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UNITED STATES OF AMERICA, et. al.
) ) Plaintiffs, ) ) v. ) ) Case 1:12-cv-00361-RMC BANK OF AMERICA CORPORATION, ) Judge: Hon. Rosemary M. Collyer et. al. ) ) Defendants. ) _________________________________ )
AMICUS BRIEF -- MOTION TO RECONSIDER JAY FENELLO, HOMEOWNER LITIGANT, OCCUPYTHECOURTS.ORG This Amicus Brief – Motion to Reconsider is hereby submitted under Rule 59 (a) of the Federal Rules of Civil Procedure (FRCP), which states in part: “The court may, on motion, grant a new trial on all or some of the issues—and to any party—” (emphasis added). It is respectfully submitted by Jay Fenello, a homeowner currently involved in litigation with Bank of America (Ga. N.D. Case 1:11-cv-04139-WSD), within the 28 day time limit as allowed under Rule 59 (b) FRCP.
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As a homeowner with direct experience of the business practices alleged in this case, and as a potential 3 party beneficiary to this ruling, Mr. Fenello believes that this decision violates the 14th Amendment of the U.S. Constitution, and should therefore be reconsidered.
On November 22nd, 2011, a Mississippi mother was charged for filing a fraudulent food stamp application (Ms. S.D. Case 3:11-cr-00015-HTW-FKB). The mother had lied about a drug conviction, to get food to feed her family. According to the press, the total cost of her fraud was $4,367 -- money she had promptly paid back. Her sentence was, never the less, three years in prison. On March 3 , 2012 this court was asked to approve a settlement with the major banks for filing fraudulent documents that were used to illegally foreclose on homeowners. Over 100 thousand fraudulent documents and affidavits were filed in the courts, each and every one as fraudulent as the falsified food stamp application in Mississippi. These fraudulent filings were used to support defective foreclosures, resulting in displaced families, empty homes, and falling property values and tax
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revenues. Each family who lost a home to an illegal foreclosure, has lost tens of thousands of dollars, and experienced extreme hardship in the process. The real cost of these fraudulent filings could easily be $50,000 or more per foreclosure. The worst part is, these banks knew they were violating the law. They had been caught doing so before. They signed a consent decree with the Comptroller of the Currency, and agreed to stop these practices. But they didn’t (as evidenced by this negotiated settlement), and they haven’t (as evidenced by the ongoing status of Mr. Fenello’s case). While the cash settlement may be significant, it does not properly compensate homeowners who had their homes confiscated through defective foreclosures, it shifts a significant portion of these penalties from the banks to the investors and taxpayers, and it does not hold accountable the executives who were responsible for these ongoing practices. It also allows the banks to continue these practices, albeit with limits. Given the enormity of the damages caused by these banks, this negotiated settlement seems inadequate and unfair. Instead of restitution and jail time, bank executives are shielded from criminal prosecution, and can walk away with millions in bonuses from the extra profits their policies generated.
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According to the 14 Amendment to the U.S. Constitution, "No State shall…deny to any person within its jurisdiction the equal protection of the laws." When a mother receives jail time, while bank executives skirt criminal prosecution and are instead rewarded financially, it is undeniable that these two cases illustrate a breakdown in the “equal protection” clause. Worst of all, this is not an isolated incident. The chairman of Countrywide, arguably the company most responsible for the financial meltdown, received $390 million in compensation the five years before he resigned. He settled his fraud case with the SEC for a mere $22.5 million. Another example is the chairman of MF Global, who apparently embezzled over $1.6 billion in client funds, and perjured himself in a Congressional hearing. To date, no criminal investigations have been announced. In fact, since the Great Recession began, not a single wall street banker has been indicted for the financial meltdown. Since the executive branch of government is clearly ignoring their responsibility to uphold and protect the Constitution, their actions give the appearance of two standards of justice in this country: One for the 1%, and one for everyone else.
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This untenable situation is not only unconstitutional and unfair, but it calls into question the very legal foundation on which this government stands. It is clearly incumbent on this court to act as the authority of last resort, and to take whatever actions are necessary to preserve and protect our Constitution. This will not be easy. It will require extreme fortitude on the part of the judges willing to take this stand. It will require actions like those taken by the Honorable Judge Rakoff in the U.S. Securities and Exchange Commission v. Citigroup Global Markets Inc. (NY S.D. Case 1:11-cv-07387-JSR) In that case, Judge Rakoff threw out the proposed settlement, arguing that “the proposed Consent Judgment is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis to know whether the requested relief is justified under any of these standards.” The same can be said about this case. The exact number of fraudulent filings, and the monetary damages involved, are all unknown. They have not been pursued in discovery, nor presented to a grand jury for indictment. This lack of evidentiary basis makes it impossible to know if this settlement is indeed fair, reasonable, or adequate. It also makes it much more difficult for the
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homeowners who have been harmed by these actions to pursue civil actions, as the evidence normally discovered in criminal proceedings are simply not available. Finally, while this settlement attempts to stop these fraudulent practices moving forward, the Enforcement Terms of the Consent Judgment (Exhibit E) allows the banks to continue these practices as long as they do not exceed a threshold rate of 1% for wrongful foreclosures, and 5% for most other torts. Given the banks’ prior history of ignoring their previous Consent Decree with the Comptroller of the Currency, these threshold limits almost guarantee that these practices will continue. This is especially true, given that the vast majority of homeowners facing wrongful foreclosure are unaware of their rights, and will vacate their homes without formal challenge.
According to Rule 59 (a)(2) FRCP “the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”
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For the reasons outlined above, Mr. Fenello respectfully requests that this Court reconsider this decision, and address the following short comings in this settlement: 1. Remand this case to the U.S. and State Attorney Generals, to complete their investigations into the extent and damages of the fraud perpetrated. 2. Remove any shield from criminal prosecution for the executives who had implemented these policies, and claw back any bonuses accrued through these fraudulent actions. 3. Reduce the thresholds for enforcement action to 0%, so that every violation of the terms of this agreement are subject to penalty. 4. Adjust the proposed settlement amounts and funding sources, to provide a more equitable solution for those who have been harmed, based on the results of the criminal investigations. NOTE: Since Mr. Fenello is filing this pro se, he asks that this Motion be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers” Erickson v. Page 4 of 13 Pardus, 551 U.S. 89, 94 (2007), and as a consequence, he be allowed to amend this Motion to correct any deficiencies as filed.
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Respectfully submitted April 30, 2012
_________________________ Jay Fenello 289 Balaban Circle Woodstock, GA 30188 www.OccupyTheCourts.org 770-516-6922
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