Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:00-cv-00835-CFD

Document 418

Filed 09/03/2004

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

INDYMAC BANK, F.S.B. Plaintiff CIVIL ACTION NO. 3:00CV835 (CFD)

V.

MOSTAFA REYAD AND WAFA REYAD Defendants DATE: SEPTEMBER 2, 2004

DEFENDANT MOSTAFA REYAD S MEMORANDUM PURSUANT TO 28 U.S.C. 455 This is the memorandum of law in support of Defendant Mostafa Reyad s motion pursuant to 28 U.S.C. 455. Section 455 (b)(3) stipulates:

Where he has served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

and see Section 455(e), it stipulates in part

No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).

1

Case 3:00-cv-00835-CFD

Document 418

Filed 09/03/2004

Page 2 of 4

Defendant affirms that it is impossible for him to predict that, the now Plaintiff has nothing except repeating the same merits and the same cause of action and allegations of the dismissed Plaintiff namely IndyMac, Inc. Aside from the contracts; Plaintiff s exhibits # 1-10; not even a single paper provided during the four (4) years age of this litigation; except from IndyMac, Inc., the dismissed Plaintiff. Accordingly the merits of this action had been priorly decided by Judge Droney on August 10, 2001; a final adjudication on the merits with prejudice and his Honor must recuse himself of this action.

In this memorandum, Defendant will show that the merits of the Dismissed Plaintiff namely IndyMac, Inc. and compare it to the merits of the now Plaintiff. The Court would determine from that comparison that it is the same merits. The now Plaintiff s merits is allegations of misrepresentation; falsified credit reports; verification of deposits; and verification of employment for thirty three mortgage loans, identified by loan numbers and names of the consumers in the Joint Trial Memorandum JTM.

On May 8, 2000 Plaintiffs IndyMac Mortgage Holdings, Inc. [ Holdings, Inc. ] and IndyMac, Inc. [ IMI ] filed together this action. The Holdings, Inc. supported its claim by the affidavit of Brian E. Ainslie, and IMI supported its claims by Maria Borger s affidavit. IndyMac, Inc. was dismissed on August 10, 2001 by the judgment of Honorable Droney.

2

Case 3:00-cv-00835-CFD

Document 418

Filed 09/03/2004

Page 3 of 4

See, the merits of the IndyMac, Inc. s dismissed action in Maria Borger s affidavit (Doc # 8), Maria Borger identified the loans by number, and did not identify the loans by name, however, Joint Trial Memorandum and the now Plaintiff s exhibits verified it by both loan number and name, p. 5 [(verification of deposit) forms in at least four loan files contained forged signatures (loan nos. 629522, 630890, 599162, and 645391)]. These four (4) loans are listed on JTM under the names, Flores, Kirby, Zuiewski, and Marlewski. Furtherly at p. 5 [the VOD forms in these and other loan files contain inaccurate account balances or invalid account numbers (Including loan nos. 600120, 655311, 649447, 648121, 644170, 650184, 644195)], these loan numbers corresponds to Mishall, Zyblut, Casella, Ortiz, McEnrow, Champagine and Perez. It are the typical names and loan numbers listed on JTM. The same dismissed claims exactly listed on Memorandum in support of application for ex parte prejudgment remedy and restraining order dated May 8, 2000 (Doc # 7) under the Heading Reyad s Defaults Under the Credit Facility Documents at p.5.

Thus, the same merits, cause of action and proferred evidence of both the dismissed Plaintiff and the now Plaintiff are typical. Pursuant to 28 U.S.C. 455 (b)(3) the same Judge cannot preside on the two (2) cases, even they are filed combined under one case number, practically they are filed by the same Plaintiff wearing two hats, and it also filed in the District of New Jersey exactly typical. For the interest of justice; Honorable Droney must recuse himself from the remaining action as a matter of law.

3

Case 3:00-cv-00835-CFD

Document 418

Filed 09/03/2004

Page 4 of 4

The Defendant Mostafa Reyad

By: Mostafa Reyad 2077 Center Avenue # 22D Fort Lee, NJ 07024 Day Phone # 203-325-4100 E-mail [email protected]

CERTIFICATION

The Undersigned certifies that he mailed a true and correct copy of this Document to Attorney David Schaefer 271 Whitney Avenue, New Haven, CT 06511 and Hand delivered to Wafa Reyad

Mostafa Reyad

4