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No._________
__________________________________________
In the Supreme Court of the United States
____________
Michael Paul Castrillo
Petitioner
V.
Wells Fargo N. A / American Home Mortgage Servicing Inc.
_____________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________
PETITION FOR A WRIT OF CERTIORARI
______________
Michael Paul Castrillo
814 Alvar St.
New Orleans, LA 70117
(504) 495-0502
Pro Se
i.
QUESTIONS PRESENTED
1. Whether, to ensure the uniformity of
application of FRCP Rule 5.1 throughout the
federal circuits, the Court will rule whether
the district courts‟ findings are correct, and
provide guidance on the implementation of
the Rule.
Rule 5.1 was made effective December
1st, 2006, and as such there is a dearth of
case law on its proper deployment. In the
instant case the district court made various
findings regarding its implementation, and
on appeal the Fifth District Court of Appeals
declined to review those findings. To ensure
uniformity of application throughout the
federal circuit this Court should clarify this
important matter.
2. Whether the statutory defects within
Louisiana State foreclosure laws are in
accord with US Const. amend. 5, amend. 14,
sec.1 and the precedents of this Court.
Petitioner, (hereafter Castrillo) filed a
motion for injunctive relief regarding
statutory defects in Louisiana State
foreclosure law, as well as a Rule 5.1 Notice.
The district court denied the motion and the
Court of Appeals affirmed.
ii.
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case
on the cover page.
iii.
TABLE OF CONTENTS
Questions Presented……………….……...i.
Parties to the Proceedings……….………ii.
Table of Contents…………………………iii.
Opinions below........................................iv.
Jurisdiction…………………………….......iv.
Constitutional and Statutory
Provisions involved……………….v.
Table of Authorities………………………v.
STATEMENT:
Introduction……………………… 1.
Statutory Framework…………….2.
I. RULE 5.1:
Jurisdiction………………………...3.
Background………………………...4.
Questions Presented………………5.
Discussion…………………………..6.
II. LOUISIANA FORECLOSURE
STATUTES:
Jurisdiction…………………………8.
Standard of Review…………….….9.
Background………………………..12.
Discussion………………….……...13.
Conclusion…………………………22.
III. REASONS FOR GRANTING
THE PETITION………………….23.
VI. CONCLUSION………………………..23.
VII. APPENDIX
iv.
PETITION FOR A WRIT OF
CERTIORARI
Petitioner Michael Paul Castrillo
respectfully petitions for a writ of certiorari
to review the judgment of the United States
Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The original orders of the United
States District Court for the Eastern District
of Louisiana are available at Castrillo v. Wells
Fargo, et al. #: 2:09-cv-04369-SSV-DEK and are
excerpted throughout.
The opinions of the United States
Court of Appeals for the Fifth Circuit are
available at Castrillo v. Wells Fargo, et al. #:
2:09-cv-04369-SSV-DEK and are excerpted
throughout.
JURISDICTION
The Court of Appeals’ order affirming
the district court's denial of Castrillo's claim
of injunctive relief (r. 42, 70) was issued on
June 10th, 2010, before circuit judges
Higginbotham, Davis, and Benavides (r. 87).
The order denying his amended and restated
petition was issued September 2nd, 2010, by
circuit judges Clement, Southwick, and
Haynes (r. 90). Castrillos' Notice of
Constitutional Question was stricken by the
district court (r. 81, 86) June 4th, 2010, and
the Court of Appeals declined to review
September 2nd, 2010.
The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
v.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. US Const. amend. 5, and amend. 14,
sec.1.
2. Federal Rules of Civil Procedure Rule 5.1.
3. Louisiana Code of Civil Procedure articles
2631-2640.
4. Louisiana Revised Statutes, Title 10:9-
629.
TABLE OF AUTHORITIES
1. Cohen v. Beneficial Industrial Loan Corp. 337
U.S. 546 (1949))
2. Cohen v. Board of Trustees, 867 F.2d at 1464
3. (Avery v. CitiMortgage, Inc., 15 So.3d 240, 243
(La.Ct. App. 2009)
4. 405 US 174 Overmyer Co Inc of Ohio v. Frick
Company
5. Capital Trust v. Tri-National Development
Corp et al. (Super. Ct. No GIC756510).
6. 93 F3d 636 FDIC v. Aaronian
7. Kadrmas v. Dickinson public schools, 1988, p.
457
8. FCC v. Beach Communications inc 1993, p.
313
9. United States v. Carolene Products Company,
304 U.S. 144 (1938
10. Mongeau v. City of Marlborough, 492 F. 3d
14 - Court of Appeals, 1st Circuit 2007
vi.
11. United States v. Salerno, 481 US 739 -
Supreme Court 1987
12. Tex. Workers' Comp. Comm'n v. Garcia, 893
S.W.2d 504, 518 n.16 (Tex. 1995) pg. 518
13. Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App. 1992
14. Rodriguez v. State, 47 S.W.3d 86, 88 (Tex.
App.- Houston [14th Dist.] 2001, pet.
Ref'd).[2]
15. 93 F3d 636 (FDIC v. Aaronian)."
16. Pena v. State, 191 S.W.3d 133, 136 (Tex.
Crim. App.2006)
17. Clinton v. Jones, 520 U.S. 681, 690 (1997
18. Walker v.Gutierrez, 111 S.W.3d 56, 66 (Tex.
2003
19. Meshell v. State, 739 S.W.2d 246, 250 (Tex.
Crim. App. 1987
20. Tex. Dep't of Family & Protective Servs. V.
Dickensheets, 274 S.W.3d 150, 155). (Tex.
App.- Houston [1st Dist.] 2008, no pet
21. Tex. Boll Weevil Eradication Found., Inc. v.
Lewellen, 952 S.W.2d 454, 463 (Tex. 1997
22. Valero Refining-Tex. L.P. v. State, 203
S.W.3d 556, 563 (Tex. App.- Houston [14th
Dist.] 2006, no pet
23. Ex Parte Dave, 220 S.W.3d 154, 156 (Tex.
App.- Fort Worth 2007,
24. Morrissey v. Brewer, 408 U. S. 471, 408 U. S.
481
25. Swarb v. Lennox 405 U.S. 191
26. Overmyer v. Frick Co., 405 U.S. 174 (1972
vii.
27. Rock v. Arkansas, 107 S. Ct. 2704, 2709
(1987).
28. Faretta v. California, 422 U.S. 806, 819
n. 15 (1975);
29. In re Oliver, 333 U.S. 257, 273 (1948).(
30. Board of Regents, 408 U.S. 564)
31. Fuentes V Shevin 1407 U.S. 67 (1972),
32. In Avery v. CitiMortgage, Inc., 15 So.3d 240,
243 (La.Ct. App. 2009)
33. Kadrmas v. Dickinson public schools,
1988, p. 457
34. Eldridge 424 US 319, 335
35. Capital Trust v. Tri-National
Development Corp et al. (Super. Ct.
No. GIC756510);
36. Hamilton v. Schiro, Civil No. 69-2443
(E.D. La., June 25, 1970).
1.
STATEMENT
INTRODUCTION
This is an appeal from an adverse
ruling on a 5.1 Notice of Constitutional
Question (r. 81, 86), and denial of injunctive
relief (r. 42, 70, pg 30), affirmed by the Court
of Appeals (r. 90, last paragraph), regarding
statutory defects in Louisiana State
foreclosure law (r. 81). The district court
made various findings regarding the use of
Rule 5.1 (r. 86) that this Court should review
to ensure uniformity of application
throughout the federal circuit.
There are no factual disputes
regarding the questions presented, the issues
are in an unsettled area of law and are of
great importance to non-parties. This case
makes an excellent vehicle for addressing
these issues as the rulings of the courts
below did not rely on state law and this is
virtually the only litigation in either state or
federal court regarding these issues.
The statutory regime regarding
foreclosures in Louisiana allows neither
notice nor hearing that a party has been
sued (r. 81), and the sheer number of rapid,
uncontested foreclosures makes necessary
the immediate intervention of this Court.
This Court has held to be appealable
those orders which "finally determine claims
of right separable from, and collateral to,
rights asserted in the action, too important to
be denied review and too independent of the
cause itself to require that appellate
consideration be deferred until the whole case
is adjudicated, (Cohen v. Beneficial Industrial
Loan Corp. 337 U.S. 546 (1949))." The
2
questions presented fall squarely within that
rubric.
STATUTORY FRAMEWORK
The state of Louisiana allows two
procedures to effect foreclosure;
1. "Ordinary Process," which operates as an
ordinary lawsuit subject to the rules of civil
procedure (Louisiana Code of Civil Procedure
article 2596).
2. "Executory Process," wherein a lender
may file suit against a homeowner without
notice. The homeowner has no statutory
right to a hearing (Louisiana Code of Civil
Procedure articles 2631-2640; Louisiana Revised
Statutes, Title 10:9-629). A Writ of Seizure and
Sale is issued, but not served. The property
is then advertised once a week for thirty (30)
days and then sold at auction. Only then is
the homeowner informed of the litigation and
the sheriff's sale by deputy sheriffs come to
evict them. As there is no lease and the
property in no longer in their name,
Louisiana eviction procedures do not apply.
The few defenses and procedural
objections available by statute must be
asserted prior to the sheriffs sale (Avery v.
CitiMortgage, Inc., 15 So.3d 240, 243 (La.Ct.
App. 2009) but as the homeowner is not
informed either of the litigation, the issuance
of the writ, nor the sheriffs sale, there is no
meaningful opportunity to raise those
defenses.
The procedure of "Executory
Process" is made available to the foreclosing
entity by LCCP article 2631;
3
"Executory proceedings are those which
are used to effect the seizure and sale of property,
without previous citation and judgment, to
enforce a mortgage or privilege thereon evidenced
by an authentic act importing a confession of
judgment, and in other cases allowed by law;"
and RS 10:9-629 (1), which states that;
… "(An) authenticated record that contains a
confession of judgment shall be deemed to be
authentic for purposes of executory process."
Buried deep in the text of the
commonly used Louisiana mortgage
documents is a "confession of judgment"
clause (appendix) whereby the signatories
unknowingly sign away their due-process
rights.
I.
RULE 5.1
JURISDICTION
Rule 10(c)
"… (A) state court or a United States
court of appeals has decided an important
question of federal law that has not been, but
should be, settled by this Court, or has
decided an important federal question in a
way that conflicts with relevant decisions of
this Court."
4
BACKGROUND
Though these are the res judicata
proceedings, the defendants filed a later suit (Wells Fargo, et al. v. Castrillo, OPCDC #09-
3625) in state court regarding the same
issues, (r. 25, exhibits A thru F). That
"executory process" case reached final
judgment that same day, concluding April
23rd, 2008. As allowed by Louisiana law, the
defendants kept the knowledge of those
proceedings to themselves until after the
filing of Castrillos' federal complaint,
revealing it in court a half-year later (r. 25).
In his motion for judgment on the
pleadings (#41) Castrillo wrote;
"Plaintiff (calls) the Courts attention to the
"Confession of Judgment" proceedings in the
CDC. While Plaintiff had claims to be heard,
(which) were in fact being heard in a separate
division, the Defendants successfully obtained a
(writ) without any opportunity presented to the
Plaintiff to be heard in that Court. Plaintiff
alleges that the Defendants actions in this and
other cases illustrate that such a system is ripe
for abuse and undermines the rights to due
process of those so involved."
Castrillo filed a motion for injunctive
relief (#42), requesting;
"…a ruling that the "confession of
judgment" clauses in mortgage contracts in this
District are deficient, and that actions brought
under such documents negate the right to due-
process of those so involved.
He does further request of this Honorable
Court an injunction against further use of said
procedure that involve contracts with the deficient
language, and order review of previous filings in
this district."
Castrillo filed motions for
reconsideration (#'s 37, 74), stating in part;
5
"Plaintiff posits that reliance was placed
on the (forged) documents by the Courts,
specifically in a proceeding in the Orleans Parish
CDC that was not revealed by the defendants
until after the filing of Plaintiffs Complaint. The
injury Plaintiff sustained was the issuance of a
Writ of Seizure and Sale against his property."
And;
"The plaintiff (does) not request an
injunction regarding his own property, state court
proceedings, nor any interference whatsoever in
the adjudication of those matters. He request(s)
an injunction forbidding the continued use of a
particular law that is constitutionally defective
both facially and as-applied. He (makes) his
request regarding said law on 14th amendment,
due process grounds. Nonetheless, the Court
ruled against the injunction on the grounds that
the (defendants state court foreclosure filing is) a
state court matter that is has no jurisdiction over.
The plaintiff concurs with the Courts reasoning,
and (makes) no request that it do so."
Subsequently Castrillo filed a Rule 5.1
Notice of Constitutional Question (r. 81),
fleshing out the constitutional challenge (see
below) and asking the Court to declare the
referenced statutes to be unconstitutional.
QUESTIONS PRESENTED
1. Is the Notice a sufficient vehicle for the raising
of a constitutional question?
2. At what interval in the proceedings is a
constitutional challenge properly before
the court?
6
DISCUSSION
After several years’ deliberation and
public comment, Rule 5.1 replaced Rule
24(c). The committee notes of the Judicial
Conference state;
“Moving the notice and certification
provisions from Rule 24(c) to a new rule is
designed to attract the parties‟ attention to these
provisions by locating them in the vicinity of the
rules that require notice by service and pleading
(Civil Rules Advisory Committee, 2006).”
Rule 5.1(a) states that
“…A party that files a pleading, written motion,
or other paper drawing into question the
constitutionality of a federal or state statute must
promptly…file a notice of constitutional question
stating the question and identifying the paper
that raises it."
As noted above, Castrillo made an "as-
applied" challenge in his previous filings,
and both a facial and "as-applied" challenge
in the Notice. The first question at hand is
whether the Notice is a sufficient vehicle for
the making of a constitutional challenge.
The language of rule 5.1 reads that
any "pleading, written motion, or other
paper" may potentially raise a question
regarding the constitutionality of a statute.
Disregarding the previous challenges made
by Castrillo, including his request for an
injunction, the "paper" that again raises and
explores the question is the Notice itself.
The plain reading of the rule does not appear
to preclude the Notice from being perhaps
the most logical place to make and expound
on a constitutional challenge. Nor does the
rule require that challenges may only be
brought before the court in the original
complaint.
7
The district court found otherwise,
and ruled that;
"The purported constitutional questions
raised by Castrillo are not properly before the
court….Under the Court's scheduling order, the
deadline for amending pleadings (passed) well
before Castrillo filed his notice of constitutional
question….The Court has recently ordered that
"(t)he deadlines for discovery and for the filing of
non-evidentiary pretrial motions have
passed,"(and) that "discovery and motions
practice are closed."
Castrillo has presented no good cause why
his purported constitutional questions were not
timely raised, and the time for raising them has
long passed. To the extent Castrillo seeks to
further amend his complaint, the Court denies
leave.
Castrillo's motion for injunctive relief may
have attacked the validity of the confession of
judgment clause included in his mortgage
contract, but it did not attack the facial validity
of executory process foreclosure proceedings in
Louisiana (r. 86, pgs. 1 & 2)."
Regarding the last, the district court
noted that Castrillo attacked the confession
of judgment clause in Louisiana mortgage
contracts. That clause is what makes
possible executory process proceedings.
Without the clause, there is no executory
process. An attack on one is necessarily an
attack on the other, so the distinction drawn
by the district court is unclear.
So the second question; at what
interval in the proceedings is a constitutional
challenge properly before the court?
8
II.
Louisiana State Foreclosure
Statutes
JURISDICTION
28 U.S.C. 1292(a) (1);
(a) Except as provided in subsections (c) and (d)
of this section, the courts of appeals shall have
jurisdiction of appeals from
(1) Interlocutory orders. . . granting,
continuing, modifying, refusing or dissolving
injunctions, or refusing to dissolve or modify
injunctions, except where a direct review may be
had in the Supreme Court.
Cohen v. Board of Trustees, 867 F.2d
at 1464);
"When a claim seeking injunctive relief is
dismissed, even on jurisdictional grounds, the
effect of the dismissal is to deny the ultimate
equitable relief sought and the order is
appealable under § 1292(a)(1)."
Cohen v. Beneficial Industrial Loan
Corp. 337 U.S. 546 (1949
"(A constitutional challenge must) finally
determine claims of rights separable from, and
collateral to, rights asserted in the action."
The district court has denied the claim
for injunctive relief;
"… (The district court) lacks jurisdiction
to enjoin the enforcement of Wells Fargo‟s writ of
seizure and sale. Castrillo must pursue this relief
9
in state court. Castrillo‟s motion for injunctive
relief is DENIED (r. 70, pg 31).
The district court affirmed its denial
in a motion for reconsideration;
"…If Castrillo wants to challenge the
constitutionality of Louisiana‟s executory process
foreclosure proceedings, he must do so in his state
court foreclosure proceedings (r. 84, pg. 5)"
The district court granted defendants
motion to strike the Notice of Constitutional
question;
"…Castrillo‟s motion for injunctive relief
does not even refer to the provisions of Louisiana
law that he now asks the Court to declare
unconstitutional, (r. 86, pg. 2)."
The Court of Appeals affirmed, finding
that;
"The district court's denial of injunctive
relief was without prejudice to his seeking relief
in the ongoing state court proceedings, and
Castrillo has not shown that his right to
injunctive relief is clear and indisputable (r. 90,
pg. 3)."
STANDARD OF REVIEW
Strict scrutiny is applied when
governmental action "interferes with a
fundamental right or discriminates against a
suspect class, (Kadrmas v. Dickinson public
schools, 1988, p. 457). The burden is on the
government to show that the legislative act
is narrowly tailored to achieve a compelling
state interest. The state must show “if there
is any reasonably conceivable state of facts
that could provide a rational basis for the act (FCC v. Beach Communications inc 1993, p. 313).
A higher level of scrutiny is required for
legislation that meets one or more of certain
10
conditions; does the statute, on its face,
violate a provision of the Constitution; does
it attempt to distort or rig the political
process; or does it discriminate against
minorities, particularly those who lack
sufficient numbers or power to seek redress
through the political process, (United States v.
Carolene Products Company, 304 U.S. 144
(1938). Does the statute “(shock) the
conscience...” (Mongeau v. City of Marlborough,
492 F. 3d 14 - Court of Appeals, 1st Circuit 2007).
To prevail on a facial challenge, "the
challenger must establish that no set of
circumstances exists under which the [law]
would be valid...(nor) be invalidated for
overbreadth unless it reaches a substantial
number of impermissible applications,
(United States v. Salerno, 481 US 739 - Supreme
Court 1987)." A facial constitutional challenge
requires a showing that a statute is always
unconstitutional in every application, (Tex.
Workers' Comp. Comm'n v. Garcia, 893 S.W.2d
504, 518 n.16 (Tex. 1995) pg. 518). Thus, for a
statute to be facially, and therefore always,
unconstitutional, it must also be
unconstitutional as applied to the individual
at issue, (Santikos v. State, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992); (Rodriguez v. State, 47
S.W.3d 86, 88 (Tex. App. - Houston [14th Dist.]
2001, pet. ref'd). [2]
Courts are to presume that a statute
is constitutional and should not reach a
constitutional issue unless absolutely
required, (Pena v. State, 191 S.W.3d 133, 136
(Tex. Crim. App. 2006) (“'If there is one
doctrine more deeply rooted than any other
in the process of constitutional adjudication,
it is that we ought to pass on questions of
constitutionality . . . unless such adjudication
is unavoidable,'" (quoting Clinton v. Jones, 520
U.S. 681, 690 (1997)); (Walker v. Gutierrez, 111
S.W.3d 56, 66 (Tex. 2003) (“We begin our
analysis by presuming the statute is
11
constitutional."); Meshell v. State, 739 S.W.2d
246, 250 (Tex. Crim. App. 1987) (noting the
court's “reluctance to decide constitutional
questions unless absolutely necessary").
Courts should decide constitutional
issues narrowly based on the precise facts of
the case, not speculative or hypothetical
injuries, (Pena, 191 S.W.3d at 136 (following
U.S. Supreme Court practice “not 'to
formulate a rule of constitutional law
broader than is required by the precise facts
to which it is to be applied'" (quoting Clinton,
520 U.S. at 690)); (Tex. Dep't of Family &
Protective Servs. v. Dickensheets, 274 S.W.3d 150,
155). (Tex. App. - Houston [1st Dist.] 2008, no
pet.) (“Facial invalidity cannot be premised
on 'hypothetical facts that have not yet
arisen.'" (Tex. Boll Weevil Eradication Found.,
Inc. v. Lewellen, 952 S.W.2d 454, 463 (Tex.
1997))); Valero Refining-Tex. L.P. v. State, 203
S.W.3d 556, 563 (Tex. App. - Houston [14th Dist.]
2006, no pet.) (rejecting constitutional
challenge based on “hypothetical analysis"
and noting appellant did not bring forth
sufficient record to show the facts
surrounding his conduct to support a
constitutional violation). A statute cannot be
unconstitutional based only on harm to
another; there must be an actual injury to
the litigant in the present case. (Santikos, 836
S.W.2d at 633 ("[I]t is incumbent upon the
[appellant] to show that in its operation the
statute is unconstitutional as to him in his
situation; that it may be unconstitutional as
to others is not sufficient," (internal
quotation marks omitted)); Meshell, 739
S.W.2d at 205 (“Before a court decides an
issue involving the constitutionality of a
statute, it must first assure itself that the
party raising such a claim has presently
been injured by the statute."); Ex Parte Dave,
220 S.W.3d 154, 156 (Tex. App.- Fort Worth 2007,
pet. ref'd) (“That the statute may be
unconstitutional as applied to others is
12
insufficient to support a facial challenge."). A
party; "…must allege with some specificity
facts tending to show a constitutional defect
in the application of this procedure to him,
either when the judgment is entered or at
the enforcement stage, (93 F3d 636 FDIC v.
Aaronian)."
And finally; "[D]ue process is flexible
and calls for such procedural protections as
the particular situation demands, (Morrissey
v. Brewer, 408 U. S. 471, 408 U. S. 481).
BACKGROUND
As noted above, after the
commencement of this litigation in state
court the defendants filed for foreclosure in a
separate division (r. 25, exhibits A thru F). The
defendant's state court filing reached final
judgment in April of 2009 (id.) As the
principle of res judicata already nullifies the
state court proceedings, a ruling by this
Court is not a collateral attack on that
judgment.
As that litigation has the same issues
and parties as these, reopening duplicative
proceedings in state court would inexorably
lead to dismissal here. As such, this is the
only vehicle available to make this challenge.
This constitutional challenge is not a
review of a state court judgment, an action
forbidden the courts under Younger or
Rooker-Feldman. This is a challenge to the
Louisiana foreclosure statutory regime.
13
DISCUSSION
1. Loss of rights by subterfuge.
The considered waiving of
constitutional rights is settled jurisprudence
(Swarb v. Lennox 405 U.S. 191). This Court
does nonetheless require that the waiving of
these rights must be "voluntary, knowing,
and intelligently made, (Overmyer v. Frick Co.,
405 U.S. 174 (1972)."
Louisiana law and custom are
precisely the opposite. A hidden clause
buried deep in the boilerplate text of the
standard Louisiana mortgage document
negates the entirety of the signatories' hard-
won rights to due process (r. 42, exhibit A,
Appendix).
This is a simple matter; the
jurisprudence of this Court requires the
signatories to a cognovit note be made aware
that they are in fact signing a cognovit note.
That, upon signing, they can be sued, and
lose, and not be informed until the day of
eviction.
The Overmyer court required that a
contractual waiver of due-process rights
must be set off from the text in a conspicuous
way that explains the rights one gives up
upon signing the mortgage contract. This
must be done in a way that the "least
sophisticated" borrower understands the
terms, (Act 15 U.S.C. §§ 1692-1692p). There
must be equality between the parties and no
contract of adhesion.
Louisiana law does not require the
signatories be informed, and Louisiana
custom is to follow the law.
Again, from Overmyer;
“...the right to be heard in court is central
to our system of justice, and, as with other
constitutional rights, there is no presumption of
14
waiver...Because the cognovit note deprives the
debtor of notice that he is being sued, and of his
right to a hearing, courts demand "clear and
convincing evidence "that the written waiver was
"voluntary, knowing, and intelligently made."
2. Evidence not required.
Louisiana law allows the surrendering
of constitutional protections by subterfuge,
and further allows these covert foreclosures
to proceed with virtually no evidentiary
requirements whatsoever.
"Our constitutional arrangements include
the right of a defendant to present a defense. It
follows that, in order to do so a defendant must
have access to proof that establishes their
liability, as well as a right, derived from several
constitutional sources, to give the fact-finder his
own testimony (Rock v. Arkansas, 107 S. Ct.
2704, 2709 (1987); Faretta v. California, 422 U.S.
806, 819 n. 15 (1975); In re Oliver, 333 U.S. 257,
273 (1948). (Bennet Gershman, Professor of Law,
Pace University)."
The evidentiary requirements of state
law would perhaps pass constitutional
muster in corporate or business contracts
wherein all parties are represented by
counsel and therefore negotiation was on an
equal footing, (93 F3d 636 FDIC v.
Aaronian). Regarding residential mortgages
however, it amounts to no evidentiary
requirement at all. Under a regime that
allows a homeowner to lose their property
without knowledge or notice, the only
judicial review will be the preliminary one.
The homeowner has no opportunity to make
their own review, raise a defense, or make
counter-claims. One would expect therefore
that the evidentiary burden would be high--
but that is not the case. All that is required
is a third-party affidavit from the foreclosing
15
parties’ counsel, attesting that the
information is probably correct. In such a
system the moral hazard is incalculable;
Ҥ9-629
Judicial proceedings; authentic evidence.
A. “...For purposes of executory process, the
existence, amount, terms, and maturity of the note
or other written obligation not evidenced by an
instrument paraphed for identification with the
act of mortgage or privilege may be proved by
affidavit or verified petition.
B. The affidavit or verified petition may be
based upon personal knowledge or upon
information and belief derived from the records
kept in the ordinary course of business of the
mortgagee, the creditor whose claim is secured by
the privilege, or any other person. The affidavit
or verified petition need not particularize or
specifically identify the records or date upon
which such knowledge, information or belief is
based.
C. The affidavit shall be deemed to
provide authentic evidence of the existence,
amount, terms, and maturity of the obligation for
executory process purposes, (RS 9:5555 —
Executory process in the case of notes
or other obligations not paraphed for
identification with the mortgage)…."
"(a) Foreclosure. For purposes of executory or
ordinary process seeking enforcement of a security
interest and the obligation it secures:
(1) An authenticated record that contains
a confession of judgment shall be deemed to be
authentic for purposes of executory process...”
(3) The signatures of all debtors...whose
signatures purport to appear upon or be affixed to
a written security agreement...are presumed
to be genuine if the verified petition, or an
affidavit attached thereto, for executory or
ordinary process with which they are filed or in
which they are identified, alleges or affirms
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that they are genuine to the best of the
information, knowledge, or the belief of the
plaintiff or affiant and no further evidence
shall be required of such signatures for the
purposes of executory or ordinary process...”
(5) …(T)he amount thereof due and
unpaid, and the fact of the debtors' default may
be proven by affidavit or verified petition.”
All of the above assumes, of course,
that the homeowner has discovered there is
process against them, and that they
intervene between the time of filing and final
judgment—usually a matter of hours.
3. Final judgment means final.
The foreclosure statutes make no
provision for notice, hearing, or challenge to
judicial process at any time, thus vitiating
homeowners' right to due-process both in
substance and procedure.
"No State shall … deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws (US
Const. amend.14, sec.1).”
This Court has ruled that;
“...The requirements of procedural due
process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment's
protection of liberty and property. When protected
interests are implicated, the right to some kind of
prior hearing is paramount. (Board of Regents,
408 U.S. 564)
The statutes deprive homeowners of a
hearing either before or after the
adjudication of their property rights.
Prior to the repeal of article 2639 as
well as the 2005 hurricane season,
17
Louisiana's’ statutory regime stood on the
flimsiest of ground;
“... (E) xecutory process skips(s) citation,
contradictory hearings and judgments. The
problem with such procedures in the past has
been a constitutional one. The U.S. Supreme
Court, in the...case of Fuentes V Shevin 1407 U.S.
67 (1972), held that the defendant in any lawsuit
must be given notice of the suit and an
opportunity to be heard in court. Louisiana's
current (pre-2003) executory process procedures
barely comply with these requirements. Once
executory process issues, the borrower is served
with a demand for payments that are due and
unpaid on the loan (LA CCP 2639). The borrower
has three days to come up with the money. If the
borrower doesn't pay, the court will issue a writ of
seizure and sale, armed with which, the sheriff
will seize the real estate (Lewis Mediation
Group)."
Article 2639, however, was repealed
by acts 2003, no. 1072, 2. The statutory
regime now provides no notice whatsoever
between the filing for foreclosure and a
knock on the door from armed sheriffs, doing
a difficult and undoubtedly emotionally
trying job. As noted in 93 F3d 636 FDIC v.
Aaronian;
“Pennsylvania's confession of judgment
procedure, which the RTC invoked against
Aaronian, has been held constitutional on its face
because it affords an opportunity to reopen the
judgment or to challenge it collaterally at a pre-
deprivation hearing. Jordan, 20 F.2d at 1272
(citing Swarb,405 U. S. at 198)."
Louisiana homeowners are not even afforded
a post-deprivation hearing. They may also
attempt to reopen the judgment, but only
after handing over their door key.
The Fifth District Court of Appeals very
recently delineated the limited options
available to homeowners. In Avery v.
CitiMortgage, Inc., 15 So.3d 240, 243 (La.
18
Ct. App. 2009) the Court found that;
“Defenses and procedural objections to an
executory proceeding may be asserted either
through an injunction proceeding to arrest the
seizure and sale as provided in Articles 2751
through 2754, or a suspensive appeal from the
order directing the issuance of the writ of seizure
and sale, or both.”
As the enforcement of the Writ is the
first and only notification provided, any
defenses or objections, having to be made by
the “least sophisticated” householder, would
have to be raised in the time it takes to have
their possessions removed and the door
locked behind them.
As noted in Capital Trust v. Tri-
National Development Corp et al. (Super.
Ct.No. GIC756510);
"[S]ad experience has shown that the
confession of judgment procedure lends itself to
overreaching, deception, and abuse. Such a
confession cannot on its face represent a
voluntary, knowing and intelligent waiver."
(quoting Isbell v. County of Sonoma, supra, 21
Cal.3d at p. 71.)....The court reject(s) a case by-
case determination of whether a particular
confession of judgment was made after a
voluntary, knowing and intelligent waiver of
constitutional rights; The court conclude(s) that
the opportunity to attack a confessed judgment by
a postjudgment motion was not an adequate
remedy since it did not allow determination of the
validity of the waiver of constitutional rights at a
meaningful time, i.e., before the entry of
judgment....”
In Eldridge 424 US 319, 335, This Court
set out the test as follows:
"[I]dentification of the specific dictates of
due process generally requires consideration of
three distinct factors: first, the private interest
that will be affected by the official action; second,
the risk of an erroneous deprivation of such
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interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and, finally, the
Government's interest, including the function
involved and the fiscal and administrative
burdens that the additional or substitute
procedural requirement would entail.”
As the facts of the instant case can
attest, erroneous deprivation is not a
hypothetical risk. At the close of discovery,
the defendants had provided no rebuttal
evidence that their documents are rather
careless forgeries. Yet after the
commencement of this litigation regarding
those forgeries, the defendants filed them
before another judge, an action in violation of
Act 15 U.S.C. §§ 1692-1692p, and in
contradiction of their own written
assurances. It seems unlikely they would
have begun those proceedings if they were
required to have informed Castrillo at the
time of filing.
4. Adhesion.
Not only are homeowners deprived of
the knowledge they’ve signed their rights
away, they have received no matching
concession in return. Again, from Overmyer;
“(W) here the contract is one of adhesion,
where there is great disparity in bargaining
power, and where the debtor receives nothing for
the cognovit provision, other legal consequences
may ensue.”
Section 211 of the American Law
Institute’s "Restatement (Second) of Contracts,"
which has persuasive though non-binding
force in both state and federal courts,
provides;
20
“For a contract to be treated as a contract of
adhesion, it must be presented on a standard
form on a „take it or leave it‟ basis, and give one
party no ability to negotiate because of their
unequal bargaining position. The special scrutiny
given to contracts of adhesion can be performed in
a number of ways: If the term was outside of the
reasonable expectations of the person who did not
write the contract, and if the parties were
contracting on an unequal basis, then it will not
be enforceable. The reasonable expectation is
assessed objectively, looking at the prominence of
the term, the purpose of the term and the
circumstances surrounding acceptance of the
contract. “Where the other party has reason to
believe that the party manifesting such assent
would not do so if he knew that the writing
contained a particular term, the term is not part
of the agreement."
It can be generally assumed that the
signatories on a residential mortgage
contract have the expectation that they are
provided the full protection of the United
States Constitution. It can be further
assumed that they would not expose
themselves to globalized corporate banks
without that protection.
5. Rational basis.
The state has a compelling state
interest in smoothly functioning property
markets and the enforcement of valid
contracts. It is the guarantor of the property
rights of both lender and borrower.
Absolutely none of these state interests are
compromised by requiring “ordinary process”
for ordinary people. Utilizing the related
“least sophisticated debtor” standard as
contemplated by Act 15 U.S.C. §§ 1692-
1692p, that most vulnerable of groups are
precisely the individuals most likely to sign a
mortgage contract with the challenged
language, though the statutory regime as
21
presently constituted ensnares everyone
“from the gullible to the shrewd.”
The more exotic procedure of
“executory process” has a strong
constitutional foundation and presumably
provides benefits for those inclined to
negotiate them, but the benefits of the
procedure when applied to residential
mortgage contracts all adhere to the maker
of the loan. It is difficult to contemplate any
benefit adhering to the State of its citizens
signing away their constitutional rights by
subterfuge. It would appear that the states’
interests would lay the other way. The
greater understanding the borrower has of
the provisions within the contract, as well as
having the right to be informed of court
process against them, the lesser the chance
for unnecessary displacement, procedural
irregularities, or outright fraud.
6. Application to the instant case.
The actions of the defendants are a
remarkably useful illustration of the defects
of the statutory regime. While Castrillo was
in court contesting the defendants'
fraudulent claim to ownership of his home,
the defendants went before another judge
and took it. It is of some interest that the
defendants filing happened almost
immediately after the plaintiffs’ filing of this
litigation, thus betraying their fearlessness
of consequences as well as the moral hazard
attendant with the statutes.
The plaintiff received from state court
the full benefit of his constitutional rights to
due-process, even while losing them therein.
He is not the only one. In his research for
this litigation, the Plaintiff examined over
two hundred foreclosure files in state court.
He was the first and only person to tell
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many, many, dozens of families that they
had been sued and that they had lost. Many
of those families were still rebuilding and
paying money on houses they no longer
owned.
CONCLUSION
A law that may have been constitutional
previously now has lost its’ constitutional fig
leaf with the repeal of Art. 2639. It further
has an unconstitutional effect of depriving
homeowners, displaced and overwhelmed by
zoning changes, building permits, grants,
insurance and so on, of their right to due
process;
“[D]ue process is flexible and calls for such
procedural protections as the particular situation
demands, (Morrissey v. Brewer, 408 U. S. 471,
408 U. S. 481)."
In the Louisiana case of Hamilton v.
Schiro, Civil No. 69-2443 (E.D. La., June 25,
1970), the court found that the confinement
of prisoners, a punishment not in conflict
with the enumerated rights of the US
Constitution, had been rendered
unconstitutional as a result of the harsh
conditions prevalent at the time in Orleans
Parish Prison. Just so today. In the current
environment, homeowners require a stricter
construction of their due-process rights than
is currently provided.
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III.
Reasons for granting the
petition
A. The district courts' ruling appears to
contradict the plain reading of Rule 5.1.
Unless this Court clarifies the proper
application to the rule, further litigation
across the federal circuits may result. This
case is already being cited as precedent
(appendix), so a ruling is of some importance.
B. Louisiana foreclosure law is an
unconstitutional outrage, and only this Court
may set it right. The local district court and
the court of appeals took a pass on restoring
the basic rights of New Orleanians; this
Court must not do the same.
IV.
Conclusion
The petition for a writ of certiorari
should be granted.
_____________________________
Michael Paul Castrillo