Case: 16-2274 Document: 00117296476 Page: 1 Date Filed: 06/01/2018 Entry ID: 6173962

Glenn F. Russell, Jr., Esq. Attorney-at-Law

Licensed in Massachusetts 38 Rock Street, Suite #12
and Connecticut Fall River, MA 02720

June 01, 2018

Ms. Margaret Carter
Clerk’s Office
United States Court of Appeals
For The First Circuit
United States Courthouse
1 Courthouse Way, Suite 2500
Boston, MA 02210

RE: Hayden, et al. v. HSBS Bank USA, N.A., et. al.

Appeal No. 16-2274

Dear Ms. Carter:

On behalf of our clients (Hayden), I the undersigned herein respectfully

submit a formal response to the First Circuit’s correspondence sent to this office,

dated May 18, 2018, which discusses the fact that the Honorable, Barron, J.

recently discovered he had a conflict which would have required that he recuse

himself during the pendency of this Appeal, under Canon 3C(1)(c) of the Code of

Conduct for United States Judges and 28 U.S.C., §455(b)(4). The stated reason for

recusal was that the Honorable Barron, J. had a “financial interest” in Wells Fargo

Bank, N.A., a party to the Appeal. The May 18, 2018 correspondence from this

Court also cites to Advisory Opinion No. 71 (“Disqualification After Oral

Argument”), However, reviewing said Advisory Opinion, it makes clear in the

second paragraph that it does not apply to situations like the instant matter, as to

38 Rock Street – Suite #12 russ45esq@gmail.com Office (508) 324-4545

Fall River, MA 02720 Fax: (508) 938-0244
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whether a decision that has been entered must be vacated and the case submitted to

a new panel, when it is discovered after entry of the decision that one of the judges

who participated in it was disqualified, and that this is a “judicial function to

determine what circumstances may taint a decision already entered”.

I. From A Review of The Decided Case Law It Appears As Though The

Instant Matter Represents An Unprecedented Event At The Circuit
Level

Undersigned’s review of the case law did not appear to have found any

decision discussing the post decision recusal of a Circuit Judge, and/or its impact

upon the appearance of impartiality of the panel, regardless of being less than

unanimous or unanimous decision. Indeed, viewed from the perspective of “the

appearance of impartiality”, a reasonable person could conclude that the

disqualified judge was the dominant member of the panel and may have influenced

the other Judge’s opinions, whether the ruling was unanimous or not.

However, there is a decision by the United States Supreme Court regarding a

similar fact pattern involving a single U.S. District Court Judge in, Lijeberg v.

Health Servcs. Acq. Corp., 486 U.S. 847 (1988), and which is instructive as to the

application of 28 U.S.C §455(a).

Indeed, the examination necessary under the instant situation is clearly not

based upon a finding of any wrongdoing by the Hon. Barron, J., or solely under 28

U.S.C.§455(b)(4), but succinctly whether “there is even an appearance of a

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impartiality”, see Lijeberg.1 The May 18, 2018 correspondence to the undersigned

solely identifies 28 U.S.C §455(b)(4), but fails to cite to 28 U.S.C §455(a), which

does not require scienter:

“Scienter is not an element of a violation of §455(a). The Judge’s lack of

knowledge of a disqualifying circumstance may bear upon the question of a
remedy, but it does not eliminate the risk that ‘his impartiality might be
reasonably questioned’ by other persons. To read §455(a) to provide that
the Judge must know of the disqualifying facts requires not simply ignoring
the language of the provision---which makes no mention of knowledge…”

Lijeberg involved a matter before a single Federal District Court Judge at the

trial court level, and the issues revolving around his impartiality were discovered

after the trial court decision had been announced. In Lijeberg, the United States

Supreme Court clearly identifies that the examination, like the instant before this

Circuit, where there is a post ruling discovery of a conflict, the reviewing court

must also undergo an examination as to whether there is “an appearance that the

Judges impartiality may be questioned”, under 28 U.S.C §455(a). 2

Thus, under 28 U.S.C §455(a), it,

“….does not require a Judge to perform the impossible by disqualifying

themselves based upon facts they do not know….But to the extent the
provision can also, in proper cases, be applied retroactively, the judge is
not called upon to perform an impossible feat. Rather, he is called upon to

1
Indeed, Petitioners do not state, or imply, that Judge Barron possessed scienter, or
acted wrongfully, in connection with the late disclosure.
2
“28 U.S.C §455(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might be
reasonably be questioned”
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rectify an oversight and to take the steps necessary to maintain public

confidence in the impartiality of the judiciary. If he concludes that ‘his
impartiality might reasonably be questioned,”, then he should also find
that the statute has been violated. This is certainly not an impossible task”.
Lijeberg, at 802.

See also Id, at 801; “Under section 455(a), therefore, recusal is required

even when a judge lacks actual knowledge of the facts indicating his interests or

bias in the case if a reasonable person. Knowing all the circumstances. Would

expect that the judge would have actual knowledge”.

Indeed, 28 U.S.C §455(c) also cautions the following

“A Judge should inform himself about his personal and fiduciary financial
interests, and make a reasonable effort to inform himself about the personal
financial interests of his spouse and minor children residing in the
household”

Thus, a reasonable person would expect, or assume, that a Judge would have

scienter of issues related to his own personal finances at the time of the appeal, or

that most certainly would have become apparent far sooner than May 18, 2018. 3

The preceding would certainly create the appearance of impartiality to one with

full knowledge of all the facts and circumstances of this matter.

Notably, the specific language used within the May 18, 2018

correspondence to the undersigned states that Judge Barron would have been

“required to recuse himself from the Appeal”. Thus, impartiality might reasonably

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be questioned where such “financial interest in Wells Fargo, Bank, N.A.” may

have been of such a significant nature that that mere “disclosure” for waiver

purposes would not have been sufficient.

II. The Remedy For The Instant Appearance of Impartiality Before This
Circuit Is Vactur Under 28 U.S.C §455(a)

In Lijeberg, the procedural posture before the United States Supreme Court

was the Fifth Circuit’s allowance of a Motion to Vacate under Fed. R. 60(b) [post

judgment] due to the discovery of the post judgment conflict of the presiding trial

judge in that matter. The U.S. Supreme Court noted that in considering whether the

Court of Appeals properly vacated the declaratory relief judgment at the trial court

level, they were required to address two (2) questions; (1) a determination whether

§455(a) can be violated based upon the appearance of partiality, even though the

judge was not conscious of the circumstances creating the appearance of

impropriety, and (2) whether relief is available under R. 60(b) when such a

violation is not discovered until after the judgment has become final.

The Lijeberg Court clearly answered the first question in the Affirmative

[a determination whether §455(a) can be violated based upon the appearance of

partiality].

A. Post Judgment Relief Is Available After A §455(a) Violation Has Been

Established

3
Again, Petitioners only make the instant argument from “the Appearance”
viewpoint, and not from any claimed direct failure of Judge Barron.
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“Although §455(a) defines the circumstances that mandate disqualification of

federal judges, it neither prescribes nor prohibits any particular remedy for a
violation of that duty. Congress has wisely delegated to the judiciary the task of
fashioning the remedies that will best serve the purpose of the legislation.”
Lijeberg, at 862

Indeed, the Lijeberg Court noted that §455 itself does not authorize the

reopening of closed litigation. However, that Fed. R. Civ. P., R. 60(b) provides a

procedure whereby a party may be relieved of a final judgment. In particular Rule

60(b)(6) grants the federal courts broad authority to relieve a party from final

judgment, provided that such Motion is made within a reasonable time. Here, the

May 18, 2018 correspondence to the undersigned requests that a “Response” be

filed with the Court, not a formal response on the ECF/CM.

The key examination as to whether a §455(a) ruling should be vacated is

whether “it is appropriate to consider the risk of injustice to the parties in the

particular case, the risk that the denial of relief will produce injustice in other

cases, and the risk of undermining the public’s confidence in the judicial process.

We must continuously bear in mind that, ‘to perform its high function in the best

way justice must satisfy the appearance of justice, [citing In re Murchison, 349

U.S. 133, 349 U.S. 136 (1955)]”. Id, at 864.

The Lijeberg Court then went on to state that it was “critically important in

a case of this kind to identify the facts that might reasonably cause an objective

observer to question Judge Collins’ impartiality”. The Court found it remarkable

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that Judge Collins completely forgot about the issues leading to the appearance of

impartiality. Here, within the instant matter, [and stated with all due respect], an

objective observer would reasonably question why there was an almost ten (10)

month delay is discovering the issues leading to the requirement of recusal,

especially where 28 U.S.C §455(c) requires that a judge should be informed as to

his or her financial and fiduciary interest(s). 4 Other factors involve the fact that the

Petitioners were precluded from presenting oral argument, enhancing an objective

observer’s view of the “appearance of impartiality”. In addition, Petitioners filed a

Suggestion of Bankruptcy to the panel. In an Order dated January 20, 2017, the

Panel [including Judge Barron] found that the instant appeal does not constitute an

action “against the debtor”, and that the panel discerned no impediment to this

appeal proceeding in the ordinary course.

The above, respectfully submitted, missteps on the facts and the law.

Plaintiffs’ filed a complaint that under Count I sought a declaratory judgment

regarding the position of the parties under G.L. c. 244, 14. Thus, under said Count

I, Petitioners were not advancing a “claim” against Defendant, but rather defending

the possession of the title to their real property, to preclude the Defendant’s extra

judicial statutory possession of an asset of the Petitioner’s Estate. The statutory

process undertaken by Defendant here clearly was an “action against the property

4
A very similar time frame as to what is presently before this Court
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of Petitioners’ estate”, to wit the filed complaint was a challenge thereto. Indeed,

Petitioners directly cited to11 U.S.C. §362(a)(3) in support of their suggestion of

bankruptcy, see Docket 16-2274, 11/03/2016, at Doc.# 00117075729, at p. 2; see

the automatic stay as applying as follows: 11 U.S.C. §362(a)(3), “any act to

obtain possession of property of the estate or to exercise control over property of

the estate”. Note that the preceding federal statute very clearly was not limited by

Congress to solely encompass “judicial acts” to obtain possession of property of

the estate, but rather any act. Clearly such Order missteps on the law, and which

prejudiced Petitioners’, and further creates an “appearance of impartiality” to an

objective observer

III. Petitioners’ Request For Vactur Is Timely And Not Unfair To

Deprive Defendant of Its Judgment Where A Review of The
Underlying Merits Also Suggests That There Is A Greater Risk of
Unfairness In Upholding The Judgment

If an objective observer with knowledge of all relevant facts carefully

focuses on the instant decision’s analysis of the underlying merits of this matter, it

would suggest that there is a greater risk of unfairness in upholding the Judgment

in favor of Defendant, as opposed to allowing a new panel to take a fresh look at

the issues.

As support for the preceding is the fact that at Count III of Petitioners’

complaint, they sought a declaratory judgment under G.L. c. 260, §33. Thus, the

preceding claim required the decision to undertake “statutory construction of G.L.

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c. 260, §33” in order to discern the status and rights of the respective parties. The

preceding is especially true under the Petitioners’ myopically focused declaratory

judgment request. Further, this claim also represented a first impression argument,

that was deemed by the panel of not even being worthy of oral argument [one of

the reasons cited in the decision was that Petitioners’ argument “had no basis in

precedent”.5 Further the decision in Hayden states “nothing in the text of the

statute supports the Haydens’ assertion that the acceleration of the maturity date

affects the five-year limitations period for the related mortgage.”6 The ruling

devoted an entire paragraph to the discussion of this count. Further, the decision

only stated that Deutsche Bank National Trust Co. v. Fitchberg Captial, LLC, 28

N.E. 3d 416 (Mass. 2015) was “inapposite because the decision makes no mention

of the impact of an accelerated note on the obsolete mortgage statute’s limitation

period”. The preceding clearly does not correctly state the finding made by the

SJC in Fitchberg. Indeed, unlike the decision in Hayden merely reviewing the

“text” of the statute, in Fitchberg, the SJC examined the statutory background of

G.L. c. 260, §33, and how it was amended in 2006 to create two different statute of

limitations periods. Both examinations focus on the term “maturity date”. Indeed,

5
Indeed, the very meaning of the terms “first impression”
6
This finding is in error, where reviewing Fitchberg clearly evidences that the SJC
found that the underlying Note controlled the analysis regarding the term
“maturity date” referenced within the “text” of G.L. c. 260, §33. It is undisputed
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the SJC undertook a detailed examination of the construction of G.L. c. 260, §33,

which is evidenced by the fact that the SJC interpreted the phrase “mortgage in

which the term or maturity date of the mortgage is stated that triggers the five year

statute of limitations”, see 28 N.E. 3d 416, 422; “…maturity date means “[t]he

date when a debt falls due, such as a debt on a promissory note or bond…this

definition comports with the treatment of mortgages under our common law

principles…a mortgage ultimately depends upon the underlying debt for its

enforceability, citing Eaton v. Fed, Nat’l Mortgage Ass’n, 969 N.E.2d 1118, and n.

11 (2012).” The decision gives extraordinarily short shrift to a first impression

argument specifically advanced by Petitioners, devoting a paragraph to this issue,

and denying oral argument thereon.

Further, with regard to Mortgage Electronic Registration Systems, Inc.

(“MERS”), undersigned presently has a matter pending before this Court;

Baldinelli v. U.S. Bank Trust, N.A., Ca,. 17-1591, where the underlying trial court

Judge (Hon. Young, J.), states that he continues to find that MERS lacks any

‘authority’ under the peculiar aspects of Massachusetts state law to “assign”

mortgages.7 The Hon. Young J. requested that the Defendant certify questions of

law to the SJC regarding MERS, as it was an undecided and “tricky” area of state

that the “maturity date” of a note may be “accelerated”, see G.L. c. 106, §3-3-
118(a), and Ferreira v. Yared, 588 N.E.2d 1370, 1371 (1992).
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law in which the SJC needed to opine. Defendants declined to do so. In his ruling

the Hon. Young, J. stated that while he maintains his belief that MERS cannot act

under state law, that he was bound by the Culhane ruling from this Court, but that

should undersigned appeal that such request to certify questions of law should be

brought forth by Motion to this Court. Undersigned has done precisely that in

which Appeal and Motion remain pending since December 31, 2018. Indeed, no

Court has examined MERS “nominee” status, or precisely how MERS can validly

“assign” mortgage specifically under the strict statutory requirements of [revised

G.L. c. 244, §14]. The SJC has never opined on MERS’ claim to “assign

mortgages”, as that issue was never raised in Eaton, or Galiastro v. MERS, 4

N.E.3d. 270, 279 (2014)

The instant decision based its finding regarding MERS entirely upon citation

to Culhane v. Aurora 708 F.3d 282, 291-293 “[Petitioners’] claim is foreclosed by

precedent, which holds that MERS can validly assign a mortgage without holding

the beneficial title to the underlying property”. Thus, this Court in Culhane never

examined Culhane’s note, or any ‘authority’ of MERS to “assign” Culhane’s

mortgage on behalf of any [MERS] note owner, ref. Eaton v. Fed National

Mortgage Ass’n, 969 N.E. 2d 1118, at n. 10. Indeed, unlike the fact pattern in

Culhane, MERS no longer meets the definition of a “mortgagee” [for statutory

7
The Hon. Young, J. was the author of the trial court ruling in Culhane v. Aurora
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purposes of G.L. c. 244, §14] where MERS does not own notes, [see Eaton, at n.

27, and Culhane at 708 F.3d. 282, 287]. The decision at issue before this Court

also relied upon Dyer v. Wells Fargo Bank, N.A., 841 F.3d.550 (1ST Cir. 2016), in

which the Hon. Barron, J. wrote the opinion. 8 Again, respectfully submitted this

Court continues to replicate the findings made in Culhane to apply to all fact

patterns, legal arguments, and each individual claim for the entitlement to relief

advanced by a borrower, even though confronted with different claims for relief. It

also cannot be disputed that the construction of G.L. c. 244, §14 has indisputably

changed since Culhane, ref. Culhane, at n. 4 “Because we resolve this question in

favor of Aurora, we need not dwell on the prospective only effect of the SJC

decision in Eaton; also at p. 288, “On December 8, 2011—ten days after the

district court entered summary judgment—Aurora foreclosed the mortgage by

entry and sale purchasing the property for $499,000.00” The continued error in

judicial holdings at the Massachusetts federal court level seemingly focus on the

date of decision, and not publication, as the SJC opined in Eaton’s finding of

prospective only effect. Indeed, even in matters where the publication takes place

after Eaton’s prospective applications the federal court of Massachusetts continue

Loan Servcs. Of Neb., 708F.3d. 282 (1st Cir. 2013).

8
Undersigned also received a similar Notice from the Court regarding this matter
as well and will be submitting a separate response to that matter.
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to cite to rulings under the pre-Eaton paradigm. 9 The result is the fact that all of

these cited trial court rulings from the state and federal court, as well as the

intermediate Massachusetts appeals court, remain subject to being left to guess

how the SJC would rule upon these undecided areas of Massachusetts state law.

Thus, the extremely short shrift given to Petitioners’ arguments related to

Mortgage Electronic Registration Systems, Inc. also remain subject to the pending

appeal in Baldinelli, as well as the Motion to Certify Questions of Law to the SJC.

IV. Conclusion

Based upon the entirety of the preceding, Petitioners hereby request that

The instant ruling be vacated in the interests of justice, based upon the appearance

of impartiality under 28 U.S.C. §455(a), and under the equivalent to R. 60(b)(6) at

the Circuit level, and to have a new three Judge group to be impaneled to rehear

the instant matter

Respectfully submitted,

Petitioners,
By their Attorney,

/s/ Glenn F. Russell, Jr.

Glenn F. Russell, Jr.
& Associates, P.C.
BBO# 656914

9
The prospective effect of Eaton was held to apply to publications of auction sale
taking place after June 22, 2012, [see Eaton at 969 N.E. 2d. 1118,1133.
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38 Rock Street, Suite #12

Fall River, MA 02720
(508) 324-4545
russ45esq@gmail.com

Dated: June 01, 2018

CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr. hereby certify that on June 01, 2018, I served a true
copy of the foregoing Opposition by way of the ECF/CM System TO THE
REGISTERED PARTICIPANTS LISTED BELOW.

Sean R. Higgins, Esq.

K&L Gates LLP
State Street Financial Center
One Lincoln Street
Boston, MA 02111 /s/Glenn F. Russell, Jr
Glenn F. Russell, Jr

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