undisputedly that Plaintiff transacted business with Defendant for the first time on December 6, 1996, and the records show that WLCA ceased to exist October 5, 1994 there was no registration, and there was no certificate of qualification mandated by section 2105, and WLCA is a nonqualified foreign corporation cannot maintain any action for any contract, it entered to after October 5, 1994, see, United Medicial Management Ltd. v. Gatto (1996) 49 Cal. App. 4th 1732 [57 Cal. Rptr. 2d 600], (Once a nonqualified foreign corporation commences an

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action regarding intrastate business, the defendant may assert by demurer or as an affirmative defense in the answer the Lack of Capacity to maintain an action arising out of intrastate business) Id. 1740; Timberline, Inc. v. Jaisinghani (1997) 54 Cal. App. 4th 1361 [64 Cal Rptr. 2d4]. Accordingly, WLCA cannot maintain any action for any contract, it entered into after it ceased to exist pursuant to the law; see 8 Del. C. sections 259 (a); pursuant to the above authorities, all these contracts are illegal and cannot be assigned to any other entity, because of its illegality, and see 8 Del. C. 278, it cannot sue or be sued. The law leaves all parties to an illegal agreement where it finds them and gives no relief. See, Second Circuit Ruling in Celardo v. Preferred Choice MGT, docket No. 02-7209 decided January 27, 2003 (while Celardo would have us hold that illegal means criminal , this interpretation contravenes the plain, common-sense meaning of illegal . The Dictionary definition of illegal is contrary to or violating a law or rule or regulation having the force of the law). Id. ; Kaiser Steel v. Mullins 455 U.S. 72, 77; it Ruled The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way toward carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it Id.; NLRB v. Local 46, case No. 97-4021 (2nd Cir) it Ruled in such cases the aid of the court is denied, not for the benefit of the defendant, but because public policy demands that it should be denied without regard to the interests of individual parties . Id. See Golden v. Bellevue civil action No. 304-04-1985, Court of Common Pleas of Delaware, New Castle, it

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Ruled Unlike the Delaware Corporation law, which provides that unchartered or defectively chartered domestic corporations and unregistered foreign corporations may not have access to the Delaware Courts . Id. Thus WLCA has no access to Delaware courts, and consequently has no access to any court. See also CM Record Corp. v. MCA Records, Inc. (1985) 168 Cal. App. 3d 965, 968 [214 Cal. Rptr. 409] No corporation shall maintain an action . . . . for the enforcement of a contract, made . . . . . after the forfeiture of its certificate; Id.; Cappiello, Hoffman & Katz v. Boyle 2001, Cal. App. 4th No. A089477 (Only lawful enterprises are entitled to the protection of the courts when wrongfully disrupted). Id. Plaintiff cited in their opposition to summary judgment (Doc # 288) three (3) precedents 1) Texaco Ref. & Marketing, Inc. v. Delaware River Basin Comm n, 824 F. Supp. 500, 507 (D Del. 1993), Argenbright v. Phoenix Finance, 21 Del. Ch 288, 292 (1936), and Heit v. Tenneco Inc. 319 F. Supp. 884, 887 (D Del. 1970), all the three (3) cases are misplaced, all these cases are for legal transactions while corporations were in good standing before merger or consolidation. This action is different; WLCA transacted contrary to the law while it had no charter or power to enter into contracts. Accordingly, WLCA lacks capacity to sue and Plaintiff lacks standing, and consequently, this Court lacks subject matter jurisdication.

See, also Victor Rayhall v. Akin Company, Inc. et al, Conn. Supreme Court (SC 16685); April 29, 2003.

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An appellant, like the plaintiff her, still must, however, satisfy other prerequisites to jurisdiction, such as the final judgment rule; Cantoni v. Xerox Corp., 251 Conn. 153, 160, 740 A. 2d 796 (1999); standing; Connecticut Business & Industries Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729-30, 573 A.2d 736 (1990); exhaustion of administrative remedies; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 563, 630 A. 2d 1304 (1993); and ripeness. Waterbury v. Washington, 260 Conn. 506, 543, 800 A.2d 1102 (2002); cf. Sasso v. RAM Property Management, 431 So. 2d 204, 208 (Fla. App. 1983) (court has jurisdiction to consider appeal raising constitutional challenge to statute despite administrative agency s lack of jurisdiction over issue; court lacks jurisdiction if appellant lacks standing or controversy not ripe), aff d 452 So. 2d 932, appeal dismissed, 469 U.S. 1030, 105 S. Ct. 498, 83 L. Ed. 2d 391 (1984). Simply put, Plaintiff lacks standing and the Court must dismiss Plaintiff s amended complaint; Lerner v. Fleet Bank, N.A. docket Number 01-7755 (January 22, 2003, 2nd Circuit). The Second Circuit remanded the case to the District Court for state-law claims. In the instant action, California law makes it clear that Plaintiff cannot maintain any action.

INDEPENDENT LENDIING CORPORATION D/B/A WLCA, AND INDYMAC MORTGAGE HOLDINGS, INC. D/B/A WLCA ARE ILLEGAL REGISTRATIONS PURSUANT TO CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 14415.

Cal. Bus. & Prof. Code section 14415
The filing of articles of incorporation pursuant to Section 200 of the Corporations Code, in the case of a domestic corporation, or the obtaining of a certificate of qualification pursuant to Section 2105 and 2106 of the Corporation Code, in the case of a foreign corporation, shall establish a rebuttable presumption that the corporation has the exclusive right to use a trade name, in the state the corporate name set forth in the articles or certificate, as well as any confusingly similar trade name, if the corporation is the first to have filed the articles or obtained the certificate containing the corporate name, and is actually engaged in a trade or business utilizing that corporate name or a confusingly similar name. If a foreign corporation continues to have authority to transact intrastate business pursuant to Section 2102 of the Corporations Code, the foreign corporation shall be considered to have obtained its certificate of qualification pursuant to law for

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the purposes of this section on the date it first qualified to transact intrastate business in this state. The rebuttable presumption created by this section affects the burden of producing evidence. And more specifically see Cal. Corp. C. Section 2106 (b)(2); stipulates in Part: the foreign corporation agrees that it will transact business in this state under an assumed name disclosed to the Secretary of State and that assumed name in all of its dealings with the Secretary of State and in the conduct of its affairs in this State The illegality of a corporation by entering into contract while it has no charter, no corporate power, and no certificate of qualification cannot be curred by any other mean. The illegal contract cannot be claimed as a legal document in case of future merger or future consolidation as Plaintiff trying to consider. It is unenforceable, null and void. Merger or consolidation will not change its illegality status, and does not survive a defunct corporation.

Courts records, and the records of the State of Delaware do not show, a dual corporate name for Independent Lending Corporation or IndyMac Mortgage Holdings, Inc. Neither corporation has or had doing business name in its certificate. The name of Independent Lending Corporation doing business as WLCA, and the name of IndyMac Mortgage Holdings, Inc. doing business as WLCA, are fraudulent names, the names are contrary to California law and Delaware law. Plaintiff admits that Independent Lending Corporation as well as IndyMac Mortgage Holdings Inc. did transact business under the trade name WLCA, at the time it filed the instant action, and Plaintiff filed a declaration affirming that statement, is a declaration that Plaintiff admits corporate crimes.

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See Cal. Bus. & Prof. C. Division 6 Chapter 3 Trade names and designations (Section 14401-14418). Section 14411 allows filing any fictitious business name pursuant to section 17910 will establish a rebuttable presumption that the registrant has the exclusive right to use as a trade name the fictitious business name, and section 14415 explains the rebuttable presumption; the obtaining of a certificate of qualification pursuant to section 2105 and 2106 of the Corporations Code, in the case of foreign corporation will establish the rebuttable presumption that the corporation has the exclusive right to use a trade name in the state the corporate name set forth in the articles or certificate, as well as any confusingly similar trade name, and the foreign corporation shall be considered to have obtained its certificate of qualification pursuant to the law. The rebuttable presumption created by this section affects the burden of producing evidence; however, the records show different material evidence indicating fraud upon registrations authorities, in California, Delaware and Connecticut.

Court s records show that Plaintiff acted contrary to the law and abused the rebuttable presumption rule by filing two (2) certificates contrary to this rule. Plaintiff filed contrary to the law 1) fictitious business name of Independent Lending Corporation doing business as WLCA, and 2) fictitious business name of IndyMac Mortgage Holdings, Inc. doing business as WLCA, both are illegal. The filing of the fictitious business names also, are contrary to the law pursuant to Cal. Bus. & Prof. C. section 17910.5 (a), it forbid filing a name includes

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corporation unless that fictitious business named corporation is organized pursuant to the laws of California or some other jurisdiction. Thus, the names of the two (2) fictitious business names for Independent Lending Corporation doing business as WLCA and IndyMac Mortgage Holdings, Inc. doing business as WLCA, are illegal names, because there are no certificate of qualification issued from California Secretary of State having theses names, and pursuant to Cal. Corp. C. section 2203 (c), neither stated name can maintain any action, and all contracts including these names as stated above are illegal contracts unenforceable. Plaintiff provided a trade name registration in New Castle County, Delaware. Plaintiff registered a trade name in the place designated for partnerships and associations, which is a county recorder office; the place has nothing to do with corporations. A corporation is a state creature, not county or town creature, and that illegal registrations collectively does not change the State records.

See, also Black s Law Dictionary for the definition of Corporate Entity , Corporate name , and Fictitious name .

Corporate entity. The distinct status of a corporation which sets its existence apart from the status of its shareholders; its capacity to have a name of its own, to sue and be sued in its own name as well as the right to buy, sell, lease and mortgage its property in its own name.

Corporate name. When a corporation is formed state statues require that such be given a name and such name is kept on record with the proper state authority (e.g. Secretary of State s office). Only by and under such name may the corporation sue or be sued and do all legal acts.

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Fictitious name. Name of unincorporated business. Statutes usually require owner to file certificate of fictitious name; e.g. Joe Smith (real name); Joe s Pizza Place (fictitious name).

The legal authorities demonstrated above render, that Neither Independent Lending Corporation, Nor Indymac Mortgage Holdings, Inc. has the authority to transact business under the fictitious business name or the trade name of WLCA. Accordingly, Plaintiff s entire complaint is defective, warrant complete dismissal, and Plaintiff is not entitled to discovery, and is not entitled to provide evidence without regard to the underlying factual merits. See Allen Dotson v. The Honorable Thomas P. Griesa, et al, No. 01-6248 (February 2, 2005 Second Circuit)

The first three points may be disposed of without discussion. First, a district court acts well within its discretion in deciding dispositive motions on the parties written submissions without oral argument. See generally AD/SAT v. Associated Press, 181 F. 3d. 216, 226 (2nd Cir. 1999). Second, a plaintiff is not entitled to discovery if his pleadings are fatally and incurably defective as a matter of law. See, e.g., M.B. # 11072-054 v. Reish, 119 F. 3d 230, 232 (2d Cir. 1997) (per curiam); Flaherty v. Coughlin, 713 F. 2d 10, 13 (2d Cir. 1983). Third, contrary to Dotson s argument, the district court s ruling assumes the truth of all allegations pleaded in Dotson t complaint. In any event, where pleadings are legally defective, dismissal is warranted without regard to the factual merits of a plaintiff s underlying claim. See, e.g., Steel Co. v. Citizens for a Better Env t, 523 U.S. 83 (1998). Id. p. 3 of 49

DEFENDANTS DUE PROCESS HAVE BEEN VIOLATED Although this action is not actionable, it charcherized by deprivation of Constitutional rights granted by the Eighth and Fourteenth Amendments.

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These depriviations invalidate any judgment; order; or proceeding as a matter of law.

THE EIGHTH AMENDMENT VIOLATIONS

It is fact evinces by documents provided to this Court, that, Defendant and Co-Defendant severally and collectively are under seize for a period of more than five years for every dollar they claim. The documents read the total of eighteen and half million dollar ($ 18.5 million) in garnishments against Defendants, while Plaintiff claiming falsely $ 243,849.78 in actual damages. Simple calculation reveal that this District and New Jersey District garnishment orders for the same cause of action, are equal to a little more than seventy-five (75) times of plaintiff s false unactionable claims, and even if it actionable claims, is still grossly excessive, and therefore unconsistutional.

See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., No. 992035, U. S. Supreme Court May 14, 2001. The Court has enforces those limits in cases involving deprivation of life, Emmund v. Florida 458 U.S. 782, 787, 801 (1982) (death is not a valid penalty under the Eighth and Fourtheen Amendments for one who neither took life, attempted to take life, nor intended to take life ); Coker v. Georgia, 433 U.S. 584, 592 (1977) (opinion of White, J.)(sentence of death is grossly disproportionate and excessive punishment for the crime of rape); deprivations of liberty, Solem v. Helm, 463 U.S., at 279, 303 (life imprisonment without a possibility of parole for nonviolent felonies is significantly disproportionate ); and deprivations of property, United States v. Bajakajian, 524 U.S. 321, 324 (1998)(punitive forfeiture of $

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357,144 for violating reporting requirement was grossly disporporational to the gravity of the offense); Gore, 517 U.S., At 585-586 ($ 2 million punitive damages award for failing to advise customers of minor predelivery repairs to new automobiles was grossly excessive and therefore unconstitutional). Id. page 5 of 14. Plaintiff who lacks capacity to sue pursuant to California law; Cal. Corp. C. Sec. 2203 (c) falsely claiming $ 243,849.78, based on Connecticut CUTPA, and never cites a single provision of California law is precluded to invoke California law after the expiration of the California Statute of limitation of contract claims, in other words Plaintiff is precluded to amend his complaint by citation of Cal. Civ. C. Sec 3300. Plaintiff s post-trial memorandum p. 23. Nevertheless, Plaintiff s attorney sanctionably citing the provision and deleting except where otherwise expressly provided by this Code , see Cal. Civ. C. Sec. 3301; it stipulates. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.

The section is making it clear, that, in a dispute of breach of contract like the unactionable allegations of Plaintiff in this action, a plaintiff would not recover any damages unless he provides ascertainable evidence. Plaintiff provides at Trial Plaintiff s Exhibit 40A is not an ascertainable evidence. Plaintiff was successful to acknowledge certain exhibits for only 10 loans out of the 33 loans, and Defendant was successful to acknowledge exhibits obtained from Plaintiff s premarked exhibits obtained from Plaintiff s premaked exhibits for 3 loans out of the 10 loans acknowledged for Plaintiff. The end result, Plaintiff owes Defendant $ 23,176.94 as per

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Plaintiff s exhibits alone. That same Plaintiff destroyed Defendant, CoDefendant and their children by the devastated nuclear attachments and garnishment for a period exceeding five years.

THE FOURTEENTH AMENDMENT VIOLATIONS It is undisputed fact that Defendant suffered actual damages in the amount of fifteen million dollar caused by closing his business for the past five years when his business bank account was garnished. The Court had been provided by documents evincing that Honorable William I. Garfinkel, U.S.M.J., issued eight garnishment orders in the total amount of $ 12.8 million. These eight orders undisputedly issued not only without notice to Defendants, but also without the knowledge of the United States. Surprisingly, Defendants appear in Court at all times, and more surprisingly that there is no records in the Court of these eight orders. Shuckingly, the District Judge knows nothing about it for a period of four years, and when he became aware about it, he denied reviewing it, that denial is another depreviation of equal protection of law granted by the Fourteenth Amendment, Section 1., see Peralta v. Heights Medicial Center, Inc. 485 U.S. 80, 84-85 (1988)

In opposition to summary judgment, appellant denied that he had been personally served and that he had notice of the judgment. The case proceeded through the Texas courts on that basis, and it is not denied by appellee that under our cases, a judgment entered without notice or service is constitutional infirm. An elementary and fundamental requirement of due process in any proceeding which is to be accorded

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finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objection. Mullan v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Failure to give notice violates the most rudimentary demands of due process of law. Armstrong v. Manzo, 380 U.S. 545, 550 (1965). See also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Pennoyer v. Neff, 95 U.S. 714, 733 (1878). Id.

In addition to the above deprivation of the Constitutional rights of the Eighth and Fourteenth Amendments, the prejudgment remedy applied in this action for a contract dispute is contrary to the Supreme Court decitions in its long history.

see De Beers Consol. Mines v. United States, 325 U.S. 212,222,223 (1945) And, if so, it is difficult to see why a plaintiff in any action for a personal judgment in tort or contract may not, also, apply to the chancellor for a socalled injunction sequestrating his opponent s assets pending recovery and satisfaction of a judgment in such a law action. No relief of this character has been thought justified in the long history of equity jurisprudence. Id.

See, also Grupo Mexicano De Desarrollo, S.A. v. Alliance Bond Fund, 527 U.S. 308 (1999); n6 and n7. As we stated in Adler v. Fenton, 65 U.S. 407, 24 HOW 407, 411, 412, 16 L. Ed. 696 (1891). Our laws determine with accuracy the time and manner in which the property of a debtor ceases to be subject to his disposition, and become subject to the rights of his creditor. A creditor acquires a lien upon the lands of his debtor by a judgment; and upon personal goods of the debtor, by the delivery of an execution to the sheriff. It is only by these liens that a creditor has any vested or specific right in the property of his debtor. Before these liens are acquired, the debtor has full dominion over his property; he may convert one species of property into another, and he may alienate to a purchaser Id. n6.

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Several States have adopted the Uniform Fraudulent Conveyance Act (or its successor the Uniform Fraudulent Transfer Act), which has been interpreted as conferring on a nonjudgment creditor the right to bring a fraudulent conveyance claim. See generally P. Alces, Law of Fraudulent Transactions P5.04[3], p. 5-116 (1989). Insofar as Rule 18 (b) applies to such an action, the state statute eliminating the need for a judgment may have altered the common-law rule that a general creditor has no interest in his debtor s property. Id. n7.

Since day one of this action, May 8, 2000, Defendants due process have been violated. Indeed, it is a severe damageable violations, ended up by an actual damages to Defendant in the amount approximately fifteen million dollar, and actual damages to Co-Defendant in an amount approximately one million dollar, and extended by unfair trial to damage Defendants daughter who is unable to sell her owned real estate property, which was purchased and owned by her.

This is United States Court obligated to adhere to Federal Rules promulgated by the Supreme Court; La Buy v. Howes Leather Co., 352 U.S. 249 (1957) (The Court of Appeals issued writs of mandamus requiring petitioner to vacate his orders of reference. Held: The Court of Appeals properly issued the writs of mandamus. Pp. 250-260). The Supreme Court affirmed mandamus is warranted where it was necessary to confine a lower court to an appellate tribunal s mandate, and where a district judge displayed a persistent disregard to the Rules of Civil procedure.

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Defendant applied to the Second Circuit Court of Appeals for a mandamus, the Circuit denied review, however, the denial is not adjudication on the merits. This action shows injustice departure of Federal Rules cannot be justified under any set of facts or law. 1) On May 9, 2000 Honorable Droney, U.S.D.J. Ordered The defendants

are ORDERED to restrain from transferring or otherwise disposing of their property out of the ordinary course of business pending said hearing Id. p. 1 (Doc # 11). The order is contrary to FRCP 65(c), the order issued without ordering Plaintiff to post a bond or some type of security denies due process. The Court s Order relied on C.G.Stat Sec. 53-278(c), that provision of Connecticut Law specifically per se pronounced by the Supreme Court as unconstitutional, if it applied without posting a bond see Connecticut v. Doehr, 501 U.S.1 (1991). He doubted that the judge could reliably determine probable cause when presented with only the plaintiff s version of the altercation. Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process 898 F. 2d, at 856. Judge Pratt went on to conclude that, in his view, the statute was also constitutionally infirm for its failure to require the plaintiff to post a bond for the protection of the defendant in the event the attachment was ultimately found to have been improvident. 2) On May 10, 2000, the District Judge Ordered (Doc # 12) referring Plaintiff s motion for prejudgment remedy; Doc # 6 and Plaintiff s motion for disclosure of Property; Doc # 5 to Magistrate William I. Garfinkel, U.S.M.J., that order is contrary to 28 U.S.C. 636 (b)(1)(A), because the last two motions are injunctive relief, not in the province of the Magistrate jurisdiction, therefore, any order issued is a nullity; Reynaga v. Cammisa,

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case number 91-15468 (9th Cir 1992), and see its comment citing Taylor v. Oxford, 575 F. 2d 152, 154 (7th Cir 1978). Accordingly, the Court s order (Doc # 12) is a reversible error, and any ruling related to must be vacated as a matter of law. 3) On May 16, 2000, pursuant to the Court s Order Doc # 12, hearing was held before the Magistrate, immediately after the parties declared their appearance, and before any statement of either party. The Magistrate pronounced his predisposition against Defendants; see the transcript dated May 16, 2000, p. 3 line 10.

The Court: Yes, Ms. Borger affidavit. And it is clear from that affidavit that some sort of PJR is warranted. I don t think there s really any question about it.

The Magistrate statement is a strong reflect of deep-seated favoritism to Plaintiff, and antagonism against Defendants. It reflects a predisposition; readiness; and willingness to rubber stamp whatever demands may be suggested by Plaintiff, see United States v. John Doe, docket number 02-1362 (2nd Cir. October 19, 2003).

The record there reflected willingness to rubber stamp any suggestion made by the United States Attorney_an act inconsistence with the exercise of an informed discretion. Id. p. 2 line 19.

4) On May 17, 2000 the Magistrate issued his memorandum of decision and very clearly permitting Defendant to conduct his business and to maintain

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business and personal bank accounts. The Presiding Judge did not indorse the Magistrate decision in any respect.

5) In the morning of May 18, 2000, contrary to the Magistrate order that Defendants are permitted to maintain business and business bank accounts, all bank accounts became garnished, and all Defendants checks returned back unpaid. Defendant had to close his business on the spot. Defendant called the law clerk of the Magistrate Chamber and received no comments. Todate, Defendant s actual damages caused by closing his business exceeds fifteen million dollar. Defendant filed numerous motions for relief, all motions denied without opinion.

Defendant searched the Court Records repeatedly, and did not find except the memorandum of decision of the Magistrate dated May 17, 2000. Although Defendant filed with the District Court requesting relief, he could not obtain the evidence of the nuclear orders of attachment and garnishment in the amount of $ 18.5 million. It is only on May 4, 2004, almost four (4) years after the issuance of the Magistrate order, Defendant obtained the evidence. On May 7, 2004 Defendant provided the Court with the evidence evincing that the Magistrate issued orders without the knowledge of the Court.

On May 17, 2000, the Magistrate violated the Code of United States Judges and engaged in unilateral communications with Plaintiff s attorney David R. Schaeffer.

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Mr. Schaeffer drafted on his own, on his computer eight (8) writs of garnishment including its memorandum and handed it to the Magistrate. The Magistrate executed it and handed it to Mr. Schaeffer, none was entered on the records, and Defendants was never notified. Mr. Schaeffer executed the garnishments promptly and effectuated closing Petitioner s business promptly. The nonauthorized orders are as follows:

1. Writ of Garnishment to the value of $ 1,600,000 to Fleet Bank dated May 16, 2000. 2. Writ of Garnishment to the value of $ 1,600,000 to Hudson United Bank dated May 16, 2000. 3. Writ of Garnishment to the value of $ 1,600,000 to Aetna Life Insurance Annuity Company dated May 16, 2000. 4. Writ of Garnishment to the value of $ 1,600,000 to New England Financial Annuities dated May 16, 2000. 5. Writ of Garnishment to the value of $ 1,600,000 to American Express Financial Advisors, Inc. d/b/a IDS, dated May 16, 2000. 6. Writ of Garnishment to the value of $ 1,600,000 to VALIC dated May 16, 2000. 7. Writ of Garnishment to the value of $ 1,600,000 to The Equitable a/k/a The Equitable Life Assurance of the United States dated May 16, 2000. 8. Writ of Garnishment to the value of $ 1,600,000 to IDS Life Insurance Company, dated June 6, 2000.

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The total of the non-authorized writs of garnishments is $ 12.8 million. Defendants fixed assets at the time of garnishment was not enough to absorb these huge amounts, that in addition to the ex parte order of New Jersey duplicate action for the same alleged cause of action. Defendant became seized in the total amount of $ 18.5 million. That is to say Plaintiff unlawfully seized every dollar Defendants had, and Defendant closed his business, by Plaintiff filing his complaints in the two (2) Districts, the effect of the orders issued was not only as an injunction, it had the same effect of a judgment. The attachments and garnishments issued against Defendant and his wife Wafa Reyad, extended to effectuate a lis pendence on the property purchased by and owned by his daughter Dina R. Abousabe. Todate the following attachments are in place.

1. The Defendants daughter real property Located at 1452-1454 River Road, Edgewater, NJ 2. The Defendant s wife own residence located at 2077 Center Ave # 22D, Fort Lee, NJ 3. The Defendant s insurance policy; Equitable 4. The Defendant s wife insurance policy; Equitable 5. The Defendant s insurance policy; IDS 6. The Defendant s wife 401k; VALIC 7. The Defendant s wife annuity; Equitable 8. The Defendant s wife annuity; Aetna

$ 1,200,000.00

$

500,000.00

$ $ $ $ $ $

170,000.00 165,000.00 1,000,000.00 72,000.00 124,000.00 76,000.00

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9. The Defendant s wife annuity; New England TOTAL

$

23,000.00

$ 3,395,000.00

Defendant s total losses as of November 2004, caused by the unlawful orders

i)

Defendant s business

$ $ $ $ $

10,000,000.00 2,925,000.00 150,000.00 2,000,000.00 15,075,000.00

ii) Defendant s loss of income iii) Defendant s Loss of investment iv) Defendant s Loss of Insurance coverage TOTAL

The actual damages caused by the first writ of garnishment which garnished Defendant s Fleet Bank account, which in effect closed his business. It is well known that no business can be conducted in the absence of bank account. Defendant was also deprived from any source of living provided that Plaintiff does not have any interest in any of the seized assets. All the above damages caused by the unauthorized writs of garnishment, executed without the knowledge of the United States, and without notification to neither Defendant. The writs of garnishments issued by the Magistrate and executed by Plaintiff s attorney, David R. Schaefer. The Magistrate violated the Code of United States Judges, and furtherly abused his power, and violated the duties of his Court, he must be disqualified, and all his orders must be vacated. Plaintiff s named

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attorney must be immediately disqualified and be punished for his crime for executing orders without the knowledge of the United States.

Defendant filed on September 7, 2004 with the District Court his motion to disqualify the Magistrate, on October 11, 2004. Judge Droney ordered referring the motion to the Magistrate. On February 1, 2005 the Magistrate denied the motion as moot and stipulates in that the undersigned is no longer involved with this case , indeed, the Magistrate is no longer with this case, but his unauthorized orders are still in effect, and its damages are running.

See, Michael Hathcock; Sandy Hathcock v. Novistar International (Case number 94-1021, 4th Cir.) at III Section 455 (a) of title 28 of United States Code provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably questioned . As we have previously explained, [t]he question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all the circumstances Aiken County v. BSP Div. OF Envirotech Corp., 866 F. 2d. 661, 679 (4th Cir. 1989) (quoting Rice v. Mckenzie), 581 F. 2d 1114, 1116, (4th Cir. 1978). On these facts, a reasonable person might justifiably doubt the district court judge s objectivity. . . . The Judge s ex parte contacts requesting the Hathcock s counsel to draft at least the factual basis of a default order, and possibly its legal conclusion as well, do not foster an impression of objectivity.

The Supreme Court Ruled vacating the orders issued by the disqualified judge, even after judgment has issued. See Liljeberg v. Health Acquision Corp. 486 U.S. 847, 848 (1988).

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2. Vacatur was a proper remedy for the 455 (a) violation in the circumstances of this case. In determining whether a 455(a) violation requires vacatur under Rule 60 (b)(6)- which gives federal courts broad authority to grant relief from a final judgment upon such terms as are just, provided that the motion is made within a reasonable time- it is appropriate to consider the risk of injustice of the particular parties, the risk of undermining the public s confidence in the judicial process. Id.

Judge Droney since August 2001 acted prejudicially against Defendant and favors Plaintiff, however, judicial decisions do not establish basis for recusal, unless the judicial decision is a predisposition that go beyond what is normal and acceptable. See, also Liteky 510 U.S. 540 (1994) at 548, commenting on 28 U.S.C. 455 (a) Subsection (a), the provision at issue here, was an entirely new catch all recusal provision covering both interest or relationship and bias or prejudice , see, Liljeberg v. Health Services Acquision Corp., 486 U.S. 847 (1988)- but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice, but its appearance. Quite simply and quite universally, recusal was required whenever impartiality might reasonably be questioned . Id.

Furtherly, see Liteky at 552

A similar plain Language argument could be made, however with regard to 144 and 455 (b)(1): they apply whenever bias or prejudice exists, and not merely when it derives from an extrajudicial source. As we have described, the latter is invalid, because the pejorative connotation of the terms bias and prejudice demands that they be applied only to judicial predisposition that go beyond what is normal and acceptable. Id.

On May 7, 2004 -Judge Droney was provided with the documents evincing that the total attachments against Defendant is $ 18.5 million, and Plaintiff alleged

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false claims is $ 243,849.78 as Plaintiff demanding it. It means that Plaintiff obtained seventy-five (75) times of his false claims in attachments and garnishments. This fact alone drives any reasonable person to conclude that Judge Droney s prejudice against Petitioner is clear. Furtherly, Judge Droney issued to the first time a prejudgment remedy against Petitioner in the amount of $ 1.1 million as follows: 1) Plaintiff claims of damages $ 243,849.78; 2) Plaintiff s attorney s fee $ 355,783.20 provided that these fees for Plaintiff in the District of Connecticut; District of New Jersey and the Third Circuit of Appeals; and 3) $ 500,367.02 as punitive damages. It is a predisposition to garnish Defendant for attorney s fee, and more clear predisposition to garnish Defendants before final judgment for alleged punitive damages. It is injustice precedent deteriorates the confidence of the Judicial System.

Judge Droney Denied Defendant s motion for recusal on February 25, 2005; Denied Defendant motion to reopen proceeding to allow Defendant to acknowledge the unauthorized eight (8) writs of garnishment issued unauthorizedly by the Magistrate, which caused Defendant actual damages in the amount of fifteen million dollar; and Denied Defendant s motion to correct the records. Simply put, Judge Droney Denied Defendant due process to defend himself, that Denial shows a deep-seated prejudice against Defendants, and shows antagonism. It is impossible to any reasonable person to believe that a fair trial can go through. Judge Droney must recuse himself and all his orders must be vacated.

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See, Liljeberg v. Health Services Acquision Corp. 486 U.S. 847, 848 (1988) A violation of 455 (a)- which requires a judge to disqualify himself in any proceeding in which his impartiality might be questioned- is established when a reasonable person, knowing the relevant facts, would expect that a judge know of circumstances creating an appearance of partiality, notwithstanding a finding that the judge was not actually conscious of those circumstances. To require scientor as an element of 455 (a) violation would contravene that section s language and its purpose of promoting public confidence in the integrity of the judicial system. Id. 848.

PREJUDGMENT ATTACHMENTS ARE UNLAWFUL

Indeed, it is unlawful for a court to issue prejudgment remedy based on speculations. It is more unlawful that this Court denied Defendant s request for Plaintiff to post a bond despite Defendant s citation of Mexicano, supra. It is injustice to include anticipated attorney s fees in a prejudgment remedy, and it is denial of due process for a court to disregard a prejudgment remedy issued by another federal court for the same cause of action and only calculate attorney s fees in favor of Plaintiff. This Court denied any defense for New Jersey action, and the unlawful lis pendence on Defendants daughter s property, and included anticipated attorney s fees in New Jersey District and Third Circuit Court of Appeals. It are denial of due process invalidate the entire action.

Plaintiff s falsely claims as presented to this Court is in the amount of $ 243,849.78, is a misleading statement, because it all stemming from a misleading calculations. It is improper for a litigant to intentionally present information in order to frustrate the Court, see Plaintiff s exhibit # 40A ; 5th

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column Accrued Interest ; and 8th column Interest received . According to Plaintiff s statement, none of the mortgage loans was in foreclosure, See, Tr. 4/6/04 p. 119 line 15-17

A That would pertain to the value of a property assuming it was in foreclosure which was not the case on any of these loans.

And see, Tr. 4/7/04 p. 149 line 10-19

MR. SCHAEFFER: Yes, your honor. I guess we re making argument with respect to the contents of the documents. If I could point out to the court that the estimated loss, this is within days of finding out about the widespread fraud, was estimated at 22 percent of the outstanding amount. This is where they didn t know if people were going to purchase. So they were looking at a worst case scenario what happens if we have to go to foreclosure with respect to these loans.

The transcript stipulations above is clearly indicates that the prejudgment remedy which devastated Defendants relied only on speculations of foreclosures which never happened, and no bases for any estimates. Despite the undisputable fact that Plaintiff unjudicially sold loans at discount, Plaintiff s false claims of losses; 13th column Loss , in the total of $ 322,553.37. Simply put, Plaintiff s claim Accrued interest received at Pay off is $ 381,916.84, provided that no loan was in foreclosure, is the evidence that Plaintiff is charging Defendant a differential interest in the amount of $ 267,108.40. Plaintiff initiated this action on a bad faith speculations, has no right for differential interest caused by Plaintiff s seizure on these mortgage loans and furtherly sold it in nonjudicial foreclosure without obtaining Court order to do so.

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PLAINTIFF S ACTION IS ESTOPPED BY CALIFORNIA ANTIDEFICIENCY LAWS Plaintiff s entire complaint is estopped by the application of California Antideficiency Laws. Mostafa Reyad before this action commenced and during this action, had no control on any of the 33 loans. Plaintiff sold all the loans on their own without Court order, Plaintiff exercised their power of nonjudicial foreclosure sale, as per para. 7 of the Credit Guaranty (Individual), and other provisions stipulated in the Credit Facility Documents. Plaintiff failed to file within the period of three (3) month mandated by Cal. C. Civ. Proc. 580 (a), an application for deficiency in this Court, and did not institute an action for deficiency in another court. Accordingly, Plaintiff waived their rights for any deficiency for any loan sold; also Plaintiff waived their rights for attorney s fee and any associated cost, as a matter of law. See, Cadle Co. II v. Harvey (2000) 83 Cal. App. 4th 927, 932, 933 [100 Cal. Rptr. 2d 150] ([1] Our analysis is controlled by well-established principles. The courts have repeatedly recognized that the antideficiency laws embodied in section 580 (a) through 580 (d) and 726 reflect a legislative policy that strictly limits the right to recover deficiency judgments for the amount the debt exceeds the value of security. Brown v. Jensen (1953) 41 Cal. 2d 193, 197 [259 P. 2d 425]. The debtor cannot be compelled to waive the antideficiency protections in advance Freedland v. Greco (1955) 45 Cal. 2d 462, 467-468 [289 P.2d 463];Civ. Code section 2953 because the antideficiency legislation was established for a public reason and cannot be contravened by a private agreement Valinda Builders, Inc. v. Bissner (1964) 230 Cal. App. 2d 106, 112 [40 Cal. Rptr. 735].) Id.

California Civil Code section 2953
Any express agreement made or entered into by a borrower at the time of or in connection with the making of or renewing of any loan secured by a deed or trust, mortgage or other instrument creating a lien on real property, whereby the

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borrower agrees to waive the rights, or privileges conferred upon him by Section 2924, 2924b, 2924c of the Civil Code or by Sections 580a or 726 of the Code of Civil procedure, shall be void and of no effect. The provisions of this section shall not apply to any deed of trust, mortgage or other liens given to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by Commissioner of Corporations, or are made by a public utility subject to the provisions of the Public Utilities Act. See also, Simon v. Superior Court (Bank of America, NT & SA) (1992) 4 Cal. App.4 63, 70 [5 Cal. Rptr. 2d 428] (Thus section 580a, enacted before section 580d, limits the amount of a deficiency judgment after the real property security has been sold at a nonjudicial sale to the lesser of either the excess of indebtedness over the fair market value of the property or the excess of the indebtedness over the sale price. The section also provided, at the time of the subject foreclosure, that any action to recover a deficiency must be brought within three months of the time of sale under such deed of trust or mortgage.);

Plaintiff is aware about California Antidefiency Laws before the action at the time they prepared the Credit Facility Documents, and contrary to the law, included in each Guaranty , a waiver executed by each Defendant, see Guaranty , p.2 para 7. Plaintiff abused the law during pretrial and attempt to obtain another waiver to be executed by Mostafa Reyad. Plaintiff s attorney David R. Schaefer submitted to Mostafa on or about August 20, 2000. AGREEMENT WITH RESPECT TO WAIVER OF ANTI-DEFICIENCY PROVISIONS OF THE UNIFORM COMMERCIAL CODE See, Defendant s Exhibit # 6. Defendant did not execute that waiver, However, p.2 para 2. Show that Plaintiff had received all collaterals before the action, and see, IndyMac letter dated June 16, 2000; Defendant exhibit # 7; the letter does no have any question or comment about the complete accurate collateral for the 33 mortgage loans, because Plaintiff received all the collaterals complete and accurate prior to the action.

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Without waiving any right or defense. Defendants are not liable for any deficiency for any loan out of the 33 mortgage loans securing WLCA s Credit Facility Documents. Defendants also are not liable for any attorneys fee consumed in prosecuting any mortgage loan sold, as well as any associated costs. It is undisputed fact that, Defendants granted without recourse Plaintiff first lien security interest in all the 33 mortgage loans, including the 33 notes, and other related documents, see, Plaintiff s Amended Complaint (Doc # 165) p. 4. para. 10-12. Thus Plaintiff has at all relevant times a blanket note, and 33 notes accompanied with 33 mortgage deeds as security. See, Black s Law Dictionary definition for mortgage ; A mortgage in an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt , and see, Cal. C. Civ. Proc. Subsection 580 (a), Whenever a money judgment is sought for the balance due upon obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as security .

Defendants Legal Authority of this defense is Cal. C. Civ. Proc. Section 580 (a), 580(d), 337 (1), and 726 (b). Plaintiff exercised their power of sale as stipulated in the credit facility documents, and sold 33 mortgage loans utilizing the private non-judicial foreclosure sale process. Accordingly, Pursuant to the said Legal Authority, Plaintiff have waived their rights for any deficiency for the sold mortgage loans, by not filing a motion in this Court, or filing application for deficiency in any other court within the stated three (3) month following the sale of each mortgage loan. See Citrus State Bank v. McKendrick (1989) 215 Cal. App. 3d 941, 949 [263 Cal. Rptr. 781]

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(However, the language of section 580 (a) could not be clearer. It states that any action for a deficiency judgment must be brought within three months , of the foreclosure sale. Given the mandate of section 580 (a), an action brought more than three months after the sale, as is the case here is subject to dismissal as untimely.); Florio v. Lau (1998) 68 Cal. App. 4th 637, 645 [80 Cal. Rptr. 2d 409] (For instance, creditors cannot obtain deficiency judgments for purchase money transactions or after nonjudicial foreclosure sale pursuant to a deed of trust. See Code Civ Proc. 580 b, 58 (d).); (Deficiency judgments generally are available after a judicial real property foreclosure sale, but with some restrictions. Under Code of Civil Procedure section 726, the judicial foreclosure statute, a deficiency judgment must be sought within three moths of foreclosure sale . . . .) Id. Life Savings Bank v. Wilhelm (2000) 84 Cal. App. 4th 174,177, [100 Cal. Rptr. 2d 657] (Section 726, subdivision (b) provides in part, that [1]n the event that a deficiency is not waived or prohibited and it decreed that any defendant is personally liable for the debt, then upon application of the Plaintiff filed at any time within three months . . . . ) Id.

The Guarantys as part of the credit facility documents, includes waiver of section 580 (d). See Credit Guaranty (Individual), executed by Defendants p.2. para 7 Guarantor waives all rights and defenses arising out of an election of remedies of Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed the Guarantor s rights of subrogation and reimbursement against the Borrower by the operation of Section 580 (d) of the California Code of Civil Procedure or otherwise .

Moreover, It is on August 15, 2000 at the hearing of this Court, at Bridgeport, Connecticut, Mostafa Reyad asked Plaintiff; Why You are garnishing my wallet and leave me with five million dollar?, Honorable Garfinkel directed Attorney

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Schaeffer to respond. He answered, and stated because of the antideficiency laws of California, if we recorded the loans, we cannot sue for it, see transcript of August 15, 2000. In any event Pursuant to section 726, Plaintiff is estopped to claim a personal guaranty for all sold mortgage loans, due to the elapse of the three (3) months limitations. Defendants have no liability for any loan sold, and have no liability for attorney s fee or any other cost consumed in prosecuting these sold loans.

PREJUDGMENT REMEDY ISSUED BASED ON PERJURED AFFIDAVIT The prejudgment remedy issued by this Court on May 16, 2000, and the attachment and garnishment orders issued by New Jersey District, were based in its entirety on the perjured affidavits of Brian E. Ainslie (Doc # 10) and Maria Borger (Doc # 8). Maria Borger s affidavit was in support of the Dismissed plaintiff; IndyMac, Inc., accordingly it is a non-permissible evidence. Practically, providing it to the Court as Plaintiff s marked exhibits, or citing it in support of Mr. Ainslie s affidavit are precluded by res judicata.

see, Tr. 4/6/04 P. 16 line 16-21 MR. SCHAEFFER: Well, your honor, what it is is what we preremarked as Plaintiff s Exhibit 39 in the exhibit book that Mr. Reyad has and the declaration of Maria Borger which was filed with the Court as an affidavit on May 8, 2000. So those are the two documents that he relied on in preparing that estimate. Thus, Plaintiff relies on Plaintiff s Exhibit 39 and Maria Borger s inadmissible evidence. Furtherly, Plaintiff did not offer his exhibit 39. Accordingly Plaintiff does not have any evidence to support the perjured affidavit of Mr. Ainslie. This

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affidavit is the only affidavit of the instant action, and this Court based its prejudgment remedy on its contents, the same as New Jersey District. This affidavit and the unlawful prejudgments in the total amount of $ 18.5 million caused Defendant to close his business, and costed him an actual damage in the amount approximately fifteen million dollar.

On May 8, 2000, Plaintiff initiated this action and filed, inter alia, Brian E. Ainslie s affidavit (Doc #10) [hereafter the affidavit ]. The affidavit p. 5 para. 13.

Based upon the review performed by IndyMac, IndyMac has determined that several of Reyad s employees prepared and submitted these falsified documents to IndyMac, 13. Furthermore, IndyMac has obtained preliminary property valuation information indicating that the properties securing the mortgage loans financed on Reyad s WLCA warehouse line are over-valued by an average of 22.27%.

The affidavit at p. 6 para. 15

WLCA estimates that it will lose at least 22.27% of the outstanding amount advanced to Reyad. Based on the information reviewed to date, WLCA s loss is at least $ 1,271,000, and WLCA believes there is probable cause to obtain a judgment against the Reyads for this amount.

Simply put, the affidavit established the probable cause, based on the over-value by an average of 22.27%, which according to Plaintiff in the amount $ 1,271,000. Mr. Ainslie multiplied the 22.27 % of the outstanding loan amount of $ 5.7 million to reach the amount of $ 1,271,000. Plaintiff could not support this perjured information, he testified under oath in his affidavit under penalty of perjury.

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Plaintiff s attorney defended Mr. Ainslie s affidavit, and repeated twice that he is not sure that the affidavit was on original papers.

See, Tr. 4/7/04 P. 150 line 1-6 And this is within _ _ I believe this affidavit was filed with the prejudgment _ _ the request to the court. And I m not sure, but was it on original papers? Part of Mr. Ainslie affidavit, but I m not sure.

It does not need a sienter to say that without this perjured affidavit, a prejudgment remedy would be ever issued, either in this Court or in the New Jersey District. This false information entitle Defendants to be awarded all their expenses including attorney s fees, and be awarded punitive damages.

See, FRCP, Rule 11 (b)(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

And see, Notes of Advisory Committee on 1983 amendments to Rule 11 The amended rule attempts to deal with the problem by building upon and expanding the equitable doctrine permitting the court to award expenses, including attorney s fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation, See, e.g. Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); Hall v. Cole, 412 U.S. 1, 5 (1973).

Plaintiff established the false probable cause and its amount, pursuant to FRCP, Rule 11 Defendants are entitled for the full amount of damages to Defendant in the amount of approximately fifteen million dollar, and Co-Defendant in the amount of one million dollar.

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It is impossible for this Court to reach a fair judgment by setting aside Defendant s motions related to this false affidavit, in fact Defendant raised this issues for more than three years and ruling upon it, is still pending. Plaintiff after he obtained the nuclear prejudgment remedy never respond to the issues of over-valued properties, and sold the 33 loans by its value and no over-valuation ever stated in anywhere.

Defendant at Trial, received fro