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

16

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