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IN THE UNITED STATES EASTERN DISTRICT COURT JP MORGAN Plaintiff v. T Patrick Murray Tanuja Singh Murray Defendants/Appellants : : : : : 12(b) MOTION # 05579-12 Chester County Civil Foreclosure Action

EMERGENCY 12(b) MOTION TO DISMISS OR STAY SHERIFF SALE UNTIL AFTER APPEAL AND FEDERAL CLAIM ADJUDICATION Home is the American dream. It is the biggest purchase of our lives, and our lives are lived within this sacred space. Is there such thing as a lawful foreclosure? Yes, of course there is but this is not one of them. As a former attorney with an MBA who practiced in two states and federally, I am SADDENED AND SHOCKED that we have to resort to these motions after months of clearly notifying all parties of the errors that led us here- not to mention the inexplicable and indefensible action by the trial court to take $119 from us as a fee for our timely filed Petition To Open with attached Answer and New Matter and then promptly ignore its existence.

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But there is something more simple and elegant that should stop this madnessproof of the truth evidence of owner identity, and confirmation of fraud and lies by both Chase and Phelan Law Firm, who continue their RICO crimes unchecked by any court we are aware of.

NEW EVIDENCE: THE MORTGAGE IS VOID In the Batipps case, it is concluded that the proper reading of 444 is that it provides that an improperly acknowledged mortgage is per se fraudulent. For the last 5 years, through 3 different lawsuits arising from alleged default, Chase has averred and sworn under oath that it holds the Note and Mortgage of $600k executed on 10/15/04 and that there was and is no assignments or other title chain complexities. Days ago, we discovered what we knew was true- Chase and Phelan conspired to lie to us and to this Court- to all Courts, in fact. See Exhibit A. It speaks for itself. The Note (as well as the mortgage as per exhibit) were ASSIGNED not TO CHASE but FROM CHASE to Wilmington Trust as trustee for Structured Assets Trust (SASCO-4XS) and therefore, quite and elegantly simply, Chase is proven to have no standing, Chase is proven to have committed fraud, Chase is proven to have perjured themselves and Phelan was the collusive co-conspirator executing all of this criminal strategy.

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DISCUSSION The Standard for Dismissal Under Fed. R.C.P. 12(b)(6) The dismissal of a complaint for reasons of fraud or factual insufficiency is explained by Fed. R.C.P. 12(b)(6) (Rule 12(b)(6)) as all civil complaints must set out sufficient factual matter to show that the claim is facially plausible Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In deciding a Rule 12(b)(6) motion, a court must accept as true all factual allegations contained in the complaint and construe all reasonable inferences drawn therefrom in the light most favorable to the plaintiff- unless proof is uncovered that evidences those presumed truthful averments as fraud and lies. As explained by the Supreme Court: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. In short, proof is in the pudding- and until now, we only knew that

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Chase was not the holder in due course, but an audit revealed the foundation of their false claim and fraud upon the court. Where a complaint pleads facts that are merely consistent with a defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief.Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). Applying the standard enunciated by Iqbal, the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) explained that courts should conduct a two-part analysis to determine whether a claim survives the Rule 12(b)(6) motion. First, a court must distinguish between the factual and legal elements of the claim. Second, a court must determine whether based upon the facts alleged the plaintiff has a plausible claim for relief. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft, 129 S.Ct. at 1949. A court may not accept as true threadbare recitals of the elements of a cause of action, supported by mere conclusory statements. Fowler, 578 F.3d at 210 quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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Until now, all we had was a he said we said Mexican stand-off now we have a smoking gun and Chase has its fingerprints all over it. NO DUE PROCESS BEFORE DEPRIVATION OF PROPERTY The Due Process clauses of the 5th and 14thAmendments to The Constitution of the United States provide a guarantee of procedural due process before property is taken, and that minimum due process must be maintained and enforced by the courts- the branch of the government with the power to decide these civil capital punishment cases of foreclosure, which is the most significant deprivation of life, liberty or property one may ever endure or is ever likely to traumatically occur. As the court is obligated to provide procedural due process in this matter, we demand a hearing as to our Petition To Open Judgment improperly entered by Chase, as well as in reference to their Motion To Recalculate Damages which ignores both Petition to Open/Strike/Set Aside and Notice of Appeal as well. As procedural due process consists of 1) Notice; and 2) Opportunity to be heard, we heretofore have not enjoyed one minute of on the record hearings in this very important matter whereby a plaintiff is fraudulently attempting to steal our home without standing to do so, and to date, been enabled (innocently perhaps) by the system of the courts which has not protected our rights.

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We asked for a hearing and were ignored- and never even saw the face of the judge in this case. There are only pleadings as a record, and despite the right to judicial process in foreclosure in PA and our responsive pleadings filed LAST YEAR (not to mention the answer and 500 pages of other pleadings we filed in the previous action regarding the identical cause of action) that should have not allowed the filing of a default praecipe, as we have not had our day in court. By refusing to provide us with a hearing on the Petition to Open timely filed, as well as compliance with your May 28th order citing statement of errors timely mailed, we have been deprived of our right to procedural due process and thereby estopped any process from lawfully proceeding to the Opportunity to be Heard? The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. U.S. Const. amend. XIV PROCEDURAL HISTORY In 2004 we bought a home for 750k, putting up 150k in cash. Only one of us signed the Note and both signed the Mortgage, which was not countersigned. At the time, we thought by fraudulent inducement that we were in fact being lent real money- cash of the bank called Chase.

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We deposited nearly 20k in the initial escrow account, and while we paid over four grand a month faithfully, a recent pleading by Plaintiff/Chase cites figures that are so wrong it should be a crime, literally. See Exhibit W (W for wrong). We made EVERY payment of over $4000 a month for 60 months straight until the crash of 2008 saw the loss of employment and income for both of us. In 2007, 2008 and 2012 J.P. Morgan initiated Foreclosure Action in Chester County Court regarding alleged default by Defendants. In the Foreclosure Action, J.P. Morgan sought to foreclose on the Mortgage. The Mortgage secured a note executed August 11, 2005 in the amount of $1,462,500 (the Note). Both the Note and Mortgage were originally executed in favor of Chase Home Finance LLC- and through three foreclosure lawsuits, no assignment was recorded nor averred nor mentioned nor admitted to. Why? Because the truth is the enemy of the criminal, and Chase is the mafia of Manhattan, the Feudal Lord of the Federal Reserve they are Butch Cassidy and the Sundance Kid without the looks, charm and panache. Faulty Default and the Non Event- No Proceedings Before The Court In order to comply with Pa.R.C.P. every complaint in mortgage foreclosure shall contain proof of standing- as recently the Superior Court decided in my brothers case (Chase v. Francis X Murray) so ruled and reversed judgment.

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Rule 237.5 for the form of notice of intention to enter a judgment by default: (b) This rule does not apply to a judgment entered (1) By an order of court, (2) Upon praecipe pursuant to an order of court, or (3) Pursuant to a rule to show cause. Official Note Rule 3284 requires that in proceedings to fix fair market value of real property sold, notice must be given pursuant to the requirements of Rule 237.1 et seq ABUSE OF DISCRETION by CHASE, PHELAN and INNOCENT ERRORS BY PROTHONTARY AND INACTION BY COURT There is nothing of record to establish justification for the procedural error of ignoring our petition to open, or our request that the court simply correct error and remand for trial as we had received a trial date listing! All of this should support the reversal of judgment and granting of our timely filed petition to open with answer and counter claims new matter.

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A petition to open a default judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, its decision thereon will not be disturbed on appeal. Kelly v. Siuma, 34 A.3d 86, 91 (Pa. Super. 2011), appeal denied, __ Pa. __, 42 A.3d 294 (2012). An abuse of discretion occurs when a trial court overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. Id. Appellants have failed to develop any argument in support of their position that the default judgment should have been opened. Our Rules provide that an appellants argument must contain citation to relevant authorities as well as reference to the portions of the record and evidence that support the issue on appeal. See Pa.R.A.P. 2119(b)-(d). The Sanction Issue The Phelan firm filed documentation averring fraudulently that Chase as their client was and still is the real party in interest as of the date of the filing of the lawsuit in all past and present foreclosure actions filed by the firm. Nevertheless, when we filed our responsive pleadings to this lawsuit, we sought and were denied sanctions against both Chase and Phelan. There was no hearing on sanctions.

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Without the opportunity to be heard, we were denied procedural due process as a prerequisite for being sanctioned. Without procedural due process, the court presumably had no authority to sanction the law firm. Theres another possible authority to use as ground to attack those who file suits without authority of real party in interest they are vexatious litigants. Because mortgage deeds have been resold by banks and bundled into tranches that are sold all over the earth, you can bet that 30 to 60% of all foreclosures filed by plaintiffs who dont have the real mortgage deed to prove they are the real party in interest. Therefore, Phelan and other law firms that function as foreclosure mills routinely file foreclosure actions without the authority of the real party in interest. That suggests that if you had ten cases filed by those attorneys, at least three of them would be without the authority of the real party in interest. If the cases were already resolved, the foreclosure actions would probably have been successful in that defendants probably didnt understand Rule 17(a) and unwittingly assented to lose their homes. I wouldnt bet that such past cases could be used as evidence of vexatious litigants since the attorneys won (if unfairly) those lawsuits.

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But if a defendant in one current foreclosure action found that Chase and Phelan have filed many foreclosures without a real party in interest, then there would be evidence of a recurring pattern of lawless conduct by bank and their law firm. Such pattern might be grounds for vexatious litigant charges, recurring barratry charges or even a RICO suit. We are filing a Federal lawsuit in the amount of one trillion dollars- no joke- to establish a legal aid fund for families unable to hire counsel. As a result of Chases wrongful and deceitful actions, investors purchased what were purported to be, but were in reality not, our Note and Mortgage was sold and thusly satisfied when conveyed to a securities backed trust on Wall Street in a pool of hundreds of other mortgage notes in the manner required to establish the trust in the manner represented- but then those derivatives lost value when home prices collapsed and the securitization and bifurcation of the note and mortgage presented, well, a major legal hurdle for judicial foreclosure. FACTS The factual and procedural histories of this action go beyond this case- and the complexity of this is compounded by the fact that the certified record on appeal is the sum of the pleadings, as no hearing was ever granted despite our requests for a hearing.

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For reasons quite legitimate, we did not file an answer but a half dozen motions as our responsive pleading. The Court waited until Thanksgiving to deny two of them- and then served the order to a random Malvern address (see docket). Add this to the fact that Judge Shenkin, who presided over the two year fight over the identical cause of action, issued an order in September 2012 that prohibited all parties from filing any pleadings regarding this cause of action- if we did so, they would be legally moot. This Court and this case never reconciled the paradox of these parallel jurisdictional claims, for Judge Shenkin could have simply ignored the pleadings of this case for lack of jurisdiction- but he clearly saw that Chase was forum shopping in bad faith. Chase did not file a single pleading for 10 months no reply to any of our motions to dismiss, or even a reply to our Motion for Sanctions. Then, without requisite 10 day notice, on 4/17/13 Chase filed a praecipe for the entry of default judgment and the Prothonotary entered judgment in his favor on that date. On 4/28/13 Appellants presented a petition to open tmely filed with answer and new matter, as well as a motion to strike the default judgment and a motion to stay the sheriff sale to the trial court, which resulted in absolutely nothing but the chirping of civil court crickets.

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We repeat- the petition and the motions were ignored. In our answer to complaint we set forth counterclaims, including wrongful foreclosure, fraud and usury, to name a few crimes we aver were committed. As stated, the Shenkin case was revivable- but they did not cite it as required on the cover page of new complaint. Therefore, both of which were active during the events at issue here, evidenced by the SHENKIN order in 9/13. COURT OF LAST RESORT Despite the fact we filed a petition to open the default judgment timely, we seek the relief of this court because the trial court refuses to address our pleadings. The trial court entered NO order denying or granting petition to open- and no refund of our $119 was issued- a gross injustice. In 2013, the case was scheduled for a trial and a notice of listing was mailed. Yet Chase did not manage the case and conduct discovery as per their burdenand we raised the fact that there had been no ruling on Petition by letters sent to Judge, Sheriff, Prothonotary, Phelan and Court Administraor: Exhibit M. Sensing the possibility of being stuck waiting for a decision on the Petition, we waited 29 days and since no action on the Petition was taken by the Judge and no error correction was executed by any party empowered to do so, we insured ourselves.

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Aware of the possibility of due process after the fact and filed a notice of appeal from the faulty default judgment, not order. As a result of intersection of the Rules of Appellate Procedure and existing case law, the relief requested by Appellants is paradoxical, as we could not wait past 30 days to see if the judge would rule. Although orders of court denying motions to strike or petitions to open default judgments are interlocutory, what is a judgment improperly signed by a prothonotary illegally? Pennsylvania Rule of Appellate Procedure 311 provides that [a]n appeal may be taken as of right from [a]n order refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the

alternative, no appeal may be filed until the court has disposed of each claim for relief. Pa.R.A.P. 311(a)(1). We could not have appealed from the trial courts denial of their petition to open until the trial court ruled on said Petition (or any of the Motions). Furthermore, the notice of appeal filed cited with specificity the trial courts failure to even address the petition to open the default judgment. As seen in K.H. v. J.R., 573 Pa. 481, 494, 828 A.2d 863, 871 (2003) ([A] notice of appeal from the entry of judgment will be viewed as drawing into question any prior non-final orders)

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While we know an order is not final for purposes of appeal unless it disposes of all the claims of all the parties, as per Pa.R.A.P. 341, and despite the filing of our answer and new matter counterclaims pending since no determination has been made on the Petition, many Motions nor the amount of damages- which Phelan unilaterally declared in violation of PA law and rules. Pa.R.A.P. 311(a)(1) created an exception to this rule where an appeal is taken from the denial of a petition seeking relief from a judgment by default. This is even worse- there is no denial, only non action that is illogically unappealable as you cannot prove the negative or appeal a non order. We contend that the trial court erred in failing to address the Petition to Open, the Motions for Relief from Error and Mistake, the Motion To Stay Sale, etc. The court should have striken the default judgment entered as Chase failed to mail us as well as attach to praecipe a copy of the 10 notice to enter default judgment prior to filing the praecipe for default judgment. DISCUSSION We know that we must exhaust all local remedies before seeking the attention of the higher Courts. But as the sale is still pending- only 3 weeks away- we must have the attention in this matter of an objective jurist. Our children, our lives are depending on due process.

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Where a fatal defect or irregularity is apparent from face of the record, the prothonotary will be held to lack authority to enter default judgment and default judgment will be considered void. Id. Chase Bank, N.A. v. Lupori, 8 A.3d 919, 92021 (Pa. Super. 2010). Pennsylvania Rule of Civil Procedure 1037(b) provides, in pertinent part, that [t]he prothonotary, on praecipe of the plaintiff, shall enter appealable as of right prior to the assessment of damages. Well, they did not let the Court compute damages. Thus, we aver this Court has jurisdiction to determine both this appeal and motion to stay sheriff sale despite the fact that the question of damages remains outstanding (see Motion to Reassess Damages by Chase and Reply, Exhibit R) This court has held that it is an elementary procedural safeguard to require that the party seeking entry of a judgment which deprives his opponent of his day in court should first shoulder the simple burden of submitting proof that he has given notice to his opponent that the opponent has come under a duty to appear in the case or suffer judgment by default. Rosser, 75 Pa. D&C.2d at 470-71. In the present case, we allege that we were not properly served with the 10 day notice, nor the orders sent to the wrong address, nor the service of sheriff sale notice was proper. In fact, it was served to a mentally disabled incompetent we care for without compensation. Not only may the prothonotary NOT provide equitable relief,

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nor compute damages without evidence, it is the duty of the prothonotary to insure that the prerequisites for entry of a default judgment have been satisfied before entering a default judgment. Bank One Delaware N.A. v. Mitchell, 2005 WL 1362010 (Pa. Com. Pl. 2005). Unless otherwise provided by statute or rule of court, a copy of all pleadings, petitions, motions, rules or answers thereto, or notices or other papers required to be served on another party, shall be served in the manner provided by Pa.R.C.P. 440 which governs the service of papers other than original Process. The 10-day notice was required to be served on us then pursuant to state rule, and that 10- day notice had to be attached to motion for default judgment. We were neither sent notice nor was notice purported to be sent by attachment to praecipe (yet the attorney swore under oath it was sent- perjury, simply). This limitation is consistent with Pa.R.C.P. 239(b)(1), which provides that local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly. Pa.R.C.P. 239(b)(1). Pa.R.C.P. 237.1 does require the 10-day notice to be filed with the filing of the praecipe for entry of default judgment. This is clear language in Pa.R.C.P. 237.1 should have prevented entry of default. Moreover our Petition should have reversed it. Yet it was not denied or granted- just ignored like other motions and pleadings.

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We also argue that the trial court erred in NOT DETERMINING a timely petition to open default judgment which was paid for by check for $119. In ignoring the petition to open the default judgment, the trial court not only has erred, but the Court, with respect, in fact abused their discretion as the certified record does not contain any order relating to filed petition to open. QUESTIONS Whether the entire case is precluded by res juditca/collateral estoppel? Whether the NEW EVIDENCE of assignment FROM Chase to a trust should move this court to dismiss this action, or perhaps a Federal Court hearing a 12(b) motion to dismiss based on fraud and new evidence? Whether the default judgment entered against the Appellants violated Pennsylvania Rules of Civil Procedure 237 et seq. and is therefore void? Whether the trial court erred and abused its discretion by NOT RULING on Appellants petition to open the judgment entered improperly without 10-day notice attached and with computed unsupported damages by default? JURISDICTION This court may address the issue of our petition only absent a misapplication of the law or a clear abuse of discretion by the trial court. See Boatin v. Miller, 955 A.2d 424, 427 (Pa. Super. 2007).

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We aver that the trial court erred in not denying but IGNORING their petition to open and motion to strike default judgment because judgment violated PA Rules of Civil Procedure 237 et seq. and is therefore void. INVALID JUDGMENT, WRIT and LIEN/RIGHT TO SALE Under Pennsylvania law, liens are classified into three categories: (1) common law liens; (2) statutory liens; and (3) equitable liens. An equitable lien is an equitable remedy designed to provide redress in cases where the obligors retention of property or proceeds thereof would constitute unjust enrichment. The creation of an equitable lien arises from proof of (1) an obligation; (2) a res to which the obligation attaches; and (3) an intent held by all the parties that the property is to serve as security for the obligation. Kern v. Kern, 892 A.2d 1, 8 (Pa. Super. 2005); Hoza v. Hoza, 448 A.2d 100, 104 (Pa. Super. 1982) (setting forth burden to establish an equitable lien). The Defendants also contend that an equitable lien granted to J.P. Morgan in the amount of $700k plus against the Property (the equitable remedy only a court can order) and imposed by the Chester County Court pursuant to NOT any signed order by a Judge but a mere fatally defective praecipe and motion for default judgment signed improperly by Prothontary and dated April 17, 2013 (the improper judgment) is voidable even without the timely filed Petition to Open.

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It must be struck as two fatal defects appear upon its face, quite glaringly. Lack on notice sent to us, and lack of notice attached to motion/praecipe. Additionally there should have been no computation of damages by anyone but the Court. THE FAULTY DEFAULT JUDGMENT Prothonotary does not have the judicial power to enter a monetary judgment for unliquidated damages (without any direction from a court) based solely on a plaintiffs request for a default judgment. At most (and this too is contested), the Prothonotary can only enter into the docket a default judgment for liquidated damages that can be mathematically computed from the attached documents. See Pa. R. Civ. P. 1037(b)(1) which provides: (1) The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages. Here, those documents (like the account statements) were not even attached to the plaintiffs foreclosure complaint as required by Pennsylvania law. See Pa. R. Civ. P. 1019(i).

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A fortiori, judgments entered by Prothonotary, and absent court direction, that include unliquidated damages (like the so-called reasonable attorney fees) are void. Pennsylvania Rule of Civil Procedure 237 delineates the procedure for the notice of praecipe for final judgment. Pa.R.C.P. 237.1(a) specifically provides: (2) No judgmentby default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered (ii)after the failure to plead and at least ten days prior to the date of the filing of the praecipe to the party against whom judgment is to be entered Pa.R.C.P. 237.1(a)(2)(ii). In the instant case, the trial court offered the following analysis relative to Appellants and Pa.R.C.P. 237 et seq.: A petition to strike a judgment will only be granted where a fatal defect in the judgment is apparent on the face of the record. See Williams [v. Wade], 704 A.2d [132,] 134 [(Pa. Super. 1997)] (quoting U.K LaSalle, Inc. [v. Lawless], 618 A.2d [447,] 449 [(Pa.Super. 1992)]). Here, the record does not evidence service of 10 day notice but shows Chase did not attach the ten day notice of intention to take default judgment required by Rule 237.5.

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We did not provide any other address of record for service of pleadings and notices. See Pa.R.Civ. P. 440(a)(2). Yet the Malvern address is there is black and white (Exhibit M). Pa.R.C.P. 237 did require Bank to file the ten-day notice of its intent to seek a default judgment with the praecipe for default judgment. See Pa. R.C.P. 237. Bank only had to certify in its praecipe to enter default judgment that the notice had been provided to Appellants in writing, at least ten days prior to the filing of Chases praecipe and was further obligated to attach to its praecipe a copy of the ten day notice. See Pa.R.C.P. 237.1(a)(3). A cursory reciew of the praecipe to enter default judgment reveals that Chase through Phelan did not comply with Pa.R.C.P. 237. What greater fatal defect in the judgment [that] is apparent on the face of the record can there be other than no notice and no attachment of notice? We contend that trial court erred and abused its discretion by ignoring Appellants petition to open the default judgment. To open a default judgment, the movant must promptly file a petition to that effect, must plead a meritorious defense to the claims raised in the complaint, and then provide a reasonable excuse for not filing a responsive pleading, and we did so within 10 days. Seeger v. First Union National Bank, 836 A.2d 163, 165 (Pa. Super. 2003).

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Here, petition to open was filed 10 days after the default judgment was taken. This was a prompt filing. See, e.g., McCoy v. Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa. 1973) (finding two and one-half week delay in filing petition to open after default was not prompt filing as a measure of timeliness). We certainly have shown we have a defense to merits of mortgage foreclosure action either in their petition or in answer, and the new assignment evidence. See Boatin v. Miller, 955 A.2d 424, 429 (Pa. Super. 2008) (explaining that in order to state a meritorious defense, a petitioner need only allege a defense that entitles him to a judgment in his favor, if proven at trial). We have done so. Our excuse for not filing an answer is a reasonable one. We received the redundant complaint despite the Shenkin case that should have been revived. No order was sent to us by Judge Griffith (sent to Malvern address) and no 10 day notice of intention to take default judgment were sent to the address of us, the Defendants/Appellants. ESTOPPAL AND RES JUDICTA Elkadrawy v. Vanguard Group., Inc., 584 F.3d 169, 173 (3d Cir. 2009) recognizing res judicata bars party from bringing claims that could have been brought as a part of prior action); Olick v. House (In re Olick), Adv. No. 10-38, 2011 WL 2565665, at *4 (Bankr. E.D. Pa. Jun. 28, 2011)

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The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought in that action arising from the same transaction or occurrence.). Chase decided to drag us through two years of discovery and on the eve of 2010 trial, dismissed it unilaterally without our consent or even notice. Therefore, as there was no external excuse for why they withdrew the case other than the knowledge of lack of standing and possible criminal charges for fraud, Chase deprived itself of the second bite at the apple, which is allowed for Plaintiffs who cannot, for a reason other than the prospect of losing, go to trial. And if it were a legitimate cause, they would have revived it two years later rather than file a new case- seeking in bad faith to distance itself from the very incriminating Shenkin record.

But they lied, about everything.

So long as the federal plaintiff effectively seeks to negate the force of the judgment, it is not possible for the federal court to exercise jurisdiction without exercising appellate review of the validity of the state court judgment. In re Sabertooth, LLC, 443 B.R. 671, 685 (Bankr. E.D. Pa. 2011).

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Since we have encountered inexplicable inaction from the trial court (a misnomer as we have not enjoyed one minute inside his courtroom) this Federal Court is not barred from yielding justice of a temporary injunction or righting the procedural errors and mistakes both intentional and innocent. Unlike many attempts to attract the gavel of the Federal jurists by foreclosure defendants, this case should be viewed as exempt from the preclusions presumed pursuant to the Rooker-Feldman Doctrine, as this court not only does NOT lack subject matter jurisdiction to hear the our claim, it has, we aver, a moral responsibility to act upon it- if only to deny it. We are stunned that our Petition was ignored along with a dozen other motions (attached as Exhibits) we filed and we do not accuse the Judge of any crimes, only unaccounted and unjustified inaction betrayed by the back and white proof of the docket truth. EXCEPTION TO ROOKER FELDMAN Even if our claim seems barred by application of Rooker-Feldman Doctrine, our claim regarding the invalidity of the judgment based upon the Mortgage assignment fraudulently concealed are not barred by issue preclusion as we brought all of these affirmative defenses up in both the case pleadings in this matter and the preceding action with Judge Shenkin which yielded over a THOUSAND PAGES.

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This record of discovery helped us and hurt them, resulting in their strategic dismissal/forum shopping which is the case at bar. We seek a determination by this Court that the Equitable Lien is not enforceable because the Mortgage and Note is NOT OWNED BY CHASE. Because the imposition of a sheriff sale is an equitable remedy the default judgment is improper. In cases where a mortgage is invalid due to fraud or forgery, Pennsylvania courts have refused to grant an equitable lien or relief of sheriff sale as a remedy. See, e.g., In re Fowler, 425 B.R. 157, 208 (Bankr. E.D. Pa. 2010) (recognizing that prior to imposing an equitable lien Pennsylvania courts consider the balance of equities, including the relative culpability and innocence of the parties, to determine whether equitable lien is warranted); Williard v. Millersburg Trust Co., 48 Pa. D.&C. 2d 149, 160 (Ct. Com. Pl. 1969) The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought in that action arising from the same transaction or occurrence. We did in fact raise these defenses may be remedied by this Court if the facts averred by us are indeed valid and true. We Satisfy the Requirements for Injunctive Relief

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A movant must, in accordance with Federal procedures, satisfy the applicable standards for injunctive relief. In re Wedgewood Realty Group, Ltd., 878 F.2d 693, 701 (3d Cir. 1989). To be eligible for injunctive relief a party has the burden of establishing each of the following: (1) a substantial likelihood of success on the merits; (2) the party will suffer irreparable harm in the absence of injunctive relief; (3) the harm to the party outweighs the harm to its opponent that may be caused by injunctive relief; and (4) injunctive relief is in accordance with public interest. The burden lies with the plaintiff to establish every element in its favor, or the grant of a preliminary injunction is inappropriate. P.C. Yonkers, Inc. v. Celebrations Party Seasonal Superstore, 428 F.3d 504, 508 (3d Cir. 2005) We agree that this is our burden, and we offer the proof of the newly discovered evidence, the fact that Chase made us litigate for two years IN VAIN and dropped the case when we DEFENDED IT SO WELL they knew they could not win- why else would they dismiss and WAIT TWO YEARS until AFTER the national settlement was signed before they REFILED WITHOUT MANDATORY referencing of the preceding case they should have simply revived as discovery was complete. So the fact that Chase has no standing by proof of the recent assignment we found meets the first condition (1) a reasonable likelihood of a successful defense; the scheduled sale of our home on 8/15/13 meets requirement two by placing us in a position of danger.

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This is real imminent, irreparable harm to the homeowners; our situation is similar to millions of others experiencing fraud in foreclosure and our home represents .0000000000001% (roughly) of JP MORGAN CHASEs balance sheet IF THEY OWNED THE LOAN so they would not be so harmed. Yet denial of an injunction we will either LOSE OUR HOME or be forced to FILE BANKRUPTCY to protect where our children sleep, eat and live- so we meet the third and fourth prong of the test as (3) the balance of the relative harm between the homeowners and the largest bank in America would be restrained; and (4) the balance between public interest in successful bankruptcy reorganizations and other competing societal interests. We established a likelihood of success on the merits by virtue of forcing their hand in 2010 when they blinked when we told them we knew not only that they did NOT own the note, but that if we went to Court, we may be able to not only disprove that by omission but evidence the identity of the true owner- which we do now today with Exhibit A. One of us, again, is a former attorney who despite being a calculus teacher now who can still retain deep inside my educated brain presumed our timely Petition would return litigation to the status of April 16th and proceed to discovery and trial.

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We had no reason to suspect the Prothonotary would allow judgment to be taken by default with such defects. We have offered a meritorious defense in the Petition, that is, one which is sufficient to justify relief if proven. See SEPTA v. DiAntonio, 618 A.2d 1182 (Pa. Commw. 1992). The trial court did not make a ruling for the Petition but we urge this court to assess our answer and counter claims for their level of merit- or, easier and quicker, see Exhibit A and anyone with a reasonable mind would agree that the default judgment should thus be opened and that, MOST IMPORTANTLY, the sheriff sale of our home- which Chase we can now prove is but a servicer (if that at all, as NO BILLS have been sent to us since 2010) should be stayed pending adjudication of the state appeal and the Federal lawsuit we are filing. By granting a stay and/or TRO the Court will allow for a due process decision of the merits of that issue as well as a dozen more, from standing to sanctions, fraud to financial accounting. Further, the default judgment entered may be opened by this court and remanded back to trial court as an alternative to the TRO and/or stay of sale. As Chase did not offer any explanation for its failure to respond to Counter claims as well as every motion we filed, their silence and failure to refute, deny or rebut averments of fraud, usury and other crimes both civil and criminal are by default stipulated as silence is assent.

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Violation of Rule 1037(b)(1) Unliquidated Damages and Void Judgments The amount of the illegal and improper April 17th 2013 default judgment by Chase for $700k plus AND THEIR MOTION FOR RECALCUALTION of damages which they curiously WITHDREW after our scathing REPLY cannot be computed from the documents that Chase attached to its foreclosure complaint because, well, Chase did not attach anything to the 3 page complaint nor with any of its pleadings- in fact, they failed to reply to ANY of our motions- they all went uncontested, even the Petition, and yet, all were denied or ignored. Act 6 (41 P.S. 503) Court And Only Court Can Determine Reasonableness of Attorney Fees in Foreclosure Proceedings Chase or its debt collector, Phelan, as noted above, calculated and determined the reasonableness of its own attorney fees and then made an award of those attorney fees ($5,000) to itself. There was no court determination of whether (or not) those fees were reasonable or even had been incurred by plaintiff. Pennsylvania Act 6, 41 P.S. 503 and the note and mortgage here, explicitly require that the court award lenders counsel attorney fees for foreclosure proceedings. See generally Bavarian Motor Works v. Neal, 882 A.2d 1022 (Pa. Super. Ct. 2005).

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If a borrower or debtor, including but not limited to a residential mortgage debtor, prevails in an action arising under this act, he shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on his behalf in connection with the prosecution of such action, together with a reasonable amount for attorneys fee. In addition, the court, not the lender, must determine who, if anyone, is the prevailing party. See LIPA, 503. No such court determinations were made here, as evidenced by the docket entries. For example, the note only authorized reasonable attorney fees as required by Pennsylvania law. Loan Interest and Protect Law, 41 P.S. 403 (LIPA). But the foreclosure complaint (and the default judgment) included fees of $5,000 that had only been alleged to be reasonable without any documentation. Any lender (or debt collector) under a note much less a mortgage without a Note and clearly under Pennsylvania law is not authorized to unilaterally determine the reasonableness of its own fees. LIPA, 503. Only a court, not the plaintiff acting sua sponte, can determine what foreclosure fees are reasonable. Pennsylvania law prohibits pre-foreclosure filing attorney fees in excess of $50, LIPA, 406(3)(e). Therefore Pennsylvania law limits fees to only those fees that are reasonable and actually incurred by the lender. LIPA, 406(2).

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Here, no pleading regarding the alleged $5,000 as a reasonable fee was incurred or already paid by the lender or trustee to its foreclosure counsel for this foreclosure proceeding was filed, or if filed, it was withdrawn nor was there any pleading that would support the reasonableness of those fees. Other Unauthorized, Undocumented AND Inaccurate Charges As set forth in our Verified Answer and New Matter it is believed and therefore averred that there were a number of other unauthorized, undocumented charges, both in our unpaid principal balance account and in escrow account. The charges, in part, are highlighted by our specific exhibit of the closing document (Exhibit Z) of the escrow we funded, and in our answer and New Matter, which are incorporated herein. Moreover, it is believed and therefore averred that (1) the prerequisites to the imposition of certain of those charges required advance notice which was not provided and (2) some of our payments were misapplied misallocated, including payments that were placed in non-interest bearing so-called suspense or unapplied balance accounts. These defenses are also set forth in our Verified Answer and are incorporated herein.

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FAILURE TO PROSECUTE IN GOOD FAITH Remember- Chase filed the complaint in June of 2012 and then disappearedthey stalled and waited until the right moment and without sending us a 10 day notice, obtained by guile their faulty default judgment no pun intended. We filed a timely notice of appeal despite the Petition to Open pending, as we frankly anticipated the reality of the lack of due process- the judge should have addressed this petition in April but now it is July and still- nothing. We provided to the trial court the ordered itemization of errors and mistakes both in a memo and in a motion that was filed but rendered moot as the prothonotary stated (in the docketthey gave us no notice of this) that the pleadings were unsigned- so we are unsure if the Judge saw them- there is a double standard epidemic against pro se litigants, and this comes from a former licensed attorney in three jurisdictions. We have paid all fees and we have filed a Motion to Stay Sheriff Sale in May with Chester County- but like the Petition, it has been ignored. According to the docket, a default judgment was entered that day. We seek to open that judgment in order and we know that, if our Petition had NOT been ignored, we would only be entitled to relief if we indeed show that (1) our petition had been promptly filed, (2) their failure to act before the default judgment was entered can be excused, and (3) they have a meritorious objection. See Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984).

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The petitions to open were filed 4/28/13 ten days following entry of the bogus judgment. Any court should, in a microsecond, find the petition to be timely. Ironically, Chases silence regarding their failure to respond to our Motion to Dismiss, our Motion For Sanctions, our Motion To Correct Errors, our Motion to Strike Judgment and last but not least the vast averments of our Counter-Claims prior to entry of the default judgment makes little legal strategic logic. Prior to the default, we had actively participated in the litigation by way of the slew of UNCONTESTED MOTIONS filed in JULY of 2012 and not determined until FOUR MONTHS LATER and then it was mailed to the wrong address in the docket. That is central to why we did not produce an Answer- coupled with the SHENKIN ORDER of 9/12 that rendered all pleadings relating to this cause of action MOOT and the bad luck of not being mailed order nor the trial listing reminder (sent to Malvern address). How can Chester County court system allow this to happen? We know what we are doing and we can still not stop this runaway train. How can the prothonotary deny us default judgment yet enter Chases default without a) the attached notice and b) without any accounting of nearly million dollars they seek and then disregard our default judgment praecipe filed by us properly structured with notice attachments and without seeking a sum specific as valid where a party, served, fails to answer or defend a suit filed against them?

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We ask the Court to recognize the pattern here, and ask themselves: 1) Why the double standard?

2) Why was Petition to Open ignored? We paid $119 and it was cashed

3) Why did the judge address the later filed Notice to Appeal (which we filed as insurance as we feared the injustice that occurred- the Judge would ignore it!)

We aver the trial court abused its discretion. The April 17th 2013 judgment was fatally defective, and the subsequent Writ was obtained before 10 days had elapsed- in effect, denying us the window for Petition to Open which we filed timely- exactly 10 days after the default judgment was improperly entered. As our petition was timely and contained the requisite showing that Appellants had a meritorious defense to the underlying action and a reasonable explanation for their failure to file a responsive pleading. We therefore ask the Court to reverse the trial courts order- excuse us- there is NO ORDER- we mean the judgment- a void judgment stamped with the signature of the prothonotary on the default judgment- and address the Courts unexplained negligence in NOT DENYING NOR GRANTING Appellants petition to strike or open the default judgment.

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We moved for a default judgment on its CounterClaims against Chase for failure to file an Answer thereto- and despite the ATTACHMENT OF 10 DAY NOTICE and NO REQUEST FOR SUM SPECIFIC MONETARY DAMAGES as only a court hearing can make such a calculation and determination- our praecipe was ignored by prothonary last week and NOT EVEN ENTERED as improper or defective- it was just tossed in the trash. The next day we sent a check for the appeal to them- and they certainly acknowledged and cashed that fee payment in the docket. Why? Why did they sign defective default judgment for Chase without notice attached and with unsupported damage amounts unverified and unaccounted for in the high six figures, which is illegal and improper as per PA law? SERVICE ERRORS Since we must articulate all errors and mistakes, it needs to be noted that Chase served the notice of sheriff sale to a non relative who is mentally disabled. According to Exhibit E, this service was performed at the incorrect Malvern address first, then the correct one. However, this is not proper service, as a mentally disabled nonrelative we voluntarily care for is not a competent adult by legal standards and did not inform us of the service, as he is clueless. FEDERAL DEBT COLLECTION ACT VIOLATIONS

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In violation of FDRCPA, Chase and Phelan sent to us a FAKE COURT NOTICE as evidenced by exhibit F (F for fake) which at first glance is clearly constructed to appear as an official court communiqu, just to intimidate and scare defendants. This is not only another example of the dozens of frauds throughout this caseit violates the Least Sophisticated Debtor rule by confusing the Defendant. Worse, it is fraudulent in content. The notice sent with the default judgment but BEFORE any writ was obtained, tells us that OUR HOUSE IS ALREADY SCHEDULED FOR SHERIFFS SALE ON 8/15/13. Repeat- before waiting to see if we filed a Petition to Open and before getting a proper Writ of Execution, heck- before going to the Sheriff to approve it all- they just play God and say that the sale is happening- in fact, on page two, it states that the property was seized- not going to be seized but the past tense suggesting to even an imbecile that the conveyance has already occurred (in direct contradiction of both reality and the boilerplate notice on page one advising us that we have rights and we can do this or that to stop the sale).

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CONCLUSION On April 17th 2013, the Defendants filed a praecipe for default judgment- yet they PAID THE FEE 3 days prior, before it was granted. Why? Its a sure thing when you are part of the system, sadlyWe contend that J.P. Morgans mortgage on the Property should be invalidated because, among other things, they ASSIGNED IT TO A TRUST IN 2005 and NEVER GOT IT BACK- and therefore quad erat demonstratum, this case must be dismissed at most, opened at least and the sale must be stayed. If we do not obtain a stay or TRO, we will be forced to stop the sale by filing bankruptcy, which will deepen the damage done to us by the private and public parties involved. Certainly, the Federal lawsuit for wrongful foreclosure and fraud we are filing will be augmented by any involuntary bankruptcy filing, and we will seek remedy for this wrongful sale if it proceeds without the allowance of due process and our DAY IN COURT. WHEREFORE, for reasons stated above and in our Verified Answer and counter claims, as well as numerous motions, it is respectfully requested that this Honorable Court strike and/or open the default judgment (for the reasons stated above and including the fact that it is void by failure to attach 10 day notice and computation of damages without the Court), the new evidence discovered proving that this entire case is based upon lies and Chase sold the Note and assigned the mortgage in 2005.

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Also, we seek the Court to allow us to obtain the default judgment ignored and denied by prothonotary (Exhibit D) by Chases failure to answer the new matter counter claims in our attached Verified Answer and New Matter attached to the Petition to Open we filed timely within 10 days of default judgment entry. Also, we ask the Court to declare the mortgage and any other claims or rights claimed by J.P. Morgan under the mortgage against the Plaintiffs, including any equitable liens invalid as per the newly discovered evidence of the assignment in 2005 FROM Chase to SASCO 4XS;(2) enjoin the original third foreclosure action 05579-12 as it is barred by collateral estoppel and based solely on the validity of the note and mortgage Chase and Phelan conspired for 5 years to conceal the true holder of and assignment to;(3) declare that J.P. Morgan may have committed fraud and this request for sanctions against them and Phelan required a hearing and finally that Chase has no valid claim in this case and should be dismissed with prejudice and award us reasonable attorneys fees and costs for defending the invalid action 3 times over FIVE YEARS all for what is a fraudulent (and frivolous) legal action that reflects a federal racketeering enterprise of a lily white collar nature or, in not, at least (4) grant a TRO or stay of sheriff sale pending the appeal and adjudication of our Federal lawsuit (5) provide any other relief which this Court may deem necessary.

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Chase and Phelan deserve sanctions and a check and balance for this egregious and continually unchecked abuse of discretion and fraud upon the courts. We have filed this Injunction Motion in an EMERGENCY BASIS because of the time restraints and the newly discovered evidence. We have hereby requested that the Court consider the matter on an expedited basis. Chases Complaint failed to comply with the pleading requirements set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and contained only vague conclusive statements. Most believe that remedy of any nature is barred by the Rooker-Feldman doctrine that precludes the Court from reviewing and/or overturning the state court judgments. But that is not applicable here- because the Court MADE NO JUDGMENTS! The Court ignored Petition and other Motions, and denied the existence of our counter claims when the default judgment we sought last week was ignored by Prothonotary. Therefore, as the trial court LITERALLY failed us by omission and inaction or intentional negligence or innocent incompetence, we seek not only the appeal of the non judicial default judgment but for this court to DO THE RIGHT THING- which is not siding with us on the merits of our defense/counter claims- but opening the judgment or issuing a stay pending the adjudication of due process in all forums and jurisdictions for this issue.

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But we realize that Federal courts are very cautious about this issue- and may think they must exercise abstention given that the validity of the Mortgage is the subject in the State Court that has demonstrated an inexplicable inconsistency in attending to his responsibility for objective determination of legal questions that CAN DESTROY LIVES if mishandled not unlike a criminal capital case. This court should impose a stay and have case remanded by another judge in the county- although we are filing a RICO/fraud federal lawsuit as well. As Chase has sued us three times for the exact issue we aver it is precluded by the doctrine of collateral estoppal and res juditca as it has had the opportunity to already have been fully litigated by the parties for more than five years. By this appeal and motion for stay as well as the counterclaims we aver are valid and not dead on arrival, this case continues to be litigated, and as per the NEW EVIDENCE it clearly involves several other defendants relating to the SASCO trust and none of whom are parties to the present action and do not appear to be subject to this Courts jurisdiction. Finally, we would have the opportunity to seek to be released from the Mortgage as the assignment not only released grantors (Chase and us) from the benefit of the mortgage and note, but also the responsibility.

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As the validity of the Mortgage assignment is undisputed and FILED BY PLAINTIFF in order to cover their assets they did so without fanfare, or any constructive notice to us or the Court. They did it to rewrite history, we theorize, as we informed them that this case was larger than a typical foreclosure, as an award winning documentary filmmaker is making a film about this particular case as well as the case involving my brother and parents- a foreclosure action against my relatives by none other than CHASE presided over by none other than Judge Griffith. With improbabilities like that, we should play Mega Millions. J.P. Morgan has NOT been determined to be the holder in due course and thus standing. Had Chase evidenced some ownership of the Note, this Court would indeed be prohibited from reviewing a decision by a state court, but as we cited, this appeal is anomalous as it seeks the action of the Federal court because the trial court has evidenced patterned abuse of discretion and bad faith whether innocent or intentional. We hope this Court refuses to tolerate Chas and Phelans successful manipulation of the court and their attempt to use the back door to steal a home whose loan we today have proven they DO NOT OWN. We ask the Court specifically to examine the collusive attempt by Chase and Phelan to strategically re-litigate matters that could have been decided in 2010.

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We are simply attempting to stop a sheriffs sale based on an illegal default judgment entered by a crooked law firm working for the largest bank in America who did not hold mortgage nor own the note at the inception of this case or the TWO that preceded it, and committed again and again and again fraud upon this and other Courts. Please be the Court that STOPS THIS RACKETEERING FRAUD- as we not only seek justice for us, but all those victimized in the past, present and future. Prepared By:

_______________________

______________________

________ DATE

Tanuja Singh Murray, JD, MBA Timothy Patrick Murray Pro Se Defendants/Appellants

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